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Prisoner Education Guide

Prison Legal News: May, 2004

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Volume 15, Number 5

In this issue:

  1. Prisons Nationwide Fail to Treat HCV Epidemic (p 1)
  2. BOP Doctor Indicted, Pleads Guilty to Sexual Assault (p 6)
  3. From the Editor (p 6)
  4. $50,000 HCV Settlement and New Treatment Protocol Approved in Colorado (p 7)
  5. Colorado Slammed by West Nile Virus But Ignores Prisoners (p 8)
  6. Denial of Grievance Forms Excuses Failure to Exhaust (p 9)
  7. Florida Work Release Prisoners Ripped Off by Private Transport Company (p 10)
  8. Excessive Heat Still Plagues Baltimore Women Detainees (p 11)
  9. Another Troubled North Carolina Jail (p 12)
  10. Third-Party Beneficiaries Can Enforce Terms of Settlement (p 12)
  11. Virginia Legislature Awards Wrongfully Convicted Man $1.5 Million (p 13)
  12. $13,500 Damages Paid to Two Illegally Detained Washington DOC Prisoners (p 13)
  13. Mandamus Available to Review Oregon Disciplinary Orders (p 14)
  14. PLRA Physical Injury Rule Applied to Non-Prison Case (p 14)
  15. Missed HIV Medication Did Not Create a Serious Medical Need (p 15)
  16. Washington Medical Claim Reinstated (p 16)
  17. California Rules Violation for "Repeated Pattern" Must Involve Same Offense (p 16)
  18. Private Settlement Agreement Prohibits Award of Attorney Fees and Costs (p 17)
  19. County Public Defender Liable for Wrongful Conviction (p 18)
  20. Physical Injury Rule Doesn't Bar Strip Search Suit (p 18)
  21. Local Rule Cannot Justify Summary Judgment When Factual Dispute Exists (p 19)
  22. Beating Judgment for Jail Affirmed on Appeal; Costs Issue Remanded (p 20)
  23. PHS Liable for Denying Insulin to Diabetic New Jersey Jail Prisoner (p 20)
  24. New Jersey Prisoners May Confront Accusers in Disciplinary Hearings (p 21)
  25. New Jersey Supreme Court Upholds $1.6 Million Harassment Verdict (p 22)
  26. Two Level Review Required for Publication Rejection, but Qualified Immunity Granted (p 22)
  27. BOP Rule Denying Early Release Eligibility Violates APA (p 23)
  28. Certification for Interlocutory Appeal Order Discussed in California Prison Labor Suit (p 24)
  29. Discipline Without Notice Violates Due Process; BOP Administrative Exhaustion May Be Excused (p 24)
  30. No Ex Post Facto Violation in Forcing Washington Prisoner to Take Stress and Anger Classes (p 25)
  31. New Trial Ordered in Washington Strip Cell Conditions Suit (p 26)
  32. Pretrial Detainee Has Limited Right to Litigate Civil Matters (p 26)
  33. Applicability of FTCA to BOP Causes Circuit Split (p 27)
  34. $15 Million Award for Wrongful Conviction Upheld (p 28)
  35. Absence of AEDPA in Texas Law Library May Toll Limitations (p 28)
  36. NYPD Commissioner Charged With Stealing $112,733.98 from Jail Prisoner Fund (p 29)
  37. Dismissal Sanction for Prisoner's Refusal to Be Deposed Without Court Order Reversed (p 30)
  38. Kansas Grievance Procedures Inapplicable in Negligence Action (p 30)
  39. Illinois County Necessary Party in Suit Against Elected Official (p 31)
  40. Confinement for Willful Failure to Pay LFOs Upheld (p 31)
  41. No Crueler Tyrannies: Accusation, False Witnesses, and Other Tyrannies of Our Times (p 32)
  42. Texas Monitors Prisoners for-Signs of Al-Qaeda Recruitment (p 32)
  43. Virginia Prison Vendors Lose Contracts to Out-of-State Supplier (p 33)
  44. BOP Medical Detainees Not Subject to PLRA (p 33)
  45. Jailhouse Snitch Enlisted in War on Terrorism Behind Bars (p 34)
  46. Innocent Ohio Man Paid $750,000 for 10 Years Imprisonment (p 35)
  47. Tennessee Officials Pay $450,000 to Settle Lawsuit in Detainee's Murder by Guards (p 35)
  48. Texas Probation Officer Charged With Having Juvenile Probationer's Baby (p 36)
  49. $252,000 Awarded in Kansas Prisoner's Suicide (p 36)
  50. Ohio Native American Prisoner Granted Injunction to Grow Long Hair (p 37)
  51. Dismissal of Prisoner's Divorce Petition Is Abuse of Discretion (p 37)
  52. DOJ Investigation: Conditions in Arkansas Prisons Unconstitutional (p 38)
  53. Washington Prisoners Get Credit for Time Spent at Liberty (p 39)
  54. Tennessee Supreme Court Holds No Procedural Protection Needed for $5 Fine (p 40)
  55. California's New Governor Must Reconsider Former Governor's Parole Reversal (p 40)
  56. Washington Failure to Disclose Prison-Phone-Rate Suit Dismissed, State Supreme Court Grants Review (p 41)
  57. Indiana Appeals Court Allows Prisoner to Sue to Receive Pornography (p 41)
  58. News in Brief (p 42)
  59. Minnesota Pay-To-Stay Programs Don't Deliver (p 44)

