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Prisoner Education Guide

Prison Legal News: April, 2004

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Volume 15, Number 4

In this issue:

  1. Jails for Jesus (p 1)
  2. City Immune in California Drunk Tank Beating Suit Because Prisoner Was Criminal, Not Civil Detainee (p 5)
  3. Kansas Gift Subscription Ban Rejected by State Court But Upheld By Federal Court (p 6)
  4. From the Editor (p 8)
  5. Alabama Restores Voting Rights to Some Ex-Prisoners (p 9)
  6. Another Death in a Wisconsin Prison (p 10)
  7. PLRA Fee Payments Cease Upon Release from Prison (p 11)
  8. Thirty-Two Years of Resistance: Free the Angola Three! (p 12)
  9. Thirty Years in Segregation May State Claim (p 14)
  10. First Circuit Holds ADA Title II Abrogated State Sovereign Immunity (p 15)
  11. Prison Nation Wins Human Rights Award (p 15)
  12. BOP, FBI Investigations in Texas, Oregon, Arizona, and California Federal Prisons (p 16)
  13. Sixth Circuit: Claims Against Parole Procedures Cognizable Under § 1983 (p 17)
  14. Disarray in Colorado: Prisoners Hurt by Host of Problems (p 18)
  15. $475,000 Settlement for Wrongly Convicted Indiana Ex-Con (p 20)
  16. Eighteen Indicted for Drug Smuggling and Weapons Possession Inside Puerto Rican Prisons (p 20)
  17. Brooklyn MDC Guard Pleads Guilty to Raping Prisoner (p 21)
  18. New York Prisoner Awarded $435,000 in Tire Accident (p 22)
  19. The Soft Cage: Surveillance in America, From Slave Passes to the War on Terror (p 22)
  20. Asset Forfeiture Defense Manual (p 23)
  21. California Parole Violators' Due Process Rights Upheld in Settlement (p 24)
  22. Former Warden and Two Jailers Sentenced for Philadelphia Jail Beating (p 25)
  23. Mississippi Death Row Conditions Unconstitutional; Sweeping Reforms Ordered (p 26)
  24. Constitutional Amendment Effort Launched to Bar Florida's Prison Privatization (p 28)
  25. Canadian Prisoner Dies After Drinking Drug-Laced Vomit, Others Charged (p 28)
  26. Permanent Injunction Requires Full HCV Retreatment for Florida Prisoner (p 29)
  27. Disabled Missouri Prisoner Awarded Backpay after Passing GED Test (p 30)
  28. Brief Statement of Operative Facts Satisfies Texas Pleading Requirement (p 30)
  29. Texas Prisoners Have Right to Judicial Review of Administrative Finding (p 31)
  30. Jail Rape Results in Reduced Sentence (p 31)
  31. Court Questions Federal Assault Conviction on Private Prison Guard (p 32)
  32. A Culture of Prosecutorial Misconduct (p 32)
  33. California Presentencing Credits Upheld For Jail Time in Another County (p 33)
  34. Blind Prisoner Must Exhaust Administrative Remedies (p 33)
  35. Impeding Grievance Exhaustion May Violate Access to Courts (p 34)
  36. § 1983 Disciplinary Challenge Available to Parolee Because Habeas Would Be Moot (p 35)
  37. Mentally Incapacitated Oregon Pretrial Detainees Denied Due Process (p 36)
  38. Virginia Drug Treatment Program Still Violates Establishment Clause (p 37)
  39. $108,352 Attorney Fee Award Approved in California Prisoner ADA/RA Suit (p 38)
  40. Washington DOC/King County Settles Negligent Supervision Case for $3.1 Million (p 38)
  41. Fighting for Fair Phone Rates (p 39)
  42. Supplemental Parole Violation Warrant Filed After Sentence Expiration Illegal (p 39)
  43. California Initial Cell Assignments By Race Upheld, U.S. Supreme Court Grants Review (p 40)
  44. Wisconsin Pro Se Co-Plaintiffs Must Maintain Separate § 1983 Actions (p 41)
  45. County May Be Liable for Private Prison's Customs and Policies (p 41)
  46. News in Brief (p 42)
  47. Prior To Reversal And Reconviction, California Prison Credits, Not Jail Credits, Apply (p 43)
  48. Prison Mailbox Rule Applies to Civil Rights Complaint (p 44)

Jails for Jesus

Pastor Don Raymond isn't trained in corrections and is not employed by the government, but he runs a new 140-person wing of the Ellsworth, Kansas, medium-security prison that draws prisoners from throughout the state system.


In the phylum of prison staff, Raymond defies classification. He is not a tight-lipped warden, vindictive guard, or burnt-out social worker. In an industry that thrives on invisibility and resents the media, Raymond drives 140 miles, past newly seeded wheat fields and the rhythmically bowing heads of oil-well pumps, to pick me up from the airport, where he offers prayers of thanksgiving for my visit and "for the ministries of writing He has blessed Samantha with." In a building that hums with hostility, Raymond is attentive, unguarded, gentle. Prison staff are not permitted to share personal information with prisoners, address them by their first names, or socialize in any way; if a prisoner wants to speak privately with a counselor, he has to fill out a Form-9. But these restrictions do not apply to Raymond, who often puts in 14-hour days working the cellblocks of the state's prisons, recruiting men to transfer to his wing. In prisoners' marked bodies, averted eyes, and bristling ...

City Immune in California Drunk Tank Beating Suit Because Prisoner Was Criminal, Not Civil Detainee

The California Supreme Court ruled that California Govt. Code § 844.6(a)(2) [governmental immunity for injury to prisoner] prevented a city jail detainee who had been beaten by another drunk tank prisoner from maintaining a government tort claim against the city for damages, because a jail prisoner is a ...

Kansas Gift Subscription Ban Rejected by State Court But Upheld By Federal Court

Kansas Gift Subscription Ban Rejected by State Court
But Upheld By Federal Court

by John E. Dannenberg


In two independent but inconsistent rulings, Kansas Department of Corrections (KDOC) policy IMPP 11-101 (banning gift subscriptions of magazines and newspapers to prisoners) was determined to be a regulation that both did impinge on KDOC prisoners' Constitutional rights _ and also did not impinge on those rights.


In the Kansas state district court, KDOC prisoner Jerry Rice and others filed a pro per complaint seeking relief from KDOC's regulation prohibiting outsiders from ordering a gift periodical subscription (PLN) for them, claiming this violated their First Amendment free speech rights. KDOC insisted that any subscription permitted under their behavior-privilege system must be ordered on an approved KDOC Special Purchase Order from funds (not to exceed $30 per month) in the prisoner's account. PLN and the prisoner plaintiffs in both state and federal cases are represented by attorney Bruce Plenk of Lawrence, Kansas, challenging the gift ban, the $30 dollar monthly limit on book purchases, and due process.


