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Prisoner Education Guide

Prison Legal News: January, 2004

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Volume 15, Number 1

In this issue:

  1. Prison Labor Fuels American War Machine (p 1)
  2. Verdict, Damages in Ohio Prisoner Disciplinary Case Reversed on Appeal (p 4)
  3. From the Editor (p 6)
  4. James Quigley November 9, 1950-October 7, 2003 (p 6)
  5. CCA Packs Positions With High-Profile Politicians (p 7)
  6. Two of Three Hawaii, Parole Board Members Resign, Shutting Board Down (p 7)
  7. Invisible Punishment: The Collateral Consequences of Mass Imprisonment (p 8)
  8. $250,000 Settlement Paid to Seattle Jail Guard Assaulted by Released Prisoner (p 9)
  9. Death at North Carolina Lock Up Spotlights Troubled Jail System (p 10)
  10. Santa Fe Guards Rape Prisoners, Neglect Kills Another (p 12)
  11. Massachusetts Jail Guards Assault Mentally Disabled Prisoner (p 13)
  12. New Iowa Law Creates Sex Offender Residency Zones (p 14)
  13. No Presumption of Collateral Consequences from California Disciplinary Proceeding (p 15)
  14. Seventh Circuit Remands § 1983 Medical Negligence Suit to State Court (p 16)
  15. Private Transport Company Settles Female Prisoner's Sexual Assault Suit (p 16)
  16. Kickbacks Dominate Fresno Jail Contracts (p 17)
  17. Frivolous Litigator Must Prepay Appellate Filing Fees (p 18)
  18. California Habeas Handbook, 4th Edition (p 18)
  19. $25,000 Awarded to Former New York Prisoner in Medical Malpractice Suit (p 19)
  20. Pool Cue Not a Weapon, Says Second Circuit (p 20)
  21. Retributive Denial Of Hepatitis-C Treatment States Eighth Amendment Claim (p 20)
  22. Sentences Upheld for TransCor Driver Who Raped and Terrorized Prisoners (p 21)
  23. New Hampshire Prison Commissary Surcharge Ruled an Illegal Tax (p 22)
  24. Maryland Detainee Chained to Pole Awarded Damages, but No Fees (p 22)
  25. Ohio Warrantless Arrestees Must Be Arraigned Within 48 Hours of Arrest (p 23)
  26. First Circuit Applies Mailbox Rule to § 1983 Complaints (p 24)
  27. Massachusetts Constitution Entitles Prisoners to Wear Kufi Caps (p 25)
  28. Diet of Raw Cabbage and Food Loaf States Eighth Amendment Claim (p 25)
  29. Bond Fees State Eighth Amendment Claim (p 26)
  30. Successive Petition Habeas Rule in Parole and Disciplinary Cases (p 26)
  31. Use of Pepper Spray States Eighth Amendment Claim (p 27)
  32. Oregon Prisoner Stated Negligence Claim Concerning Lost Property (p 27)
  33. Texas Prisoners May Challenge Loss of Good Time Class Via Habeas Corpus (p 28)
  34. Immunity Granted to Wisconsin Sex Offenders in Treatment (p 28)
  35. Alabama Highway Labor Kills Three Prisoners, Three More Injured (p 29)
  36. County Liable for Sheriff's Failure to Remove Invalid Warrant From Computer (p 29)
  37. Supreme Court Upholds Federal Tolling Statute; $80,000 Verdict Reinstated (p 30)
  38. Wisconsin Prisoners' Riot Charges Expunged From Records (p 30)
  39. $124,000 Awarded in New York Prison Bus Crash (p 31)
  40. U.S. Parole Law Amendment Ruled Ex Post Facto as Applied (p 31)
  41. Qualified Immunity Standards Tightened in Prison Murder Suit (p 32)
  42. No Constitutional Right to Privacy for Naked Woman Arrestee (p 33)
  43. Administrative Exhaustion Required in Pre-PLRA BOP Phone Suit (p 33)
  44. News in Brief (p 34)
  45. Evidentiary Hearing Required to Determine Communion Service Frequency (p 36)

Prison Labor Fuels American War Machine

On April 16, 2003, George W. Bush
visited the shop floor at the Boeing plant in St. Louis, Missouri. His 90-minute appearance drew several hundred men and women who help make the military's $48 million F-18 Hornet fighters, 36 of which were deployed during the Iraq war. The purpose of Bush's visit was twofold: to offer thanks to the blue-collar workers equipping US soldiers for their foreign adventures and to provide reassurance in an atmosphere of climbing unemployment.


One week prior to Bush's visit, the St. Louis plant announced layoffs for about 250 people. Already in 2003, Boeing had eliminated 5,000 positions nationwide, in addition to the 30,000 jobs the company cut in 2002. Bush's so-called "Hardware in the Heartland" tour, which included stops across the industrial midwest, was part of a post-war campaign strategy to capitalize on the US military prowess demonstrated in Iraq. "Sure, he talked about his domestic agenda," a White House official told Time magazine concerning the Boeing appearance, "but there were F-18s in the background."


But the "Hardware in the Heartland" tour skipped a number of locales where thousands of hard-working men and women were contributing more than their ...

Verdict, Damages in Ohio Prisoner Disciplinary Case Reversed on Appeal

Verdict, Damages in Ohio Prisoner
Disciplinary Case Reversed on Appeal


The U.S. Sixth Circuit Court of Ap-
peals has reversed and remanded a jury verdict and damages award in favor of an Ohio prisoner who claimed that he had been illegally infracted for drug abuse, in violation of due process, when Ohio prison officials confused him with another person with a similar name. See: Williams v. Wilkinson, 122 F. Supp.2d 894 (SD OH 2000) and 132 F. Supp.2d 601 (SD OH 2001) [PLN, January 2002].


Kenneth Allen Williams, a prisoner at Madison Correctional Institution (MaCI), a prison of the Ohio Department of Rehabilitation and Correction (DORC), was disciplined for drug abuse following a positive urine test. Kenneth Williams maintained that he had never taken a drug test at MaCI and that MaCI officials had confused him with MaCI prisoner Allen Williams. Nevertheless, the Rules Infraction Board (RIB) found Kenneth Williams guilty in a ten-minute hearing in which he was not allowed to call witnesses; he was subjected to various sanctions. Williams appealed the RIB decision through various DORC officers, but the decision was repeatedly affirmed.