Prisons Nationwide Fail to Treat HCV Epidemic

Prisons Nationwide Fail To Treat HCV Epidemic

by John E. Dannenberg


The JeopardyTM answer is: "The national average treatment rate for HCV-infected prisoners." The winning question is: "What is approximately 1%?"


With HCV [Hepatitis-C] infection rates in state prisons nationwide estimated at between 16 and 41%, state prisoners account for almost one-third of the 4.5 million total people in the United States infected with this often fatal disease. But because the annual treatment cost per prisoner runs $25-$35,000, and states are loathe to pump money into prison health care, HCV is transformed from a dirty little secret inside the walls into a national epidemic, as 1.3 million contagious and untreated prisoners are unceremoniously dumped back into the communities each year. Worse yet, because HCV testing is not mandatory, many carry the virus outside unknowingly only to infect others from blood contamination during injuries, body piercing, tattooing, sharing needles and unprotected sex.


HCV, a blood borne virus that often runs its fatal course in 10-20 years, can infect a person without showing outward symptoms for much of this period. It is frequently only detected during routine blood tests when liver enzymes appear abnormal. Yet throughout the entire ...

BOP Doctor Indicted, Pleads Guilty to Sexual Assault

BOP Doctor Indicted, Pleads Guilty To Sexual Assault

by Bob Williams


On May 14, 2003, Dr. Carlos Baez, 41, a staff obstetrician-gynecologist in the Federal Bureau of Prisons (BOP), was indicted on three counts of sexual abuse of a ward for having sexual intercourse with three prisoners between November 2002 and January 2003 at the Federal Medical Center (FMC) in Carswell, Texas. FMC Carswell is the only federal medical center for women in America.


Facing up to one year in prison on each count and loss of his license to practice medicine, Baez pled guilty to two counts of misdemeanor sexual abuse of a ward on July 2, 2003. He was sentenced on October 21, 2003 to 14 months in prison. While Baez acknowledged having sex with two female prisoners, consensual sex is not a defense in the doctor-patient context. Sexual acts between a BOP physician and his patients not only violate federal law they violate BOP policy and ethical guidelines. But Baez was not new to these problems.


On October 19, 2000, while in private practice in Arizona, Baez performed a Caesarean section. Thirty minutes later, while on his way home, he was informed by the hospital of complications ...

From the Editor

This issue marks the 14th anniversary of Prison Legal News. With this issue we will have published 169 issues. At this point, PLN is the longest, continuously publishing independent publication whose content is mostly written and produced by prisoners and ex-prisoners in American history. When PLN was started in 1990 no one expected it to last this long.