It then denied the requests for an injunction based upon its evaluation of the First Amendment complaints under Turner v. Safley, 482 U.S. 78 ...

From the Editor

With our recent expansion to 48 pages we will be bringing readers more information than ever before and we also hope it will be more timely than it has been in the past. Readers that send us newspaper clippings and similar information help us stay on top of what are otherwise local stories that rarely make it into the national media. We also welcome story ideas and suggestions from readers.


Increasing PLN's circulation is an ongoing objective. The more issues we print and mail, the lower our per issue costs for postage and printing. Let your friends and family know about PLN and encourage them to subscribe. No other publication has the quality and quantity on all aspects of the criminal justice system that PLN does. We are also seeking to expand our advertiser base as that allows us to increase our editorial content. Do you know of any businesses, publications or services aimed at prisoners and their supporters? If so, send us their name and contact information and PLN will contact them about advertising in PLN. Likewise, feel free to suggest they contact us.


Since getting out of prison in December I have done a fair amount of ...

Alabama Restores Voting Rights to Some Ex-Prisoners

On June 24, 2003, Republican Alabama governor Bob Riley announced he was vetoing the felons' voting bill passed by the state legislature. The bill would have made it easier for certain felons to have their voting rights reinstated. Alabama law imposes a lifetime ban on voting for any person convicted of felony unless granted a pardon by the state parole board.


Several black lawmakers felt double crossed by the veto. There was an apparent agreement between lawmakers to allow the Republican Voter ID bill to become law in return for the felons' voting law to be enacted. "If there was an agreement among legislators to this effect, I was not part of it," said Riley.


In response to the veto, the reverend Jesse Jackson staged protests at the Staten Correctional Center. Jackson suggested Riley's veto was political. "When the governor wins by 3,000 votes, then locks away 250,000 voters he thinks might not vote for him _that's suspect," Jackson said. As of April, 2003, 62 % of Alabama prisoners were black. Black Alabama voters tend to vote heavily Democratic.


Black lawmakers vowed to reintroduce the felons' voting bill and wasted no time in fulfilling that vow. On ...

Another Death in a Wisconsin Prison

"Unremarkable." That's what prison nurse Jolinda Waterman called Donnie Powe's condition when she relegated him to an observation cell. Guards perfunctorily recorded his declining health right up until he died, face down on the floor of his 6 by 8 foot tomb in Wisconsin Secure Program Facility (WSPF) aka Supermax.


For twenty-one hours guards literally watched Powe die slowly inside his Supermax prison cell. Powe had complained of weakness and vomiting, telling a prison nurse he thought he had the flu. The nurse put Powe on a clear liquid diet and told him to contact medical later if he didn't feel better. This is where the record of his slow, agonizing death begins.


March 15, 2003, 12:45pm A prison sergeant calls nurse Waterman to Powe's cell. Powe is "only mumbly when spoken to," says the sergeant. Powe's mattress is on the floor, he is "unable to, move (his)" legs and his speech is "slow and softly spoken."


Unable to walk and barely able to lift his head, Powe is placed in a "restraint chair" and taken to the infirmary. Waterman diagnoses Powe's symptoms as "unremarkable." She leaves him on a liquid diet and ...

PLRA Fee Payments Cease Upon Release from Prison

PLRA Fee Payments Cease
Upon Release from Prison


The Fourth Circuit Court of Appeals held a prisoner who was granted in forma pauperis (IFP) status is not required to continue filing fee payments upon release from prison. Prisoner Keith William DeBlasio filed a 42 U.S.C. § 1983 action challenging Virginia's refusal to pay for prisoners' certified or registered legal mail. DeBlasio was granted leave to proceed IFP, and he had more than satisfied the Court's ordered initial portion of the filing fee when he sent $12 to the Clerk of the Court.


Before his next payment was due, DeBlasio filed a notice of address change advising the Court he was released from prison. The district court ordered he pay the remaining $138 within 30 days. DeBlasio moved to continue his IFP status alleging he had insufficient assets to pay the balance. The Court failed to address the new IFP motion and dismissed the case for failing to pay the remaining balance within the allotted time.


DeBlasio appealed and sought IFP status in the Fourth Circuit, which the Court granted for appellate purposes only. The Court found that indigent persons are entitled to seek IFP status under 28 ...

Thirty-Two Years of Resistance: Free the Angola Three!

by Shana Griffin and Brice White


Thirty two years in solitary confinement would be enough to drive many of us to despair. Yet as of April 17, 2004, Herman Wallace and Albert Woodfox of the Angola 3 have each spent the last thirty-two years inside a six by nine foot cell, for nearly 24 hours a day, in various segregation units of the Louisiana State Penitentiary at Angola.


Thirty-two years with only three to seven hours a week outside their cells to shower or exercise in enclosed pens. Thirty-two years with rare contact visits and limited access to medical care. Thirty-two years denied due process in disciplinary and classification hearings that would have allowed them to join general population.


Wallace and Woodfox are innocent menpolitical prisoners convicted of the murder of prison guard Brent Miller in 1972 in retaliation for their organizing on behalf of all prisoners and for founding the only officially recognized chapter of the Black Panther Party in a prison.


They are freedom fighters today as they were in 1972. Wallace and Woodfox have worked for over three decades for human rights and dignity in a place designed to strip away both. According to Wilbert Rideau and ...

Thirty Years in Segregation May State Claim

The United States Court of Appeals for the Fifth Circuit upheld the denial of prison authorities' motion to dismiss based on qualified immunity because no proper determination was made as to whether prisoners' over 30 years of confinement in extended lockdown created a liberty interest.


Plaintiffs, Louisiana state prisoners Robert Wilkerson, Albert Woodfox and Herman Wallace were placed in extended lockdown in 1972 by Angola prison authorities. Wallace and Woodfox were still in extended lockdown when this case came to bar. Wilkerson was kept in extended lockdown until his conviction was reversed in 2001. [See accompanying article on the Angola 3].


While in extended lockdown, the prisoners were brought before the Lockdown Review Board every 90 days. Plaintiffs alleged these reviews were a "sham" and that during the hearings Board members discussed such issues as hunting and fishing instead of discussing the prisoners' cases.