Williams sued several DORC and MaCI officials under 42 U.S.C ...

From the Editor

This issue of PLN is dedicated to
the memory of James Quigley, a
long time contributing writer and prisoner rights activist who died in October, 2003. More details on his life and accomplishments are above.


We start this year of publishing PLN with a slightly new format change that allows us to include more articles in each issue of PLN. If you have not yet sent a donation or returned your reader survey form from the November issue of PLN, please do so. In an upcoming issue of PLN we will report the survey results.


Among our goals for this year are to increase PLN's circulation and advertising base to be able to both expand our size and impact. Combating prison and jail censorship continues to be an important, and time consuming task for PLN. We continue to have censorship problems with the Florida DOC censoring PLN based on the ads for discount phone services and pen pal services that we carry. Administrative efforts at resolution were unsuccessful and we expect to file suit on the matter shortly. The Bureau of Prisons ADX facility in Florence, Colorado, has maintained a blanket ban on PLN since 2000 claiming that any ...

James Quigley November 9, 1950-October 7, 2003

James Quigley
November 9, 1950-October 7, 2003

by Paul Wright


On October 7, 2003, long time Prison
Legal News contributing writer James Quigley was found hanging in his cell in the segregation unit of the Northwest State Correctional Facility in St. Albans, Vermont. His death was apparently a suicide.


Jim was one of PLN's early subscribers. In 1996 he became one of our first contributing writers and submitted articles on a regular basis thereafter. An outstanding jailhouse lawyer and outspoken advocate for prisoner rights, Jim and I corresponded regularly for nearly a decade. His ascerbic wit and humor, coupled with a strong intellect and perceptive insights always made his letters enjoyable and anticipated.


In 1980 Jim was sentenced to life in prison by a Broward county court in Florida for the 1979 shooting death of one drug dealer and the shooting of another. Jim challenged his conviction on various grounds over the years and had recently won a Florida state appeals court ruling in his favor. In 2001 Jim transferred from the Florida prison system to Vermont's to be closer to family in the Northeast.


During his imprisonment, Jim became an accomplished jailhouse lawyer, litigating civil rights and ...

CCA Packs Positions With High-Profile Politicians

CCA Packs Positions With
High-Profile Politicians

by Michael Rigby


In an ongoing effort to make up for
what it lacks in prison management skills, Corrections Corporation of America continues to place high profile politicians with inside knowledge of state and federal prison systems in top positions within the company, sometimes even creating positions for them.


In December 2002, CCA announced the appointment of Thurgood Marshall Jr.son of late Supreme Court Justice Thurgood Marshallto the company's Board of Directors and its newly created Nominating and Governance Committee. During the Clinton administration Marshall served as both Cabinet Secretary to the President and as Director of Legislative Affairs and Deputy Counsel to Vice President Al Gore. To accomodate the appointment, CCA expanded its Board of Directors from 10 to 11 positions.


CCA is also padding the company's ranks with state level politicians. In Tennessee, after the departure of Governor Sundquist's administration, CCA hired the state's former commissioner of Economic and Community Development, Tony Grande; commissioner of Human Services, Natasha Metcalf; and deputy to the governor for Health Policy, John Tighe. CCA, which is based in Nashville, placed all of them in vice-president level positions.


CCA's political posturing ...

Two of Three Hawaii, Parole Board Members Resign, Shutting Board Down

On April 2, 2003, Lani Rae


Garcia'became the second member of the Hawaii Paroling Authority (the board) within 30 days to resign from the board. Garcia's resignation left the three-member board unable to conduct business. Garcia was charged with misdemeanor abuse of a family member after having been arrested on March 19, 2003, following the filing of a complaint against her by her boyfriend Richard Krokidas. In 2002, Garcia had successfully completed a six-month deferred adjudication probation after entering a no-contest plea on misdemeanor domestic abuse charges involving her daughter. Garcia pleaded not guilty to the current charges and requested a jury trial.


On March 11, 2003, the board's chairman, Alfred Beaver, resigned following an investigation into whether he abused his authority. Beaver had been on paid administrative leave since November 22, 2002. Beaver's attorney said he had been mislead by a parole officer into altering parole and sentencing for several parolees.


The sole remaining member, Mary Tiwanak, whose term was due to expire June 30, 2003, was unable to preside over the 350-400 parole hearings a month normally required of the board. According to Russell Pang, spokesman for Governor Linda Lingle, parole hearings will remain ...

Invisible Punishment: The Collateral Consequences of Mass Imprisonment

Edited by Marc Mauer and Meda Chesney-Lind, The New Press, 2002, 368 pgs.

Review by Silja J.A. Talvi


Mass imprisonment, according to
criminal justice experts Marc Mauer and Meda Chesney-Lind, is the direct outgrowth of social and legal policies that have, for the past two decades, firmly favored incarceration over treatment, rehabilitation and alternate forms of sentencing.


With 450,000 people sent to prison every yearand nearly two million African Americans now under some form of correctional supervisionthe editors of Invisible Punishment make a compelling case that mass imprisonment has taken a heavy toll in the form of "collateral consequences."


Those consequences, as outlined in Invisible Punishment by some of the best thinkers in the fields of criminal justice and penology, don't stop at the experiences of down-on-their luck prisoners. As the contributors to this cohesive anthology explain sixteen well-written chapters, the collateral damage of mass incarceration is bleeding over into the very fabric of American society.


As the nation's prison population has swollen past the two million mark, evidence of overcrowded, understaffed and abuse-prone prison systems is not hard to come by. But The Sentencing Project's assistant director Mauer and respected criminologist and women's ...

$250,000 Settlement Paid to Seattle Jail Guard Assaulted by Released Prisoner

$250,000 Settlement Paid to Seattle Jail Guard
Assaulted by Released Prisoner


On July 30, 2002, King County Jail
guard Heather Van Vleck, who was assaulted and injured on the job by a violent prisoner just released from state custody, settled her damages claim against Washington State based upon a ...

Death at North Carolina Lock Up Spotlights Troubled Jail System

Death At North Carolina Lock Up Spotlights Troubled Jail System

by Michael Rigby


The death of Christopher Lee Wood
at North Carolina's Cherokee County jail has served to illuminate a sordid history of prisoner abuse, FBI investigations and lawsuits. It has also resulted in the sheriff and the chief jailer being criminally charged.