The past 14 years have seen the serious decline of the American penal press. In 1990 dozens of newsletters and magazines were focused on prisons, prisoners, prisoner rights and jail issues. California alone had almost a dozen. As the years went by and the prison populations grew, the prison press dwindled. Many prison systems also had in house publications that, while censored, in some cases produced excellent stories and, more importantly, allowed prisoners to gain and hone their writing skills which could be used in other writing endeavors. By now, few states still have any type of publications at all.


It is not for a lack of news. At this point PLN has just expanded to 48 pages, up from ten when we started in 1990. We have sufficient stories and material to fill our existing pages and then some. We are ...

$50,000 HCV Settlement and New Treatment Protocol Approved in Colorado

$50,000 HCV Settlement and New Treatment Protocol
Approved in Colorado

by Bob Williams


The federal district court in Colorado has approved a settlement awarding $50,000 and treatment for hepatitis-C (HCV) infection to six named plaintiffs. The Colorado Department of Corrections (CDOC) has instituted a new treatment protocol as ...

Colorado Slammed by West Nile Virus But Ignores Prisoners

Loren Gasiorowski, 41, awoke one morning with a big mosquito bite on his forearm and one on his shoulder. Within days he couldn't leave his cell. After being sick for two weeks he couldn't take it any more. He decided to run the gauntlet required for medical access. Once there, he was immediately transferred to the Colorado Department of Corrections (CDOC) main infirmary where he spent eight days on intravenous fluids and oxygen. He didn't fully recover for several weeks. "I've never been this sick, ever," he said. Despite asking many questions to every medical staff available, no clear diagnosis was made; it could have been the flu or maybe pneumonia. No one would discuss West Nile Virus (WNV) and all requests for testing were refused.


With 54 people dead, 2,833 confirmed infected, and an estimated 35,000 untested infections, WNV hit Colorado in 2003 worse than any other state. In contrast, there were only 14 infections and zero deaths in 2002. State agencies jumped to action including the CDOC which instructed staff on necessary precautions and supplied DEET mosquito repellant to all staff working outdoors. For the approximately 19,000 prisoners: Nothing.


WNV is ...

Denial of Grievance Forms Excuses Failure to Exhaust

Denial of Grievance Forms Excuses
Failure to Exhaust


The U.S. Third Circuit Court of Appeals reversed a Pennsylvania federal district court's dismissal of a state prisoner's civil rights suit for failure to state a claim.


Pennsylvania prisoner Mark Mitchell was incarcerated at the State Correctional Institution at Graterford (SCI-Graterford) when he was disciplined for possession of drugs and currency found taped to the bottom of his locker. Mitchell consistently claimed that the contraband was not his and that he had been framed by guard Ronald Wilson in retaliation for several grievances Mitchell filed against Wilson. Mitchell repeatedly requested, but was denied, fingerprint analysis of the evidence. Two days after the contraband was found, with only five minutes to prepare any defense, Mitchell was brought before a disciplinary board, convicted of several rules violations, and sentenced to ninety days in disciplinary custody. Mitchell appealed his conviction as far as possible, but was denied on each appeal.


While in disciplinary custody, Mitchell was placed in a cell normally used by mentally ill prisoners. Human waste was smeared on the walls, and the cell was "infested with flies." Mitchell was kept awake at night by kicking and banging on the ...

Florida Work Release Prisoners Ripped Off by Private Transport Company

Florida Work Release Prisoners Ripped Off
by Private Transport Company

by David M. Reutter


In response to a new law, effective Oc-tober 1, 2003, that prohibited state prisoners from driving state vehicles, the Florida Department of Corrections (FDOC) hurriedly entered into a no bid contract with Sunshine Transportation to transport its work release prisoners to and from their employment.


FDOC's work release programs allow prisoners to work up to twelve months in the community before they are released. While in the program, prisoners live in minimum security dormitories in the community. In turn, they contribute 45% of their income to pay the FDOC for their housing costs and ten percent goes to a personal savings account to be given to them upon their release. The transportation costs charged by Sunshine Transportation were automatically deducted from whatever wages were left.