Plaintiffs brought a 42 U.S.C. § 1983 action in state district court (later removed to federal district by the defendants) alleging that their three decades in extended lockdown violated the Eighth Amendment's prohibition against cruel and unusual punishment and that the "sham" reviews violated their Fourteenth Amendment right to procedural due process. Prison authorities ...

First Circuit Holds ADA Title II Abrogated State Sovereign Immunity

The First Circuit court of appeals has held that Title II of the Americans with Disability Act (ADA), as applied in this case, abrogates state sovereign immunity. There is now a 6-3 split in the circuits on this issue.


Matthew Kiman, a former New Hampshire state prisoner, suffers from amyotrophic lateral sclerosis (ALS/Lou Gehrig's disease). ALS has made walking very difficult yet Kiman was denied a cane, forced to stand in long lines for food, made to climb two flights of stairs to third tier housing, and denied a chair so he could sit in the shower. Kiman was also denied a toilet suitable for his needs and forced to rely on other prisoners for assistance. He was handcuffed in back, despite great pain. Guards even denied prescribed medication (which the Court characterized beyond deliberate indifference to "malicious"). These actions may have accelerated Kiman's ALS deterioration.


Kiman filed a § 1983 complaint seeking damages under 42 U.S.C. § 1231-1265, known as Title II of the ADA. The federal district court dismissed the action under the recent United States Supreme Court ruling that struck down Title I of the ADA. See: Board of Trustees of the University of ...

Prison Nation Wins Human Rights Award

On December 16, 2003, Paul Wright and Tara Herivel were awarded the 2003 Myers Outstanding Book Award certificate for Prison Nation: The Warehousing of America's Poor (Routledge, 2003). The award is from the Gustavus Myers Center for the Study of Bigotry and Human Rights in North America.


Based in Boston at Simmons College, the Center is unique in that it focuses on the human rights of Americans and seeks to promote wider awareness and deeper understanding of human rights issues in the United States.


Prison Nation won the award for its "insightful documentation and analysis of the prison industry&" Wright and Herivel were also honored for their commitment to furthering positive social change.


Additional information about the award and the Gustavus Myers Center is available at www.myerscenter.org. Prison Nation is available for purchase from PLN for $19.95, see ordering information on pages 46-47.

BOP, FBI Investigations in Texas, Oregon, Arizona, and California Federal Prisons

BOP, FBI Investigations in Texas, Oregon, Arizona,
and California Federal Prisons

by Michael Rigby


Murder, riots, drug overdoses, and allegations of official corruption have prompted the Bureau of Prisons (BOP) and the FBI to launch investigations at federal prisons in Texas, Oregon, Arizona, and California.


In Texas, the FBI is investigating possible heroin overdoses that resulted in the death of one prisoner at the La Tuna federal prison. Daniel Mendoza, 23, and his cell partner were discovered "unresponsive" in their cell on July 7, 2003. Mendoza died at the hospital from cardiopulminary arrest. His cell partner was admitted to the hospital in critical but stable condition.


At the Federal Correctional Institution (FCI) Sheridan in Oregon, a riot erupted on the recreation yard on September 25, 2003. About 40 prisoners fought with homemade weapons in the riot; one prisoner, Ronald Acosta, 47, was stabbed but expected to survive. The riot was apparently the worst prisoner uprising since September 1993 when prisoners torched a building and shattered 212 windows. Overcrowding, which may have played a part in the 1993 riot, may be at issue in the most recent outbreak of violence as well. The BOP, which is running at about 40 percent ...

Sixth Circuit: Claims Against Parole Procedures Cognizable Under § 1983

Sixth Circuit: Claims Against Parole Procedures Cognizable Under § 1983;
U.S. Supreme Court Grants Review


Bringing itself into line with its sister circuits, the en banc U.S. Sixth Circuit Court of Appeals held that Ohio prisoners may challenge parole procedures under 42 U.S.C. § 1983 provided that adjudication of the claim does not implicate the fact or duration of confinement.


Ohio prisoner William Dwight Dotson was convicted in 1981 of aggravated murder and sentenced to fifteen years to life. At the time of his conviction, Ohio's parole rules required that after his initial parole hearing, Dotson, if not paroled, was to be reviewed in no more than five years for suitability for parole. Dotson was reviewed after fifteen years and denied parole. The Parole Board continued him for ten years with a hearing after five years, as required by the rule.


Before his five-year review, however, Ohio changed its parole rules. The new rules made Dotson ineligible for parole until after he had served thirty-two years. Dotson attended his five-year review. At that time, the Board held that the new rules applied retroactively to him and ruled that he would not be parole eligible until 2007, although ...

Disarray in Colorado: Prisoners Hurt by Host of Problems

Society is dynamic, in a state of con-stant flux where change is the only constant, but recent changes in Colorado are turning up the pressure in Colorado's prison system. Prisoner pay has been nearly eliminated while hygiene items are not provided. Prisoner phone rates are now in the hands of prison officials who can raise a quick buck at will by raising phone rates. The maximum possible parole setback has been extended to five years to further reduce the scant number of prisoners paroled. And overwhelming growth in the face of massive state fiscal troubles and a slashed prison budget has resulted in some prisoner programs eliminated, staff laid off and positions left unfilled, while another unneeded supermax begins construction.


Prisoner Pay


The state fiscal crisis has reached the point that not only has the Colorado Department of Corrections (CDOC) eliminated dispensing prisoner necessities (except for one roll of toilet paper per week in some areas), the General Assembly has ordered the CDOC to cut prisoner pay to save a paltry $1.4 million (or 0.298%) of an otherwise $469,771,508 budget. The previous multi-tiered pay system of $.28 per day for unassigned prisoners and $0.63 ...

$475,000 Settlement for Wrongly Convicted Indiana Ex-Con

$475,000 Settlement for Wrongly
Convicted Indiana Ex-Con


On March 5, 2003, Jerry Watkins settled his wrongful conviction lawsuit against the Hancock County sheriff's department inIndianapolis and the Indianapolis police department. Watkins was convicted of murdering his 11 year old sister in law and was sentenced to 60 years ...

Eighteen Indicted for Drug Smuggling and Weapons Possession Inside Puerto Rican Prisons

Eighteen Indicted for Drug Smuggling and
Weapons Possession Inside Puerto Rican Prisons

by Lonnie Burton


On May 8, 2003, a 21-page indictment was handed down by a federal grand jury sitting in San Juan, Puerto Rico charging 18 people mostly prisoners for allegedly trafficking heroin and cocaine throughout Puerto Rico's prison system. The indictment also charges many of the defendants with firearms and weapons violations for smuggling and possessing a cache of high powered weapons inside the prisons. The indictment finally charges other defendants with money laundering and with fraudulent use of a communication system by using cell phones to facilitate the operation.