Coming just four months after a fire at another North Carolina jail killed eight prisoners, Wood's death has sparked a firestorm of controversy, including calls from legislators for a statewide investigation and a reform of the laws governing the state's county jails.


Death At Cherokee


The Cherokee County jail had a reputation for being tough on prisoners. Sheriff Alan Kilpatrick instituted a number of policies during his four years in office, ostensibly to enhance security. Prisoners wrote letters with crayons checked out to them by guards one color at a time. Visits were reduced to 10 minutes per week; moreover, prisoners had to choose between spending the time with their families or with clergy. When prisoners misbehaved, according to former guards, prisoners and their attorneys, Kilpatrick shut off the water for days, allowing toilets to overflow with human waste.


Kilpatrick says he turned off ...

Santa Fe Guards Rape Prisoners, Neglect Kills Another

Two female prisoners were raped by
Santa Fe jail guards within a ninety-day period. Santa Fe guards have been implicated in at least eight sexual assaults since 1999. Two of the victims were-minors.


In April 2003, John Robertson, 39, was charged with two counts of second degree criminal sexual penetration of a 16-year-old female prisoner at the Santa Fe County Youth Detention Center. Jail officials from the juvenile facility declined to comment about the incident.


Most recently, an unnamed 39-year-old guard was accused of raping a female prisoner in the Santa Fe County Jail on June 13, 2003. Sheriff Greg Solano would say only that the case was "still under investigation..."


The victim was taken to St. Vincent Hospital but "due to circumstances surrounding the case, a rape kit was not done." As of June 17, 2003 no administrative action had been taken against the guard.


Substandard medical conditions at the Santa Fe County Detention Center (SFCDC) prompted federal investigators to declare that facility unconstitutional. Sanitary conditions caused such concern that Warden Cody Graham and Major Greg Lee were removed from their jobs. It was under these inhumane and insensitive conditions that Jimmy Villanueva died.


SFCDC is run by Utah ...

Massachusetts Jail Guards Assault Mentally Disabled Prisoner

Massachusetts Jail Guards
Assault Mentally Disabled Prisoner

by Michael Rigby


Six Essex County jail guards were
suspended and one fired after they assaulted a mentally challenged prisoner in the jail infirmary by forcing him to eat cake while handcuffed. Author Austin, a mentally challenged prisoner who suffers from fetal alcohol syndrome and, according to a source at the jail, has the mental capacity of a third grader, was called to the infirmary of the Essex County Correctional Facility in Middleton three times on March 30, 2003. While there, guards gleefully humiliated him by forcing him to kneel and eat cake while his hands were cuffed behind his back. A source at the jail said "They were pushing his face down into the cake, flicking his ears."


The guards, apparently inured by the culture of impunity present in so many jails and prisons, performed the assault in full view of a video camera mounted in the jail infirmary. Essex County Sheriff Frank G. Cousins Jr. said, "All of my employees have full knowledge that we have cameras in the common areas."


Captain Elaine Bushway, a 17-year veteran, was present during the assault but did nothing to stop it. "On the tape ...

New Iowa Law Creates Sex Offender Residency Zones

A new Iowa law, passed in 2002, prohibits any sex offender who has victimized a child from living within 2,000 feet of a school or child-care center. The law has effectively exiled these ex-cons to enclaves on the outskirts of town, far from any family or friends.


From his room, 24-year-old Kevin Zahnd can see nothing but a few trees, an empty road and a gravel parking lot. His room is as stifling as it is barren. He has no phone. He uses a garbage bag for a closet, and his mattress is as thin as the one he left behind in prison. The picture on his banged up Zenith TV wavers; the cable company doesn't reach that part of town.


Zahnd lives in a residential hotel so remote it doesn't even have a name. But its one of the few places in Waterloo where Zahnd convicted of sexual abuse for impregnating a 13-year-old can live legally. He is prohibited by the 2002 law -described as one of the toughest in the nation from living within roughly six city blocks from even a home day care center. Zahnd's living options under the law? Two residential motels ...

No Presumption of Collateral Consequences from California Disciplinary Proceeding

by John E. Dannenberg


The Ninth Circuit US Court of Ap-
peals held that in a 28 U.S.C. § 2254 habeas proceeding, a guilty finding in a California state prison disciplinary proceeding would not be accorded a presumption of collateral consequences.


Stephen Wilson, sentenced to 25 years-to-life for first degree murder in 1982, escaped from Folsom State Prison in 1984. Apprehended in 1992 in the United Kingdom (UK), he was extradited to the U.S. pursuant to Extradition Treaty, 28 U.S.T. 227. While this treaty permits extradition for murderers, it does not extradite for the offense of escape. When back in California, the Sacramento County District Attorney's office dismissed escape charges when UK officials declined to grant a waiver of the exclusion of extradition for escape.


However, the California Department of Corrections (CDC) prosecuted a serious disciplinary violation (CDC 115). Wilson admitted he had escaped, but pled not guilty on the ground that the Extradition Treaty's exclusion of escape immunized him from disciplinary charges as well. CDC disagreed, and assessed him 150 days loss of good-time credits, 90 days loss of privileges, 10 days confinement to quarters and a 12 point increase in his classification ...

Seventh Circuit Remands § 1983 Medical Negligence Suit to State Court

Seventh Circuit Remands § 1983 Medical
Negligence Suit to State Court


The Seventh Circuit U.S. Court of Appeals remanded a prisoner's respondent superior (supervisory) medical negligence claim to the Indiana state courts, because although the claim was not actionable under 42 USC § 1983, it could be heard under state tort law.


William Perkins, a probation violator, was beaten by another prisoner at the Grant County Jail in Marion, Indiana. Twice, jail doctors sent Perkins to the hospital where he was found not to be in serious distress, and even though he complained that for three days he could ingest no fluids - even his saliva - and had requested an IV. Hospital doctors only prescribed Tylenol.


Connie Perkins called Sheriff John Lawson to complain that William was in great pain, could not eat or drink, was vomiting and could not walk or stand. The next day, Lawson reported to Connie that the doctor said "he is okay." After eight days, William was released on recognizance. Connie took him to the hospital, where he was placed on life support with neurological problems.