Sunshine Transportation refused to take the contract unless it was guaranteed a minimum number of prisoner passengers. The company was chosen because it was the only company that agreed to provide van service statewide. To facilitate the contract, FDOC officials sent letters to all local work release programs "encouraging" them to sign the agreement with Sunshine Transportation. Local officials then ...

Excessive Heat Still Plagues Baltimore Women Detainees

Despite a 2002 federal district court Consent Order finding conditions at the Women's Detention Center of the Baltimore City Detention Center (WDC) unconstitutional due to excessive heat and despite an injunction issued to immediately remedy the problem, WDC women continue to suffer through the excruciating heat and humidity of the Baltimore summers.


Parts of the state-run detention center date to 1803 yet the administration areas and the men's detention center have air conditioning; the WDC, which dates to the 1960s, does not. In the summer of 2002, public defenders began arguing for bail reduction based on the jail conditions constituting cruel and unusual punishment. Temperatures inside had climbed to 117 degrees F. An investigation had already been launched in 1999 after Michael Bochenek, chief counsel to Human Rights Watch, contacted the Justice Department.


The 2002 Consent Order, issued in response to a motion for a preliminary injunction, required a comprehensive protocol be developed and implemented by September 5, 2002. The protocol required intake screening within 12 hours of arrival at WDC to identify female detainees who are susceptible to heat-related injury should there be a heat emergency. These detainees are then given an H-1 rating.


A heat emergency ...

Another Troubled North Carolina Jail

Prisoner suicides, mistaken releases, jailers indicted for selling drugs and dispensing sex, prisoners caught with drugsall occurred at the Cumberland County Detention Center, a $36 million North Carolina jail, in the seven months following its February 2003 opening.


On March 23, 2003, shortly after 1 a.m., Army Sgt. William Clark Wright Jr. was found hanging in his cell. Wright, 36, was one of four Fort Bragg soldiers accused of murdering his wife in the Summer of 2002. He was the third to kill himself. Although Wright was not on suicide watch, computer records showed guards had checked on him 28 minutes before he was discovered. There are no cameras in the cells.


On July 16, 2003, a prisoner was mistakenly released by nine-year jail veteran Scott Burgess. The man apparently had the same name as a prisoner slated for release. Burgess was briefly suspended. In August Burgess again mistakenly released a prisoner, this time due to a paperwork error. Burgess was fired on September 9. Both prisoners turned themselves in.


Also in July, officials learned that two jailers were allegedly providing prisoners with contraband and sex. Latoya Swartz, 25, is accused of having sex with prisoners and providing them ...

Third-Party Beneficiaries Can Enforce Terms of Settlement

The Tenth Circuit court of appeals has held that a prisoner was entitled to seek enforcement of a two-decade old settlement agreement as a third-party beneficiary and invoke the court's continuing jurisdiction. In 1981, Kenneth Floyd and nine other Colorado state prisoners filed a § 1983 complaint against the Department of Corrections (CDOC) seeking an injunction directing the CDOC to place prisoner funds in interest-bearing accounts, use the proceeds for the prisoner's benefit, account for past-due interest on individual accounts, and promulgate rules, regulations, and procedures governing canteen fund use. Between 1981 and 1984, a Stipulation and Agreement with subsequent amendments was entered into without class action certification. The Agreement would also benefit and be enforceable by all CDOC prisoners and prisoners would have individual accounts within the umbrella trust account. Not all plaintiffs agreed to relinquish their claims for interest earned on individual accounts. See: Floyd v. Ricketts, No. 81-K1745 (D.C. Colo. 1981).


In 2001, Michael Ingram (not an original plaintiff) sought enforcement of the Agreement and contempt citations against the CDOC. His petition was struck because he failed to serve the defendants, confer with opposing counsel pursuant to local rules, attach a copy of the Agreement ...

Virginia Legislature Awards Wrongfully Convicted Man $1.5 Million

The Virginia legislature has passed a bill awarding nearly $1.5 million to a man who spent 15 years in prison for a crime he did not commit.


Marvin Anderson was convicted by a Virginia court in December 1982 of abduction, sodomy, rape and robbery. He was sentenced to 210 years in prison. Another man, John Otis Lincoln, admitted under oath in 1988 that he committed the crimes for which Anderson was imprisoned, but a judge deemed the evidence unreliable.