Although the actual size of the drug smuggling ring is unknown, some media outlets, including USA Today, have reported that the ring smuggled over 16,000 pounds of the two drugs between prisons over a six-year span. The indictment itself, however, does not support this number. According to the charging documents, the drug and weapons ring was run by the NETA prison gang, who primarily operated inside the Ponce Main, Zarzal, and Bayamon Annex 1072 prisons in Puerto Rico. The group conspired with outside contacts in the free community and "purchased, smuggled, and then distributed heroin ...

Brooklyn MDC Guard Pleads Guilty to Raping Prisoner

by Matthew T. Clarke


On October 17, 2002, Randy Denjen, a guard lieutenant at the Brooklyn, New York Metropolitan Detention Center (MDC) pleaded guilty to charges of causing a prisoner to engage in sexual contact by threatening and placing her in fear, in violation of 18 U.S.C. § 2242(1), and making a false statement to the FBI regarding the rape, in violation of 18 U.S.C. § 1001. The district judge enhanced the sentence four levels for use of force even though the guard did not use a weapon or threaten to harm the victim.


The victim was a 24 year-old mother of two from London, England, who was in isolation, on suicide watch, while awaiting sentencing following her plea of guilty to importation of ecstasy into the U.S. Her cell was underground and isolated from the rest of the prison. She was 5'7" tall and weighed 108 pounds.


Dejen was 6'5" tall and weighed 285 pounds on November 24, 2001, the day of the attacks. At around midnight, Denjen began talking to the victim about her sexuality through the cell door. He entered her cell and requested sex, which she refused. Ignoring repeated polite ...

New York Prisoner Awarded $435,000 in Tire Accident

New York Prisoner Awarded $435,000
in Tire Accident


On June 10, 2003, the Court of Claims in Rochester, New York, awarded $435,000 for pain and suffering to a New York prisoner who was injured when a forklift tire exploded in his face.


Prisoner Clay Rumley was attempting to ...

The Soft Cage: Surveillance in America, From Slave Passes to the War on Terror

The Soft Cage: Surveillance in America,
From Slave Passes to the War on Terror

by Christian Parenti, (Basic Books, 2003) 273 pp., $24.95 cloth


Review by Scott Christianson


Big Brother is watching. He may not be able to find Osama Bin Laden or identify the Anthrax Attacker, but he sure as hell keeps close track of you and me.


In The Soft Cage, scholar-journalist Christian Parenti surveys the sinister development of surveillance in the US, showing how webs of often-invisible tracking systems have captured members of a "free" society as tightly and completely as Orwell and Huxley warned, and turned our world into more of a totalitarian cage than any of us ever realized.


Those who weren't paranoid before they read this book, may feel a lot more frightened the next time they pick up a cell phone, turn on a computer, shop at a store, use an E-Z pass, or watch cable TV. For some, the prospect of facing a website "cookie" may prove pretty terrifying after you've seen what Parenti has to say.


Parenti holds a Ph.D. in sociology from the London School of Economics and is a visiting fellow at CUNY Graduate Center ...

Asset Forfeiture Defense Manual

by Brenda Grantland, Judy Osburn and Susan Raffanti;


Liberty Press, San Francisco, CA, Nov. 2001; 500 pp. (soft-back)


Vol. 1: Substantive Law and Administrative Procedure;


Review by John E. Dannenberg


You may have thought your troubles were over when you were prosecuted for a state or federal crime, until your friendly U.S. Government - who in its infinite wisdom has discovered that crime does pay - now comes after your personal assets as a forfeiture for your criminal activities or those of a family member. That's the bad news. The good news is that there is now available an engaging, comprehensive self-help manual on how to defend yourself against such federal forfeiture.


Forfeiture defense attorney Brenda Grantland and victim/survivor Judy Osburn are key activists in F.E.A.R. (Forfeiture Endangers American Rights Foundation) and authors of this narrowly focused but spirited (dedicated to George Orwell!) treatise on how to get the government's grub hooks off of your property.


Because the federal laws are so complex by themselves, this planned two volume set cannot also cover state forfeiture defense, although undoubtedly some of the constitutional principles invoked would carryover. Despite these complexities, this scholarly text is written in ...

California Parole Violators' Due Process Rights Upheld in Settlement

California Parole Violators' Due Process Rights
Upheld in Settlement


In a November 17, 2003 Stipulated Or-der for Permanent Injunctive Relief (PI), defendant California prison officials settled a nine-year old federal class action suit brought by parolees whose due process rights in parole violation proceedings had been consistently unconstitutionally abused. The PI, which commences on July 1, 2004 and becomes fully effective by July 1, 2005, will provide for probable cause hearings within 13 business days after placement of a parole hold, final revocation hearings within 35 calendar days of the hold, and appointed counsel at all hearings with subpoena power for witnesses and evidence. Most significantly, for minor parole violations not affecting public safety, alternative remedial sanctions other than prison will be offered beginning in January, 2004, with a stated goal of reducing returns-to-custody by up 10% in 2004 and 30% by 2006.


In 1994, prisoner Jerry Valdivia began what became a class action suit on behalf of parolees at large and those back in custody, alleging that California's unitary parole revocation procedure (i.e., having no pre-revocation probable cause step), coupled with re-incarceration of up to six months with no hearing at all, violated Constitutional rights announced in ...

Former Warden and Two Jailers Sentenced for Philadelphia Jail Beating

Former Warden and Two Jailers Sentenced
for Philadelphia Jail Beating


A former warden and two former guards were sentenced in federal court for their roles in connection with the severe beating of a federal prisoner who was being held at a Philadelphia jail.


Donti Hunter, the former Philadelphia jail prisoner, was being held in the jail after pleading guilty to leading a violent Mantua crack-cocaine gang and agreeing to testify against his gang and the counselor who had helped him escape in 1996. On March 11, 1999, Reginald Steptoe, 40, a former guard, took offense at Hunter's grabbing from a sergeant's hand some marijuana which had been found in Hunter's cell, running to an adjoining cell, and flushing the evidence.


Steptoe beat Hunter bloody using a pair of handcuffs as brass knuckles. Cornell Tyler, 40, another former guard, assisted in the beatings. The beatings continued even after Hunter was subdued and handcuffed. Hunter suffered wounds to the face and scalp requiring nineteen-stitches to close and was hospitalized for several days as a result of the beating.


Glen Guadalupe, formerly the deputy warden of Curran-Fromhold Correctional Facility, instituted a cover up by ordering a guard lieutenant to lie ...