Perkins sued Sheriff Lawson in federal court under both § 1983 and Indiana negligence law on respondeat superior and medical negligence ...

Private Transport Company Settles Female Prisoner's Sexual Assault Suit

Private Transport Company Settles
Female Prisoner's Sexual Assault Suit


Extraditions International, Inc., now
defunct, and its successor company, American Extraditions, Inc., settled with a female prisoner who claimed she had been sexually harassed and sexually assaulted by a company guard during transport.


Robin Darbyshire, a 43 year-old female resident of Nevada was extradited to Routt County Jail in Steamboat Springs, Colorado. Extraditions International handled the transport under contract to Routt County Jail. Darbyshire was in transit from May 13, 2001, through May 16, 2001, under supervision of guards Richard Almendarez and Darryl Hudnall. The trip passed through parts of five states. At the time of the trip, according to the complaint, the company lacked legally-required insurance and carrier permits. Further, Almendarez, who was armed, had been previously fired from a Texas prison for assaulting a prisoner and not reporting it


Darbyshire claimed that she was cuffed and shackled too tightly almost all of the trip by Almendarez. Her hands were numb from the cuffs. Her boots were cut by the shackles, and her abdomen was chafed raw by the belly chain. She also claims that Almendarez drove the van erratically at high speeds, hitting bumps so hard that prisoners ...

Kickbacks Dominate Fresno Jail Contracts

Close scrutiny is being given to the
Sheriff's Foundation for Public Safety and its leader, Fresno County Sheriff Richard Pierce. Many large donations received by the organization come from companies that have contracts with Fresno County. Pierce and eight other high-ranking sheriffs have influence over who is awarded these contracts.


Canteen of Fresno contracts with Fresno County to supply various commissary items to county prisoners. Gross sales for Canteen have netted between $1.2 and $1.6 million annually over the last five years. Canteen also contributed a hefty $50,000 to the Sheriff's Foundation.


Aramark was awarded a $3.9 million contract to provide meals for 2,900 prisoners in the Fresno jail. They also gave $6,500 to the foundation. T-Netics provides the prisoner phone service for the jail. Their donation to the foundation was $2,500.


What's troubling is the fact that this cadre of sheriffs actively and enthusiastically solicit these contributions from contracted companies. Richard Kriegbaum, the former president of Fresno Pacific University, with 25 years experience as a consultant to the governing boards of various non-profit organizations, says that the current practice of the Fresno Sheriff's Foundation has "the appearence of ...

Frivolous Litigator Must Prepay Appellate Filing Fees

Frivolous Litigator Must Prepay
Appellate Filing Fees


A divided Tenth Circuit U.S. Court of
Appeals ruled that a prisoner who had been labeled a "three strikes" frivolous litigator could raise a jurisdictional appellate question, but he could not gain an appellate ruling on the merits of his suit without first prepaying the appellate filing fee.


Oklahoma prisoner Brian Dubuc had filed three previous frivolous suits in federal district court, in forma pauperis. When Dubuc took an appeal to his latest suit's rejection below, the Tenth Circuit first answered the threshold question whether it even had jurisdiction to hear his appeal before he prepaid the full appellate filing fee.


28 U.S.C. § 1915(g) states that "in no event" shall a prisoner who has had three or more prior actions dismissed as frivolous bring a civil action without prepaying the full filing fee, except if he is in imminent danger of serious physical injury.


But in tension with §1915(g) is Federal Rule of Appellate Procedure 3(a)(2), which permits courts to potentially consider the merits of an appeal without the prepayment of appellate fees.


Relying on the maxim that a specific statutory command trumps a general ...

California Habeas Handbook, 4th Edition

by Attorney Kent Russell, Sept. 2003, 67 pages plus appendix

Review by John E. Dannenberg


The completely revised 4th Edition
of the California Habeas Handbook, a self-help manual on the preparation of both California and federal habeas corpus petitions, guides pro per litigants in avoiding the pitfalls of procedural traps that can foreclose the unwary from ever gaining a collateral review of their convictions on the merits. PLN readers will recognize author Kent Russell from his quarterly column, Habeas Hints, which both teaches prisoners the basics of habeas litigation as well as alerts them to the most recent important court rulings. Earlier Habeas Hints are now integrated into the 4th Edition's text.


Russell points out that the Handbook is not intended to replace scholarly treatises on habeas corpus law. Nor does it address death penalty litigation. It is aimed at providing the state prisoner with thorough, easy to follow and up-to-date guidance on how, in the absence of an attorney, he can collaterally attack his conviction or sentence after he has lost his direct appeals. A recurring theme in the Handbook is the reference to AEDPA (Antiterrorism and Effective Death Penalty Act) limitations, which have reshaped habeas litigation since ...

$25,000 Awarded to Former New York Prisoner in Medical Malpractice Suit

$25,000 Awarded to Former New York
Prisoner in Medical Malpractice Suit

by Lonnie Burton


On February 13, 2003, a State Court
of Claims judge in Albany, NY ruled that a former prisoner at the Washington Correctional Facility (WCF) was entitled to an award of $25,000 to compensate him ...

Pool Cue Not a Weapon, Says Second Circuit

The U.S. Court of Appeals for the Second Circuit reversed a district court's dismissal of a federal prisoner's disciplinary appeal after finding that a pool cue, per se, was not a weapon.


In August 1999 while enjoying a game of pool, Glenn Wallace, a federal prisoner in New York State, became involved in an altercation with another prisoner. Wallace struck that prisoner with a pool cue. Thereafter, Wallace was convicted by a prison disciplinary tribunal of violating the U.S. Bureau of Prisons' (BOP) Prohibited Acts Code (PAC) § 224, assault, and also violating § 104, possession of a weapon.


Wallace appealed his conviction on the § 104 charge arguing that the possession charge was improper because a pool cue is not a weapon. The BOP rejected Wallace's appeal stating that "you clearly used it as such (striking the victim in the head), making the charge highly appropriate."


Wallace then challenged his § 104 conviction by filing in U.S. District Court a petition for writ of habeas corpus under 28 U.S.C. § 2241. The district court granted the government's motion to dismiss for failure to state a claim upon which relief can be granted. Wallace appealed.


In ...