Anderson continued to fight his conviction after he was paroled in 1997. However, Anderson's efforts to exonerate himself through retesting of the DNA evidence by more modern methods were stonewalled by the state of Virginia and law enforcement authorities who claimed the evidence had been either misplaced or destroyed.


On May 2, 2001, Virginia passed a law allowing certain prisoners and parolees access to untested DNA evidence if the evidence was relevant to their guilt or innocence. After the legislation was passed, physical evidence related to Anderson's case surfaced. Retesting exonerated Anderson; it also led to Lincoln's indictment for the crimes. Anderson was awarded a full pardon by Virginia Governor Mark Warner on August 22, 2002.


On ...

$13,500 Damages Paid to Two Illegally Detained Washington DOC Prisoners

The Washington state Division of Risk Management (DRM) paid claims totaling $13,000 to two state prisoners who were illegally arrested and incarcerated by the Washington Department of Corrections. Michael Buffington had been sentenced in King County Superior Court to two months county jail for possession of heroin. The court ...

Mandamus Available to Review Oregon Disciplinary Orders

The Oregon Court of Appeals held that prison disciplinary orders may be challenged in a mandamus action. The court also held that the trial court erred in imposing previously deferred filing fees.


For many years, Oregon prisoners could challenge certain prison disciplinary orders on judicial review in the Oregon Court of Appeals under ORS 421.195. In 1993, however, the Oregon legislature repealed ORS 421.195 and enacted ORS 421.194(1) which provides: "Disciplinary orders of the Department of Corrections . . . are not subject to judicial review by any court of this state." ORS 421.194(2) provides an exception to this prohibition, stating: "This section does not affect any right that an inmate may have to prosecute a writ of habeas corpus."


Under Oregon law, to state a cognizable habeas corpus claim, a petitioner must establish that there is a need for immediate judicial scrutiny. In the disciplinary context this limits the availability of habeas corpus to challenging placement in disciplinary segregation - which may not exceed 180 days and results in the habeas case being dismissed as moot when the segregation sanction has been served - and the forfeiture of good/earned time credits, only when the restoration of those ...

PLRA Physical Injury Rule Applied to Non-Prison Case

PLRA Physical Injury Rule Applied
to Non-Prison Case


The Eleventh Circuit Court of Appeals has held that the Prison Litigation Reform Act (PLRA) applies to lawsuits that claim injuries suffered during custodial episodes, even if such custody occurred outside prison walls. Louis Napier was arrested for trespass by two Jacksonville, Florida Sheriff Deputies, who felt he was actually Jon Napier, who is Louis's brother. The charge was later nolle prossed. Louis Napier then filed a 42 U.S.C. § 1983 action alleging he suffered embarrassment and mental anguish from the mistaken arrest and imprisonment. The suit was filed while Napier was confined on an unrelated charge. The district court dismissed the action as frivolous, and Napier appealed.


The Eleventh Circuit Court stated a dismissal under 42 U.S.C. § 1997e(e) "applies to lawsuits involving (1) federal civil actions (2) brought by a prisoner (3) for mental and emotional injury (4) suffered while in custody." The new legal issue in this case is whether the fourth predicate is inclusive of injury suffered during the arrest of an individual on a charge unrelated to the present confinement.


In turning to decide if Napier was "in custody" at the time of ...

Missed HIV Medication Did Not Create a Serious Medical Need

The U.S. Court of Appeals for the Second Circuit affirmed a district court's denial of a motion for new trial by an HIV+ prisoner who complained that there was insufficient evidence to support the jury's verdict against him.


Willie Carpenter was diagnosed with the human immunodeficiency virus (HIV) when he entered the New York State Prison System in 1995. He was prescribed a three-drug regimen to treat his HIV. In April 1999, Smith filed suit in U.S. District Court under 42 U.S.C. § 1983 where he complained that while incarcerated at New York's Camp Pharsalia Correctional Facility, prison officials had acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment when they twice deprived him of his essential HIV medication: once in October 1998 for 7 days due to a delay in refilling his prescriptions, and again in January 1999 for 5 days after his medications were seized during a search of his quarters.