Mississippi Death Row Conditions Unconstitutional; Sweeping Reforms Ordered

Mississippi Death Row Conditions Unconstitutional;
Sweeping Reforms Ordered

by Bob Williams


Hailed as the broadest ruling ever is-sued by a federal judge in a death row conditions of confinement case, and a precedent setting breakthrough in prisoners' rights, conditions at Mississippi State Penitentiary Unit 32-C, Parchman Death Row, were found to constitute cruel and unusual punishment warranting sweeping changes to be implemented immediately. These changes affect 66 male prisoners on death row.


Willie Russell, facing execution since 1987, and five other death row prisoners were named plaintiffs in a 42 U.S.C. § 1983 action filed in July of 2002. The ACLU National Prison Project's (NPP) attention was focused on Unit 32-C when several death row prisoners staged a hunger strike protesting living conditions. Margaret Winter, associate director of the NPP, led the fight against the Mississippi Department of Corrections (MDOC).


The prisoners claimed they were deliberately subjected to "profound isolation, lack of exercise, intolerable stench and filth, malfunctioning plumbing, constant exposure to human excrement, dangerously high temperatures and humidity, uncontrolled mosquitoes and insect infestations, deprivation of basic mental health care, and constant exposure to severely psychotic inmates in adjoining cells." These conditions were alleged to cause death row ...

Constitutional Amendment Effort Launched to Bar Florida's Prison Privatization

Constitutional Amendment Effort Launched
to Bar Florida's Prison Privatization

by David M. Reutter


The Florida Police Benevolence As-sociation (PBA) has launched a petition drive to enact an amendment to Florida's constitution that would bar privatization of prisons, jails, and offender supervision. The PBA represents over 30,000 law enforcement, corrections, and probation officers.


The PBA launched the drive following Governor Jeb Bush's recent proposal for the state legislature to provide an emergency $65 million to build new prison beds. That proposal included a provision to set aside $75,000 to allow the Correctional Privatization Commission, Florida's private prison oversight group, to take bids to build an 1,800 bed prison in Northwest Florida.


"The PBA went ballistic" when it learned of the provision, said Senator Victor Crist, R-Temple Terrace, one of the bill's co-sponsors. While campaigning for re-election in July 2002, Bush pledged to the PBA that he would not seek more private prisons. That pledge may have been subject to fiscal lobbying. In 2002, private prison companies Wackenhut, Corrections Corporation of America, and Cornell Companies, Inc., donated $274,000 to Florida candidates and political parties.


Prison privatization has its critics in the Florida legislature ...

Canadian Prisoner Dies After Drinking Drug-Laced Vomit, Others Charged

Canadian Prisoner Dies After Drinking
Drug-Laced Vomit, Others Charged

by Michael Rigby


Prisoners at the Pine Grove Correctional Centre in Prince Albert, Saskatchewan (Canada) have been drinking each other's drug-laced vomit in order to get high. One woman has died as a result of this gut-wrenching practice, and three others have been charged with drug trafficking.


Sonia Faith Keepness, 37, was found dead in her cell at the Pine Grove women's prison on February, 19, 2002. She had just begun a 19 month sentence for possession of criminal proceeds and drug trafficking. A Coroner's inquest determined that Keepness likely died from ingesting a lethal combination of methadone and librium.


Keepness apparently drank two hits of methadone-laced vomit and took 4 pills of librium, a tranquilizing drug, the day she died. Fellow prisoners Candace Dawn Ahenakew and Tanya Mae Cappo (who was Keepness's aunt) admitted that after receiving their daily dose of methadone, the two returned to their cells and regurgitated their stomach contents into a container for Keepness.


Methadone is a potent narcotic painkiller sometimes prescribed to drug addicts because it alleviates the unpleasant symptoms associated with the withdrawal from heroin, morphine and other opiates. At ...

Permanent Injunction Requires Full HCV Retreatment for Florida Prisoner

Permanent Injunction Requires Full HCV
Retreatment for Florida Prisoner

by John E. Dannenberg


The U.S. District Court (S.D. Fla.) is-sued a permanent injunction on July 24, 2003 ordering James Crosby, the Secretary of the Florida Department of Corrections (FLADOC) and its contract health care provider Wexford Health Sources ...

Disabled Missouri Prisoner Awarded Backpay after Passing GED Test

The U.S. District Court for the Eastern District of Missouri found that a disabled prisoner was entitled to backpay because he was not reassigned to a premium pay job after he successfully passed the GED test.


James Arlt Jr, a Missouri prisoner, sued the Missouri Department of Corrections (MDOC) and six prison officials under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, and § 504 of the Rehabilitation Act (RA) of 1973, 29 U.S.C. § 794(a), for failure to provide him with accommodations to take the GED test. Arlt is blind in one eye and has learning disabilities.


In 1999, MDOC implemented a policy requiring prisoners holding jobs with premium pay (approximately $70 per month) to have a high school diploma or GED. Arlt had neither. MDOC has another policy which requires prisoners to score at least 250 on a pre-GED test before being allowed to take the GED test. On several attempts, Arlt failed to score at least 250 on the pre-GED test. He lost his premium pay job and was given a job that paid only $7.50 per month.


Thereafter, Arlt filed an Informal Resolution Request (IRR)asking prison ...

Brief Statement of Operative Facts Satisfies Texas Pleading Requirement

by Matthew T. Clarke


A Texas state court of appeals has held that a brief statement of operative facts of prior lawsuits satisfies the requirements of Texas Civil Practice and Remedies Code (TCPRC) §§ 14.004 & 14.005.


Theron Belton, a Texas state prisoner, sued the Texas Department of Criminal Justice (TDCJ) and the Conagra Poultry Company (Conagra) for injuries he received when he ate a piece of chicken in the prison dining hall. The chicken piece allegedly had a metal clamp on it which Belton swallowed.


The Texas Attorney General's Office (AG) agreed to defend the suit and filed a motion to dismiss because Belton had neither filed an affidavit setting forth the operative facts of all previous litigation nor proof of exhaustion of administrative remedies as required by the TCPRC. Before the trial court ruled on the motion to dismiss, Belton filed a declaration of exhaustion of administrative remedies and an amended declaration of previous filings. The district court granted the AG's motion, dismissing both TDCJ and Conagra from the suit and ordering the suit dismissed with prejudice. Belton appealed.


On appeal, Belton argued that the trial court should not have dismissed his claims because his amended ...

Texas Prisoners Have Right to Judicial Review of Administrative Finding

Texas Prisoners Have Right to Judicial
Review of Administrative Finding


A Texas state court of appeals has held that Texas state prisoners have a right to a judicial review of an administrative finding of destruction of state property in a prison disciplinary action.