Retributive Denial Of Hepatitis-C Treatment States Eighth Amendment Claim

Retributive Denial Of Hepatitis-C Treatment
States Eighth Amendment Claim

by John E. Dannenberg


A U.S. district court in New York has
held that when a state prisoner's doctor-ordered Rebetron Therapy for his Hepatitis-C (Hep-C) disease was denied as punishment for a dirty urine test, deliberate indifference to his serious medical needs had thus been demonstrated sufficient to state a claim of cruel and unusual punishment under the Eighth Amendment.


James Johnson, incarcerated at Green Haven Correctional Facility (NY), was diagnosed in 1997 with Grade III, Stage III Hep-C disease with beginning liver cirrhosis, and placed on Interferon therapy the Food and Drug Administration's (FDA) approved treatment as of February, 1998. In May, 1998, Johnson had a dirty urine test for marijuana. In June, 1998, the FDA approved a new combined drug treatment called Rebetron Therapy Combination. This became the only FDA approved treatment for Hep-C patients who had relapsed after a treatment on Interferon alone - Johnson's precise situation. In February, 1999, Johnson's doctor at Green Haven prescribed Rebetron Therapy as soon as possible.


However, under Department of Corrections (DOC) policy, his Rebetron Therapy was refused because of his earlier dirty urine test, upon the order ...

Sentences Upheld for TransCor Driver Who Raped and Terrorized Prisoners

Sentences Upheld for TransCor Driver
Who Raped and Terrorized Prisoners

by Matthew T. Clarke


A Texas court of appeals has upheld
a TransCor driver's two-year sentence for having sex with a prisoner and ten-year sentence for sexual assault of a female prisoner while terrorizing the other prisoners in the van.


Michael Jerome Edwards was a driver for TransCor America, a private prisoner transport company owned by Corrections Corporation of America. The victim was arrested in Corpus Christi, Texas, on an outstanding warrant from Harris County, in Houston, Texas. On October 19, 1999, Edwards and David Jackson, another TransCor driver, were assigned to transport the victim to Harris County in a van. The van was divided into three screened off areas with 8" x 8" portholes for feeding the prisoners.


All of the prisoners in the van were handcuffed and shackled with a chain running from the handcuffs to the shackles. Three prisoners and the victim of the sexual assault were in the van. During the trip, Edwards inserted a gun in the victim's vagina. Together with Jackson, Edwards (1) pulled to the side of the road and threatened to shoot all the prisoners in a mock escape; (2 ...

New Hampshire Prison Commissary Surcharge Ruled an Illegal Tax

by John E. Dannenberg


The New Hampshire Supreme Court
held that state law RSA 622:7-b, which imposed a 5% surcharge on the price of all commissary sales, amounted to a disproportionate tax in violation of the New Hampshire Constitution. The 1999 law, whose beneficiary for the first $750,000 collected was the victims' assistance fund, replaced an earlier law which had levied a constitutionally permissible 1% sales surcharge for maintenance and operation of the commissary. Although the court recognized the "significant public policy considerations underlying victims' assistance," it was ironically this feature that was the law's undoing.


Darren Starr and 15 other prisoners unsuccessfully sued Governor Jeanne Shaheen in superior court alleging that the surcharge violated New Hampshire's prohibition against disproportionate taxation. New Hampshire has no sales tax as such. It does permit levies for services delivered, provided the charge is in "due proportion, so that each individual's share, and no more, shall fall upon him." The Supreme Court noted on appeal, however, that a levy on prison commissary sales, but upon no other sales in the state, placed an unconstitutionally disproportionate burden on prisoners - indeed only on prisoners - to endow the victims' fund.


The state ...

Maryland Detainee Chained to Pole Awarded Damages, but No Fees

The U.S. Fourth Circuit Court of Appeals has affirmed in part a jury award of damages against Maryland police officers who left an arrestee tied to a pole in a deserted parking lot. The court also affirmed denial of the plaintiff's motion for attorney fees.


On August 17 ...

Ohio Warrantless Arrestees Must Be Arraigned Within 48 Hours of Arrest

Ohio Warrantless Arrestees Must Be Arraigned
Within 48 Hours of Arrest


The U.S Court of Appeals for the 6th
Circuit recently held that the 14th Amendment to the U.S. Constitution requires warrantless arrestees to be arraigned within 48 hours of arrest. This was a civil rights action under 42 U.S.C. § 1983, filed after an Ohio man was detained on a driving while intoxicated (DWI) charge for nearly 72 hours without being arraigned.


On August 19, 1995, Lloyd Alkire was arrested for DWI. He was taken to the Holmes County (Ohio) Jail, where he was not arraigned until August 22, 1995, about 72 hours after his arrest. On September 1, 1995, Alkire pleaded no contest to the DWI. He was sentenced to fifteen days in jail and $620 in fines and costs, which he agreed to pay in monthly installments.


On November 15, 1995, the trial court issued a show cause letter directing Alkire to appear in court on December 13, 1995 to explain why he had not made any payments on his fine. Alkire wrote the court, asserting financial difficulties as his reason for not paying, but he did not show up for the hearing. He ...

First Circuit Applies Mailbox Rule to § 1983 Complaints

by Matthew T. Clarke


The First Circuit has held that the
PLRA's exhaustion of remedies requirement is an affirmative defense, not jurisdictional, and failure to include proof of exhaustion of state remedies will not support sua sponte dismissal. The court also applied the mailbox rule to §1983 complaints and stated that the prepayment of a filing fee is not a jurisdictional prerequisite in filing a lawsuit. The court also held that the failure of some of the prisoners to sign a notice of appeal was not jurisdictional and could be corrected.


Rick Cassanova, Demond Hicks, Kevin Bush, Antwyan Pridgett, Joseph D. Williams, Gary Bon, and John Carter, Massachusetts state prisoners, filed suit in federal court under §1983, alleging they were beaten, deprived of medical treatment, and otherwise seriously mistreated after a guard was assaulted in their housing unit on April 3, 1995. Cassanova mailed the suit to the court by giving it to prison officials on March 18, 199,8. In an enclosed cover letter, Cassanova explained that the filing fee would arrive separately. Carter and another prisoner then requested that checks for $120 and $30 be issued from their trust funds to the court to pay the filing ...