At trial, Smith did not introduce any evidence, either via expert testimony or otherwise, that his HIV infection or his overall health worsened as a result of the two incidents of missed medication. At the ...

Washington Medical Claim Reinstated

The U.S. Ninth Circuit Court of Ap-peals reversed part of a grant of summary judgment to Washington State Penitentiary (WSP) officials in an Eighth Amendment challenge of WSP medical policies and practices.


WSP prisoner Garrett Linderman sued WSP officials under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in violation of the Eighth Amendment. The district court granted summary judgment to WSP officials on all claims, and Linderman appealed.


The Court of Appeals decision does not recite the facts of the case. Linderman appeared, though, to raise four challenges to WSP's medical policies and practices: (1) denial of alternative medical treatment; (2) denial of pillows in higher-security areas of WSP; (3) a policy, causing delay in treatment, requiring that medical care be re-established by a prisoner when transferred from one WSP unit to another; and (4)deliberate delay by WSP in providing Linderman with blankets. Linderman also challenged the district court's causation analysis as faulty.


The appeals court affirmed summary judgment against Linderman on denial of alternative medical treatment. Linderman established no constitutional violation, only a "difference of opinion" over treatment.


The court reversed on Linderman's challenges to the no pillow ...

California Rules Violation for "Repeated Pattern" Must Involve Same Offense

California Rules Violation For "Repeated Pattern" Must Involve Same Offense


The California Court of Appeal held that the California Department of Corrections' (CDC) regulation elevating a repeat infraction of an "administrative" violation to the level of a "serious" rules violation may only be invoked if the new violation is of the identical prison rule.


Noel Scott, a lifer at Salinas Valley State Prison, was infracted for disrespect of female staff by calling her a "bitch." He was written up for an administrative level violation of CDC regulation § 3004(b), which expressly prohibits disrespect of staff. However, the write-up (CDC Form 115) elevated the infraction to a "serious" infraction (which imposed 30 days credit loss and three weeks of confinement to quarters) based upon CDC regulation § 3315(a)(3)(M). Section 3315(a)(3)(M) defines a serious rules violation to be "a repeated pattern of administrative rules violations for the same offense."


After exhausting administrative remedies, Scott filed a habeas corpus petition in the Monterey Superior Court. In denying the petition, the court noted Scott's eight prior infractions (only three of which rose to the level of "administrative" CDC 115s) and concluded that because Scott's behavior demonstrated a ...

Private Settlement Agreement Prohibits Award of Attorney Fees and Costs

Private Settlement Agreement Prohibits Award
of Attorney Fees and Costs

by David M. Reutter


In a case of great importance to lawyers litigating prisoner actions where private settlement agreements are a consideration, the Eighth Circuit Court of Appeals has reversed a $379,000 award for attorney fees and costs granted after a settlement agreement was reached in litigation brought by a class of juveniles at the South Dakota State Training School at Plankinton. PLN reported the district court's order awarding fees and costs. See: Christina A.v. Bloomberg, 167 F.Supp.2d 1094 (D.S.D. 2001). [PLN January 2003].


The defendants appealed the finding that the juveniles were a prevailing party because (1) the settlement agreement changed the relationship between the parties and (2) the court retained jurisdiction in its dismissal order to enforce the agreement. The Court found the award appropriate under Buckhannon Board & Care Home, Inc., v. West Virginia Dept. of Health and Human Resources, 121 S.Ct. 1835 (2001).


Buckhannon held the "catalyst theory" of prevailing party status is no longer appropriate for the award of attorney fees because "[I]t allows an award where there is no judicially sanctioned change in the relationship of ...

County Public Defender Liable for Wrongful Conviction

The U.S. Ninth Circuit Court of Ap-peals, sitting en banc, reinstated a former Nevada Death Row prisoner's 42 U.S.C. § 1983 suit against Clark County, Nevada, and the County's Chief Public Defender.