Thomas Retzlaff, a Texas state prisoner, filed a petition requesting review of an administrative judgment of guilt for destruction of state property in a prison disciplinary action. Retzlaff was issued a work boot with a defect in its stitching. He notified the boot room attendant of the defect, but she refused to replace the boot and threatened him with disciplinary action should the boot be damaged. One week later, the boot fell apart. When Retzlaff returned the boot, a disciplinary case for destruction of state property was initiated against him. He was convicted of the minor disciplinary offense of destruction of state property and punished with ten days of commissary restriction. He then filed the aforementioned petition.


The state moved for dismissal of the petition as frivolous. The district court dismissed the petition without holding a hearing. Retzlaff appealed.


The court of appeals held that a prisoner "charged in a prison disciplinary proceeding with destruction of property ...

Jail Rape Results in Reduced Sentence

An Alabama federal district court has reduced a female prisoner's sentence by a three-level downward departure based on her rape by a jail guard.


Deborah Rodriguez pled guilty to possession with intent to distribute 382 kilograms of cocaine hydrochloride. After being raped by a jail guard while awaiting sentencing, Rodriguez was granted a two-level downward departure pursuant to U.S.S.G. § 5K2.0. She then requested an additional two-level downward departure and was granted one additional level for a total of three based on the testimony of an expert witness, Dr. Guy Renfro, that Rodriguez continues to suffer from posttraumatic stress disorder from the rape plus her previously diagnosed mild depression had worsened to major depression.


The government objected based on U.S.S.G. § 5H1.3 excluding mental and emotional conditions in exceptional sentencing. But the Court noted that § 5K2.0 is an exception to § 5H1.3 and is otherwise not applicable because Rodriguez's mental and emotional condition was not the basis for the Court's departure; the rape was the motivator. Testimony of her mental and emotional condition only helped fashion a sentence after determining a departure was warranted.


Neither the original nor the modified ...

Court Questions Federal Assault Conviction on Private Prison Guard

Court Questions Federal Assault Conviction
on Private Prison Guard


In a case applicable to all federal pris-oners incarcerated in private and state prisons the Fifth Circuit Court of Appeals held a federal prisoner who assaults a private person employed at a privately run prison may be convicted of assault of a federal officer with a dangerous weapon under 18 U.S.C. § 1141. Jesus Jacquez-Beltram appealed his conviction under § 1141 for acts committed while incarcerated at the Eden Correctional Center (ECC) in Texas, a prison operated by Corrections Corporation of American (CCA).


As the guard was a private employee of CCA rather than a federal employee, to be a covered victim under § 1141 he must have been assaulted either while assisting a federal officer or employee in the performance of his official duties in assisting federal officers. The Court found Beltram was read the indictment and voluntarily pled guilty. The indictment alleged the guard was assisting an officer or employee in the capacity of a guard for the Bureau of Prisons (BOP) when Beltram hit him over the head with a two-way radio. The Court declined to add to the statutory elements by requiring that a federal agent be physically ...

A Culture of Prosecutorial Misconduct

Review by Peter Schmidt


The Center for Public Integrity (CPI), a non-profit, investigative journalism organization based in Washington, D.C., has recently published a major study on prosecutorial misconduct in America. The lengthy, empirical study, entitled Harmful Error: Investigating America's Local Prosecutors, which is available online, contains some revealing findings and conclusions.


CPI's team of investigators and reporters, headed by Steve Weinberg, analyzed 11,452 state cases, dating back to 1970, in which charges of prosecutorial misconduct had been reviewed by appellate court judges.


We found it interesting that no cases involving Federal prosecutors were examined - a fact which is, perhaps, an unwitting admission that there is virtually no meaningful oversight of misconduct by Federal prosecutors. The one body that has been granted authority to investigate Federal prosecutorial misconduct - the Department of Justice's own internal and infamous Office of Professional Responsibility (OPR) - is renowned for its pathetic record of impotency and inaction - no matter how scurrilous the charges may be. See, e.g., Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice, by investigative reporter David Burnham, Scribner - New York, 1996.]


In the vast majority of the 11,452 ...

California Presentencing Credits Upheld For Jail Time in Another County

California Presentencing Credits Upheld
For Jail Time in Another County

by John E. Dannenberg


The California Supreme Court ruled that while a prisoner was on pre-trial bail from one county, but had been arrested for an unrelated offense in another county - for which the first county then placed a hold on him, he was entitled to custody credits accruing during his incarceration in the second county against his eventual conviction in the first county - when his second county's conviction was subsequently overturned on appeal.


Vincent Marquez was convicted in Monterey County of first degree burglary with prior serious felony conviction enhancements and was eventually sentenced to 25 years. See: People v. Marquez, 16 Cal.App.4th 115 (1993). His present habeas corpus petition to the California Supreme Court dealt solely with certain pretrial jail custody credits against his prison term.


Pending his trial in Monterey County, he had been granted bail. While on bail, he was arrested and convicted in Santa Cruz County for an unrelated offense. Upon learning of his arrest in Santa Cruz County, Monterey placed a hold on him. Following completion of his Santa Cruz trial, Marquez was then tried, convicted, and sentenced by the Monterey ...

Blind Prisoner Must Exhaust Administrative Remedies

Blind Prisoner Must Exhaust
Administrative Remedies


The Fifth Circuit Court of Appeals held that a blind prisoner is not excused from the administrative exhaustion requirement of the PLRA, and that a state court finding the prison systems grievance procedure violates Louisiana's State Constitution does not impact federal law. Prisoner Ricky Ferrington filed a civil rights action alleging faulty medical treatment at the Claiborne Parish Detention Center resulted in his near blindness. The district court dismissed the action on grounds Ferrington failed to exhaust administrative remedies.


Ferrington argued he was not required to exhaust administrative remedies because the Louisiana Supreme Court found La. Rev. Stat. §§ 15:1171-1179, the state's prisoner grievance procedure, unconstitutionally divested the state district courts of their original jurisdiction in tort actions by prohibiting such claims. See: Pope v. State, 792 So. 2d 713 (La. 2001) [PLN, September 2002]. The Fifth Circuit found that one of Louisiana's appellate courts held prisoners no longer need exhaust prison administrative remedies before filing a suit for tort recovery in state court. However, Ferrington was proceeding in federal, not state court. Since the grievance system remains in force, Ferrington must exhaust these remedies, and his failure to do so ...