Massachusetts Constitution Entitles Prisoners to Wear Kufi Caps

Massachusetts Constitution Entitles
Prisoners to Wear Kufi Caps


A Massachusetts Appellate Court has held Article 46, §1 of the Amendments to the Massachusetts Constitution allows prisoners to possess and wear kufi caps. Saifullah Abdul-Alazim, a prisoner at the Massachusetts Correctional Facility at Cedar Junction, was placed in the Departmental Disciplinary Unit (DDU) and was prohibited from wearing his kufi. His numerous requests to possess and wear his kufi were denied, and he filed a complaint in Superior Court, which was dismissed on summary judgment. The dismissal was based on prison officials' asserted penological justification for the rule: to prevent kufi caps from hiding contraband or dangerous instrumentalities.


Abdul-Alazim appealed. While his complaint alleged First Amendment and Article 46 claims, only the latter was briefed and addressed by the Appellate Court. The Court found the record showed prisoners in open population and the Disciplinary Segregation Unit, a higher security cell area than DDU, could wear and possess a kufi; another prisoner wore his kufi in the DDU for six years; in the winter months prisoners are given a thick stocking-like knit hat, which is more conducive to hiding contraband than the kufi, which is a skull cap. These factors disputed prison ...

Diet of Raw Cabbage and Food Loaf States Eighth Amendment Claim

The U.S. Court of Appeals for the Second Circuit reversed a district court's dismissal of a prisoner's claim that he suffered cruel and unusual punishment when he was placed in solitary confinement and fed a nutritionally inadequate diet.


Darryl Phelps, a prisoner at New York's Southport Correctional Facility, complained that he was wrongly charged with throwing a styrofoam cereal bowl at N. Kapnolas, a prison guard. As punishment, Kapnolas placed Phelps in solitary confinement where, for 14 days, he was fed a diet consisting solely of raw cabbage and a bread-like loaf that appeared to contain ground vegetables.


Phelps complained that because the diet was nutritionally inadequate, he lost 30 pounds and he suffered severe abdominal pain and emotional distress, all in violation of his Eighth and Fourteenth Amendment rights.


Phelps' original complaint was filed in July 1994. The district court dismissed for failure to plead the essential elements of a 42 U.S.C. §1983 action and for failure to state a claim. On appeal in August 1997, the Second Circuit affirmed in part, vacated in part, and remanded with instructions for the district court to consider whether the imposition of the restricted diet deprived ...

Bond Fees State Eighth Amendment Claim

The U.S. Court of Appeals for the
Seventh Circuit reversed a district court's dismissal of a lawsuit by arrestees who challenged Illinois counties' practice of charging a bond fee as a condition of release from jail.


Six former arrestees brought an action under 42 U.S.C. § 1983 on Eighth Amendment grounds of excessive bail. They complained that at least 19 of Illinois' 102 counties charge a bond fee to detainees who are released on bail or on their own recognizance. The bond fees, authorized by Illinois state law, vary between $1 and $45 and are collected in addition to any bail amount due.


Four of the plaintiffs each paid an $11 bond fee for release from Kane County Jail while two plaintiffs each paid a $15 bond fee for release from DuPage County Jail. Plaintiffs asked the district court for Fed.R.Civ.P.23 class certification to include all individuals affected by the procedure in 19 Illinois counties. The district court granted defendants' motion to dismiss the action and plaintiffs appealed.


Three questions were presented for review on appeal. First, should the district court have dismissed the individual plaintiffs' suit against the two counties that charged ...

Successive Petition Habeas Rule in Parole and Disciplinary Cases

Successive Petition Habeas Rule in
Parole and Disciplinary Cases


The Seventh and Ninth U.S. Circuit
Courts of Appeal, in unrelated cases, have construed and applied the "second or successive petition" rule of 28 U.S.C. § 2244(b). The rule requires that a state prisoner bringing a "second or successive petition" for habeas corpus relief under 28 U.S.C. §2254 first seek permission of the federal appeals court to file the petition.


In the Seventh Circuit, David Harris, an Indiana prisoner, was sanctioned by the prison conduct board for a rules violation and lost good-time credit, thus lengthening his imprisonment term. Harris filed a habeas petition under 28 U.S.C. §2254 claiming violation of his due process rights. The district court dismissed the petition and denied a subsequently-filed Fed.R.Civ.Proc. 60(b) motion to vacate the dismissal.


Harris appealed the dismissal and the rule 60(b) denial. The Seventh Circuit dismissed the appeal as untimely and affirmed the rule 60(b) denial. Harris then petitioned to file a "second or successive petition" on the basis of new evidence. In his application, Harris questioned whether, §2244(b) applied to §2254 petitions that arise from prison disciplinary ...

Use of Pepper Spray States Eighth Amendment Claim

The U.S. Court of Appeals for the
Eighth Circuit affirmed a district court's denial of summary judgment for prison guards who pepper sprayed a prisoner and threw him to the ground.


In October 1998, prison guards confiscated a radio from the cell of Byron Treats, a prisoner at Arkansas' North Central State Prison. Treats was later summoned to the office of Lt J. Beaty where he signed a confiscation form. James Morgan, a prison guard at Beaty's office, demanded that Treats accept his copy of the form. Treats declined, Morgan insisted, Treats turned to talk with the lieutenant and, without warning, Morgan sprayed Treats in the face with a prolonged burst of capsaisin pepper spray. Beaty, absent provocation, ran out of his office and slammed Treats to the floor where he was handcuffed.


Treats was taken to the prison's infirmary where his eyes and skin were flushed with water. He was cited for a major disciplinary violation, placed in solitary confinement, sentenced to 15 days of punitive isolation, and relieved of 90 days' good time. His administrative appeals and grievance were denied.


In January 1999, Treats brought an action in U.S. District Court under 42 ...

Oregon Prisoner Stated Negligence Claim Concerning Lost Property

The Oregon Court of Appeals reversed a trial court's dismissal of a state prisoner's negligence action against the state and a prison guard related to the guard's handling of his property, which resulted in the loss of his glasses. The court of appeals accepted the State's concession that the trial court erred in granting the State's motion for judgment on the pleadings.


Alvin Canell, a prisoner of the Oregon State Penitentiary, was placed in segregation and guard Vicki Brownley was assigned the task of removing his property from the cell he previously occupied. Upon release from segregation Canell discovered that his glasses were missing from his property.


Canell filed a tort action, against the State and Brownley, alleging various acts of negligence which resulted in the loss of his glasses. The trial court granted the State's motion for judgment on the pleadings and Canell appealed.