Roberto Miranda was convicted of a 1981 murder and sentenced to death. He spent 14 years on Nevada's Death Row before being released on appeal for ineffective assistance of counsel. He was never retried.


Miranda sued Clark County, the head of the County Public Defender's office, Morgan Harris, and Assistant Public Defender Thomas Rigsby, who represented Miranda, under 42 U.S.C. § 1983. Central to Miranda's suit were the claims that Harris had a policy of administering polygraph tests to all defendants who professed their innocence and sought trial. Those who failed the test were assigned minimal resources from the Public Defender's office and the least experienced attorneys. Miranda, who failed Harris' test, was assigned Rigsby, then only one year out of law school and who had never before tried a capital case. Rigsby's "assistance" to Miranda's defense, according to published reports, was found to be woefully inadequate.


The Nevada federal district court dismissed the suit under Federal ...

Physical Injury Rule Doesn't Bar Strip Search Suit

Vacating dismissal by the U.S. District Court, Northern District of Illinois, the U.S. Seventh Circuit Court of Appeals held that a prisoner adequately pleaded an Eighth Amendment violation in a prison strip-search and that 42 U.S.C. § 1997e(e) does not bar suit where the only injuries alleged are psychological.


Tyrone Calhoun, formerly a prisoner at Stateville Correctional Center (SCC), was strip-searched by male and female guards. Calhoun contended no emergency reason for the search existed. He alleged that during the course of the search, male and female guards laughed at him, made sexual comments about him, and deliberately ridiculed and humiliated him. Further, Calhoun claimed that then-Warden George DeTella and an assistant warden were present during the search and took no action to stop the humiliation and ridicule.


Claiming only psychological injury, Calhoun sued DeTella and several other SCC official under 42 U.S.C. § 1983 citing violations of his Federal Eighth Amendment rights and Illinois law. The district court dismissed prior to service under 28 U.S.C. § 1915A. The court held that Calhoun failed to state a claim. Further, since Calhoun alleged only psychological harm, the court held that 42 U.S.C. § 1997e ...

Local Rule Cannot Justify Summary Judgment When Factual Dispute Exists

by David M.Reutter


The Ninth Circuit Court of Appeals held the failure to file an opposing pleading, as required by local rule, in response to a motion for summary judgment is not grounds for entry of final judgment against the non-moving party when genuine disputes of material facts exist; additionally, although qualified immunity law changed, previous factual disputes in this case had not.


Andres M. Martinez alleged in his 42 U.S.C. § 1983 action that while at California's Calipatria State Prison excessive force was used against him by guards breaking up a fight in an adjacent cell. The facts are highly disputed by the parties.


Martinez states he and his cellmate placed a bed sheet over their cell opening to keep the noxious pepper spray guards were using out of their cell. When asked by guards to remove the sheet, they advised they would when the gas dissipated. Guards then fired two plastic bullets, one of which struck Martinez in the head, and a taser cartridge into the cell. When guards entered the cell, they pushed Martinez into a seated position, and despite his lack of resistance, tasered him twice in the left arm. Martinez was beat ...

Beating Judgment for Jail Affirmed on Appeal; Costs Issue Remanded

The U.S. Tenth Circuit Court of Appeals affirmed a district court grant of judgment as a matter of law to a Kansas county in an excessive use of force claim brought against county jailers after a jury ruled against the county. The court, however, remanded the district court order as to costs.


Carroll W. Lewis, a former Air Force tanker refueller at McConnell Air Force Base near Wichita, Kansas, was arrested on November 3, 1996, on a domestic violence charge. He was booked into the Sedgewick County Adult Detention Facility and placed in a holding cell. Lewis claims that, while there, he was attacked, beaten, and placed in a restraint chair by eight guards. He claimed the attack so badly injured his back that he was forced eventually to retire on disability from the Air Force.


Lewis sued Sedgewick County under 42 U.S.C. § 1983, claiming that the guards used excessive force and that Sedgewick County had a custom or policy of failing to train its officers about the use of excessive force. (For unspecified reasons, Lewis dropped the suit against the guards.) Following trial, a jury returned a verdict against the county and awarded Lewis $500,000 ...