Impeding Grievance Exhaustion May Violate Access to Courts

A U.S. District Court for the Eastern District of Wisconsin held that a prisoner's access to court was impeded because jail officials interfered with his ability to exhaust his administrative remedies with respect to several non-frivolous claims, which were dismissed for failure to exhaust. On these claims, the ...

§ 1983 Disciplinary Challenge Available to Parolee Because Habeas Would Be Moot

§ 1983 Disciplinary Challenge Available To Parolee Because Habeas Would Be Moot

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals ruled that a prisoner suing under 42 U.S.C. § 1983 for damages resulting from unconstitutional procedures in an earlier disciplinary hearing would not be required instead to bring an action in habeas corpus, because since the prisoner had already been paroled, mootness would render habeas corpus unavailable.


Narvis Nonnette was convicted in a disciplinary hearing of stabbing another prisoner in a fight, and received 360 days loss of good-time credit plus 100 days in the hole. After exhausting administrative remedies claiming both release date miscalculation and denial of due process rights in the disciplinary proceedings, he filed a civil rights complaint requesting injunctive relief and damages. The U.S. District Court (C.D. Calif.) dismissed the suit for failure to state a claim because, since the claims challenged the validity of his (then continuing) confinement, they must be brought under habeas corpus instead, per Heck v. Humphrey, 512 U.S. 477 (1994). Nonnette appealed.


Before his appeal was decided, Nonnette was routinely (albeit belatedly) paroled. This changed the legal landscape, implicating a newer Supreme Court case ...

Mentally Incapacitated Oregon Pretrial Detainees Denied Due Process

Mentally Incapacitated Oregon Pretrial Detainees
Denied Due Process


The Ninth Circuit Court of Appeals held that under Oregon law, state mental hospitals have a duty to accept mentally incapacitated criminal defendants for evaluation and treatment, once certified as mentally incapacitated by a circuit court. The court also held that the hospital's delay in admitting incapacitated defendants violated their substantive due process rights and the alleged violations were sufficient to support injunctive relief.


"Oregon, in recognition of the constitutional rights of mentally incapacitated persons charged with a crime, commendably has enacted statutory procedures for the identification and restorative treatment of such persons so that their guilt or innocence can be determined in a trial."


"Under Oregon law, state circuit (trial) courts may, before or during trial, find a criminal defendant to be incapacitated as a result of a mental disease or defect such that the defendant is unable to assist and cooperate with defense counsel or participate in the defense. Such a finding triggers a process designed to evaluate, treat and restore the defendant's mental health so that judicial proceedings may resume. If `[a] court determines that [a criminal] defendant lacks fitness to proceed [to trial], the proceeding against ...

Virginia Drug Treatment Program Still Violates Establishment Clause

Virginia Drug Treatment Program
Still Violates Establishment Clause


A federal district court in Virginia held that the Therapeutic Community Program (TCP) of the Virginia Department of Corrections violated the Establishment Clause of the First Amendment. The court also held, however, that prison officials were entitled to qualified immunity due to their good faith efforts to cure the problems.


Virginia prisoners are required to participate in the TCP, a religious based 12 Step Program, or they will lose good conduct credits and the ability to earn good conduct credits.


Prisoners previously brought suit alleging that the TCP violated the Establishment Clause and the federal court found that the TCP was unconstitutional as it was implemented. See: Ross v. Keelings, 2 F.Supp.2d 810 (E.D.Va. 1998).


Following the decision in Ross, prison officials implemented a new TCP in an attempt to comply with the opinion. "The Serenity Prayer was removed from the Program materials and secular alternatives were substituted in many of the materials." Yet, the program continued "to teach spirituality and still ha[d] certain elements that contain religious references." Additionally, religion and the value of religious beliefs are frequently discussed and participants are required to watch a ...

$108,352 Attorney Fee Award Approved in California Prisoner ADA/RA Suit

$108,352 Attorney Fee Award Approved
in California Prisoner ADA/RA Suit

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals approved attorney fees/costs totaling $108,352 for litigation efforts in gaining injunctive relief under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA ...

Washington DOC/King County Settles Negligent Supervision Case for $3.1 Million

Washington DOC/King County Settles Negligent
Supervision Case for $3.1 Million


On March 9, 2003, the Washington Department of Corrections (DOC) and King County agreed to pay $3.1 million to the family of a woman who was brutally raped and murdered by a man on community supervision. The ...

Fighting for Fair Phone Rates

Fighting For Fair Phone Rates

by Deborah M. Golden

In 2000, a group of prisoners, loved ones of prisoners, and attorneys filed a lawsuit in the U.S. District Court for the District of Columbia challenging the high cost of collect calls from private correctional facilities. The case is Wright, v. Corrections Corporation of America, USDC DC case no. 1:00CV00293 (GK), in front of Judge Kessler. This group is represented by attorneys at Seliger & Elkin, in Chicago; D.C. Prisoners' Legal Services Project, in Washington, DC; and the Center for Constitutional Rights, in New York. The lawsuit claims, among other things, that the high costs of the phone calls violate anti-trust laws, the Eighth Amendment, and the Federal Communications Act.

We asked the court to make the case a class action, but the judge did not rule on that motion. Instead, in August 2001, the judge ordered us to go to the Federal Communications Commission ("FCC") because the case involves issues under its jurisdiction. However, the judge did not dismiss the case, but nothing will happen until FCC rules.

In front of the FCC, the process is being divided into two parts. The first part is a Petition for Rulemaking, in ...

Supplemental Parole Violation Warrant Filed After Sentence Expiration Illegal

Supplemental Parole Violation Warrant Filed
After Sentence Expiration Illegal


A federal district court for the District of Columbia has held that a parolee cannot be violated for activity alleged in a supplemental warrant filed after expiration of the original sentence. Larry Owens was convicted of violating District of Columbia (DC) laws and sentenced to prison. Subsequently, he was released on parole and supervised by the DC Board of Parole, who on February 24, 2000, filed a warrant alleging Owens violated his parole. Pursuant to the National Capital Revitalization Act of 1997, Owens' file was transferred to the U.S. Parole Commission (The Commission) on July 18, 2000. Seven days later, Owens pled to a Bail Reform Act (BRA) violation in DC Superior Court. Despite the pending parole violation detainer, Owens was released from custody.


On November 30, 2000, Owens was arrested on the parole warrant. Five months later, the Commission issued a supplemental warrant adding a new charged based on the BRA conviction. The Commission then issued a probable cause finding letter, which stated it made no findings on the original warrant, but found cause on the supplement.


Owens filed a habeas corpus petition in the district court. Two of ...