On appeal, the court accepted the State's concession that it was not entitled to discretionary immunity, and, therefore, the trial court erred in granting judgment on the pleadings on that basis. The court concluded that Brownley's violation of Oregon Department of Corrections (ODOC) rules related to the ...

Texas Prisoners May Challenge Loss of Good Time Class Via Habeas Corpus

Texas Prisoners May Challenge Loss
of Good Time Class Via Habeas Corpus

by Matthew T. Clarke


The Fifth Circuit court of appeals has
held that prisoners whose mandatory release dates are adversely affected by a change in their good time earning class resulting from prison disciplinary actions may challenge the actions via habeas corpus. It also held that the one-year AEDPA limitations period applies to habeas challenges to prison disciplinary actions, starting from the date of the disciplinary hearing.


Edwin Earl Kimbrell, a Texas state prisoner, filed a habeas corpus action under 28 U.S.C. § 2254, contesting the outcome of a prison disciplinary action which resulted in an adverse change in his good time earning status (class). The district court dismissed the habeas action as untimely. Kimbrell appealed.


In a case of first impression, the Fifth Circuit held that a Texas prisoner who is eligible for mandatory supervision and whose mandatory supervision release date is adversely affected by a reduction in class in a prison disciplinary action may challenge the outcome of the prison disciplinary action via federal habeas corpus.


The Fifth Circuit also held that the one-year AEDPA limitation period of 28 U.S.C. § 2244(d)(1 ...

Immunity Granted to Wisconsin Sex Offenders in Treatment

Immunity Granted to Wisconsin
Sex Offenders in Treatment


The Wisconsin Supreme Court has
held that Gary Tate is entitled to immunity for statements made at court imposed sex offender treatment, and the revocation of his probation for refusing to make admissions to his crime without immunity was improper. Tate, 47, was convicted after a jury trial of sexually assaulting his former stepdaughter on at least three occasions. After Tate was convicted, the trial court stayed a 25 year prison sentence, placed him on 20 years probation, and required him to "participate" in all counseling programs arranged by probation agent[s], including sex offender treatment.


At trial, Tate testified he did not engage in sexual misconduct. When his group treatment began, Tate was placed in a "denier's group" to help him deal with his denial. As a part of the program, Tate was required to sign a release authorizing disclosure of any information acquired to Tate's "probation and parole agent, the Department of Corrections and any officer of court, or any court proceedings." Tate signed the form, but on advice of counsel refused to discuss any facts surrounding his conviction, believing any statements he made could be used at ...

Alabama Highway Labor Kills Three Prisoners, Three More Injured

In a sudden surge of mayhem, three Alabama prisoners were killed in separate incidents and three more were injured. Prisoner highway labor was temporarily suspended. On April 11, 2003, Dairron Clark, 33, was struck and killed by a minivan on Interstate 10 in Mobile, Alabama. Clark, serving a life sentence, was on a work-release detail.


Two weeks later, on April 24, death struck again when Jeffery Allan Hunt, 40, was struck by a 2002 Kia. The tiny car slammed into a concrete barrier along Interstate 65 near the Montgomery city limits, and then spun out of control before striking Hunt and three other prisoners who were injured and taken to a Montgomery hospital. Hunt, serving seven years, was collecting debris along the highway with his fellow prisoners. The injured prisoners included Eddie Aaron, 54, serving 15 years; Nigel Hamilton, 37, serving 20 years; and Ron Woolen, 30, serving 20 years. These prisoners were from the Stanton Correctional Facility.


According to Alabama Department of Corrections spokesman Brian Corbett, an unidentified third prisoner was killed in Bullock County when he fell from a sanitation truck.


While the labor suspension lasted only a week, it reportedly affected about 1,000 prisoners who work ...

County Liable for Sheriff's Failure to Remove Invalid Warrant From Computer

The Eleventh Circuit Court of Appeals held that Georgia Sheriffs are a county policymaker regarding their duties in the maintenence and recall of criminal warrants thus making the county liable in a § 1983 action for the Sheriff's failure to remove an invalid warrant from his computer database which resulted in a false arrest.


In 1985, Brian Grech was arrested for speeding and DUI in Clayton County, Georgia. He posted bond and returned home to Kentucky. His bond was revoked and a bench warrant issued. Upon learning of the missed court date he returned to Georgia, pleaded guilty and was sentenced to a fine and probation. Grech was never informed of the warrant. In 1998, he was stopped for a traffic violation in Kentucky and police found the 1985 warrant still active. He spent 9 hours in jail before bonding out.


Grech filed suit in federal court against Clayton County, alleging that his civil rights were violated by his arrest on the invalid warrant that Clayton County had failed to recall. Among numerous state tort claims, including intentional infliction of emotional distress, false arrest, and false imprisonment, he claimed that his false arrest was also a violation of the Fourth ...

Supreme Court Upholds Federal Tolling Statute; $80,000 Verdict Reinstated

Reversing the Supreme Court of
South Carolina, the United States Supreme Court, in a unanimous decision, held that 28 U.S.C. § 1367(d) is constitutional. The decision reinstates a judgment against a South Carolina county jail in a wrongful death claim.


On October 14, 1994, Carl H. Jinks was ...

Wisconsin Prisoners' Riot Charges Expunged From Records

The Wisconsin Court of Appeals has affirmed a circuit court's order overturning and expunging seven prisoners' disciplinary infractions for participating in a riot, barring future disciplinary action premised upon the riot, but allowing proceedings for future administrative confinement for involvement in the riot. PLN previously reported on the November 30, 1999, riot at the Whiteville Correctional Facility in Tennessee, which is owned and operated by Corrections Corporation of America. See PLN June 2000. The riot involved 15 persons being taken hostage; it also occurred while the Secretary of the Wisconsin Department of Corrections (WDOC) was visiting the prison.


The prisoners were found guilty by the hearing officer of various disciplinary infractions for participating in the riot. They were then transferred to the Supermax prison in Boscobel, Wisconsin. Premised in part on the disciplinary hearing findings, the Administrative Confinement Review Committee (ACRC) ordered the seven prisoners placed on administrative confinement. Whiteville's warden dismissed the prisoners' appeals. Simultaneously, the prisoners were exhausting WDOC administrative remedies challenging their disciplinary and confinement decisions. After denial of all remedies, the prisoners attempted challenging the disciplinary hearing in a Tennessee State Court, which that court advised it had no jurisdiction over the prisoners. The ...