California Initial Cell Assignments By Race Upheld, U.S. Supreme Court Grants Review

California Initial Cell Assignments By Race Upheld,
U.S. Supreme Court Grants Review

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals ruled that the policy of the California Department of Corrections (CDC) of using race as a factor in initially housing cellmates did not offend the US Constitution's Equal Protection Clause. The United States supreme court has granted review and agreed to decide whether racial discrimination suits in prison are subject to a reasonable relationship test or not.


Garrison Johnson, an African-American California state prisoner serving time for murder, robbery and assault with a deadly weapon, sued CDC administrators under 42 U.S.C. § 1983 to enjoin their policy of initially housing prisoners of the same racial designation together during their first 60 days of incarceration at a new facility. Johnson complained that this apparently arbitrary action was racially circumscribed and thus constitutionally suspect.


CDC countered that while it was true that during the period before initial classification at any new facility, every prisoner was thus automatically segregated, CDC had a legitimate penological interest in doing so - particularly among known violent prisoners such as Johnson. Indeed, CDC asserted that it owed such prisoners a duty ...

Wisconsin Pro Se Co-Plaintiffs Must Maintain Separate § 1983 Actions

Wisconsin Pro Se Co-Plaintiffs Must
Maintain Separate § 1983 Actions


Federal district court Chief Judge Bar-bara B. Crabb, of the Northern District of Wisconsin, has decided that all pro se prisoner plaintiffs filing in this district must file and maintain separate § 1983 actions rather than filing as co-plaintiffs.


Nathaniel Lindell was a prisoner in the state Supermax facility when he filed multiple federal lawsuits on behalf of himself and other co-plaintiffs, including prisoners Loren Pate, Herbert Genz, and Edward Singleton. Lindell repeatedly wrote the court submitting additional attachments and amendments. One complaint grew in excess of 800 pages. Meanwhile, some of Lindell's co-plaintiffs moved to have themselves removed from one of the suits at one time and re-instated at other times. Lindell even wrote the court directing them to ignore the co-plaintiff requests. Some co-plaintiff material was served by the co-plaintiffs on other co-plaintiffs and some was not. Between January and June, 2002, so many letters, pleadings, and attachments were filed that the court found them unmanageable.


In dismissing the action without prejudice to individual refilings, Judge Crabb found the following problems with prisoner co-plaintiff litigation, especially from such a controlled environment as Supermax: (1) great difficulty in maintaining contact ...

County May Be Liable for Private Prison's Customs and Policies

County May Be Liable For Private Prison's Customs And Policies

by Bob Williams


The New Mexico federal district court has held that a county could potentially be liable under 42 U.S.C. § 1983 for the customs and policies of a private prison corporation to whom it had contracted the operation of its jail. Exhaustion of administrative remedies was also mandated.


Fernando Herrera, a temporary prisoner in the Santa Fe County Detention Center operated by Cornell Corrections, Inc., a private prison corporation, was threatened, shot three times in the head, side, and testicle with a pellet shotgun, then beaten and kicked by guards with one guard jumping on his head. Herrera had warned a county transport guard this would happen.


Herrera filed a § 1983 complaint against the County of Santa Fe, Cornell Corrections Inc., and several guards, raising Eighth Amendment use of excessive force and state law negligence claims. The district court denied the defendant's motion to dismiss but raised sua sponte the issue of exhausting administrative remedies.


In denying the defendant's motion to dismiss, the Court noted that only the warning to a transport guard could conceivably involve the county. The remaining claims were against Cornell ...

News in Brief

Bolivia: Protesting bad conditions and long sentences, two prisoners at the Palmasola prison in the capital of La Paz were crucified on February 11, 2004. Prisoners Fredy Acosta and Walter Ortiz were nailed to crosses in the prison. The protest was filmed by local television crews where it was aired nationally. Prison officials would not comment on why they allowed the protest to occur, much less be televised. Most of the nation's prisoners have not been convicted of any crime and they frequently languish in prison for years as their cases wind through the courts. This is the latest in a series of hunger strikes and riots and other protests seeking better prison conditions and more efficient processing by the courts.


California: On February 15, 2004, Linda Brock, 43, a guard at the Corcoran State Prison was arrested and charged with soliciting murder, having sex with a prisoner, conspiracy to commit a crime and offering to distribute a controlled substance. Police found a pound of marijuana and seven ounces of heroin in her home during a search. Police allege Brock conspired with the prisoner, with whom she was having sex, to hire someone outside prison to kill her husband ...

Prior To Reversal And Reconviction, California Prison Credits, Not Jail Credits, Apply

Prior To Reversal And Reconviction, California
Prison Credits, Not Jail Credits, Apply


The California Supreme Court held that when a prisoner's conviction is overturned on appeal, and a new conviction is obtained upon retrial, the time that was served in prison prior to the reversal counts against the new conviction as prison time - not pre-trial detainee jail time - for purposes of the award of conduct credits.


Pamela Martinez was originally tried and convicted of petty theft with priors and sentenced as a "three-strike" recidivist to 25 years-to-life. On direct appeal, her conviction was overturned on the basis of ineffective assistance of trial counsel. At her second trial, she pleaded guilty, but the judge exercised discretion to strike one of her priors, resentencing her only as a second strike defendant. Under the second strike statutory provisions (CA Penal Code § 667(c)(5)), prison conduct credits are earned at the rate of 20%. However, as a pretrial detainee, Martinez would have been awarded county jail credits of 33%. The question here was whether during the three years she spent in state prison between her initial conviction and its reversal on appeal, were her incarceration credits to be counted as "pre-trial" credits ...

Prison Mailbox Rule Applies to Civil Rights Complaint

Prison Mailbox Rule Applies To Civil Rights Complaint

by Jon Michael Withrow


The U.S. Court of Appeals for the 8th circuit reversed and remanded a district court's dismissal of a prisoner's § 1983 complaint as untimely filed, holding that the prison mailbox rule applied to a prisoner's civil rights complaint. Ronald Sulik, a Missouri state prisoner, filed a federal complaint against Taney County, Missouri, and police officers regarding an assault on Sulik while he was in the Taney County Jail.


The U.S. District Court for the Western District of Missouri dismissed Sulik's complaint as untimely filed even though he placed the complaint into the prison mailbox one day before the filing deadline. Also at issue was Sulik's late filing of his notice of appeal without an affidavit showing the date of mailing.


The first issue for the court of appeals to resolve was the late filed notice of appeal. The postmark indicated that notice of appeal was timely handed to prison officials for mailing to the court, however, Sulik had failed to include the required affidavit. (See FED.R.APP.P. 4(c)(1)) Finding, no requirement that the affidavit be filed with the ...

 

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