$124,000 Awarded in New York Prison Bus Crash

On November 7, 2002, at a bench trial, the New York Court of Claims, Rochester, awarded Evin Lashbrook $124,000. In November 1996, Lashbrook was driving a truck when he was struck from behind by a New York State Department of Correctional Services bus. The impact was so severe it ...

U.S. Parole Law Amendment Ruled Ex Post Facto as Applied

by John E. Dannenberg


The Third Circuit U.S. Court of Appeals ruled that a 1987 change to the U.S. Sentencing Reform Act (SRA) (18 U.S.C. § 4206(c)) that allowed for parole eligibility to be extended beyond the original statutory guideline range was ex post facto if applied to convictions predating the change.


James Lyons committed his federal crimes in 1986, for which he was sentenced to 40 years. In 1996, after serving ten years, Lyons had his initial parole hearing. The U.S. Parole Commission determined that he would normally be eligible for parole after serving 100-148 months, i.e., no later than August 1998. However, the Commission noted that 18 U.S.C. § 4206(c) now permitted them to set release dates outside the guideline range for "good cause." Evaluating Lyons' case, they continued his incarceration until a mandatory release date in 2009 - more than ten years beyond the maximum term in his original guideline range. After serving 151 months, Lyons filed a pro se habeas petition under 28 U.S.C. § 2241, asserting, inter alia, that the departure from his guideline range violated the prohibition against ex post facto laws.


The test for an ...

Qualified Immunity Standards Tightened in Prison Murder Suit

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals brought its law of the Circuit into compliance with recent U.S. Supreme Court case law to add the additional test of "knowing unlawfulness" in Eighth Amendment prisoner claims where qualified immunity is raised as a defense by prison officials. The Ninth Circuit held that Saucier v. Katz, 533 US 91 (2001) [PLN June, 2002, p.19] undermined earlier Circuit law (Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992)) which had held that just a finding of deliberate indifference (or of a triable issue of fact as to it) would be sufficient to defeat a defense motion to dismiss based on qualified immunity.


Jeffrey Ford, an effeminate homosexual prisoner in the Psychiatric Segregation Unit at the California Medical Facility (CMF) state prison at Vacaville, was murdered in his cell by his cellmate James Diesso. Ford's estate brought a 42 U.S.C. § 1983 action against prison officials and guards alleging cruel and unusual punishment in violation of the Eighth Amendment for having double-celled Ford, thereby knowingly putting his life in danger.


In U.S. District Court (E.D. Cal.), CMF defendants had moved unsuccessfully for ...

No Constitutional Right to Privacy for Naked Woman Arrestee

In a 2-to-1 decision, the U.S. Court of Appeals for the Eighth Circuit reversed a U.S. District Court's grant of relief on three federal privacy claims but upheld judgment under state law for an Iowa arrestee who was strapped naked to a restraining board for over 3 ...

Administrative Exhaustion Required in Pre-PLRA BOP Phone Suit

The U.S. Sixth Circuit Court of Appeals has ruled that the administrative remedies exhaustion requirement of the Prison Litigation Reform Act (PLRA) must be met even where a court approved settlement reached prior to the PLRA's enactment does not so require. The case involves the telephone policies of the Federal Bureau of Prisons (BOP), including telephone access and rates and billing of prisoners and their families. The consolidated cases, Washington v. Reno, US DC D KY, Civil Action Nos. 93-217 and 93-290, were settled on November 3, 1995, prior to enactment of the PLRA. Prison Legal News has previously reported on this case [PLN, Sept. `96].


Michael Henry Smith, a BOP prisoner, sued BOP for violating the Washington v. Reno Settlement Agreement. Smith raised six objections to BOP's policy including the monthly time limits, the interruption of the phone call with prerecorded messages, the inability to make collect calls to courts and government agencies, and an unrepaired billing flaw in the telephone system. Following the grievance procedure outlined and approved in the settlement agreement, Smith filed a single grievance with his warden, then sued BOP under 28 U.S.C. §1331 and the terms of the agreement ...

News in Brief

Alabama: On August 22, 2003, state supreme court chief justice Roy Moore was suspended from the court for his refusal to obey a federal court judge's order that he remove a two ton monument of the ten commandments from the rotunda of the state supreme court's building. The monument, found to violate the establishment clause of the federal constitution, was later put in a non public area of the court. Moore had installed the monument in the middle of the night in 2001 without telling his fellow justices. On November 13, 2003, Moore was removed from office by the Court of the Judiciary. Public support he gained from his violation of the law and constitution have made him one of the most popular figures in Alabama.


Alaska: On October 12, 2003, Assistant U.S. Attorney Dan Cooper was arrested and charged by Anchorage police with domestic violence for hitting his wife Cynthia during an argument. Cynthia Cooper is also an attorney and until 2002 was Alaska's chief prosecutor.


California: On June 24, 2003, James Hamlet, 53, warden of the Correctional Training Facility in Soledad was charged with misdemeanor domestic abuse and assault with a deadly weapon for ...

Evidentiary Hearing Required to Determine Communion Service Frequency

The Supreme Court of Mississippi has ordered an evidentiary hearing to determine the frequency prisoners at the Mississippi State Penitentiary at Parchman are allowed to receive Communion. Prisoner Donnie Russell, acting pro se, filed a petition in State Circuit Court alleging his religious freedom rights were violated in three ways: (1) Parchman's policy prohibiting prisoner-led religious services; (2) he had a right to acquire unleavened bread for Communion Services; (3) policy dictating the frequency of Communion is not followed.


The circuit court held Russell failed to state a claim upon which relief could be granted. The Supreme Court affirmed the first two grounds, accepting the assertion that the previous policy of allowing prisoners to preach resulted in chaos and security problems. Additionally, Russell was only complaining about how the services were conducted, while being permitted to regularly attend religious services. Second, "Russell's preferences as to how Communion services are conducted (unleavened bread vs. leavened bread vs. crackers, etc.) do not rise to the level of constitutional significance."


The Supreme Court did, however, order an evidentiary hearing to determine if Parchman officials are complying with Mississippi Department of Corrections policy that requires "providing sacramental opportunities to Christian inmates at ...

 

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