PHS Liable for Denying Insulin to Diabetic New Jersey Jail Prisoner

The U.S. Third Circuit Court of Appeals reversed the U.S. District Court (New Jersey) on its dismissal of a pretrial detainee's state law medical malpractice claims and summary judgment for jail defendants of the detainee's claims under 42 U.S.C. § 1981 and 1983.


Daniel Natale was arrested by Gloucester Township police on November 23, 1997. Natale, an insulin-dependent diabetic, was taken to an area hospital for medical evaluation. A hospital physician gave Natale insulin and noted that he "must have insulin" while incarcerated.


During booking at the Camden County Correctional Facility (CCCF), Natale was seen by employees of Prison Health Services (PHS), a private company providing health care services at CCCF. Natale informed PHS employees that he was insulin-dependant. A PHS nurse noted this on Natale's chart, but no one investigated how much insulin Natale needed or at what frequency.


Natale received no more insulin until twenty-one hours later, on November 25, 2003. He was released from CCCF later that day. Two days later he suffered a stroke. Natale and his wife sued PHS and CCCF in state court under 42 U.S.C. § 1981 and 1983, and under New Jersey state medical malpractice ...

New Jersey Prisoners May Confront Accusers in Disciplinary Hearings

In response to a ruling by the Superior Court of New Jersey, Appellate Division, the New Jersey Department of Corrections has announced that they will afford prisoners the opportunity to question their accusers in person during disciplinary hearings, regardless of whether the accusers are other prisoners or guards.


The catalyst for the rule change came on November 11, 2001. While housed at Southern State Prison in Maurice River Township, prisoner Daymon Jones was charged with physically threatening guard Michael Panichelli after Panichelli searched his cell and "seized as contraband" a pink highlight marker and a tape dispenser. Jones denied the charges. "It's all a fabrication. I never threatened him," Jones stated during the ensuing investigation.


At his disciplinary hearing, Jones requested the opportunity to question Panichelli and another guard (Tyson) he says was an eyewitness. The hearing officer instructed Jones to put the questions to both guards in writing and postponed the hearing until the guards submitted their written responses. The guards' written statements were then used to find Jones guilty. Punishment was assessed at 180 days of segregation and the forfeiture of 180 days commutation time. Jones contended on appeal that "he should have been afforded the opportunity ...

New Jersey Supreme Court Upholds $1.6 Million Harassment Verdict

by Matthew T. Clarke


The Supreme Court of New Jersey up-held one of the largest female-on-male sexual harassment compensatory damage awards and fees, sending the even larger punitive damage award back to the trial court for reconsideration.


Robert L. Lockley, a New Jersey Department of Corrections (DOC) guard filed suit ...

Two Level Review Required for Publication Rejection, but Qualified Immunity Granted

The Ninth Circuit Court of Appeals held the failure to provide a two-level review process when rejecting incoming publications violated procedural due process, but granted prison officials qualified immunity for the violation. Arizona prisoner Lawrence Krug filed a 42 U.S.C. § 1983 action seeking injunctive relief and monetary damages. Krug had 63 publications rejected because they were deemed obscene; he appealed each rejection. The same official who rejected the publications also rejected the appeal of that decision.


Krug's complaint alleged, among other things, the system for excluding incoming publications as obscene violated his right to procedural due process. The Arizona Department of Corrections (ADOC) is bound by a consent decree in Hook v. Arizona, 907 F.Supp 1326. ADOC is authorized to exclude publications deemed to be obscene under applicable constitutional standards, rather than obscene standards set by prison officials, as is occurring in other states. Any dissatisfied prisoner, under Hooks, is allowed "to discuss the reasons for exclusion with the Deputy Superintendent, whose decision shall be final". From 1973 to 1997, exclusions were reviewed by an official other than the one who made the initial determination. In 1997, that practice changed to allow review to be made ...

BOP Rule Denying Early Release Eligibility Violates APA

A federal court in Oregon held that Bureau of Prisons (BOP) drug treatment rules violate the Administrative Procedures Act (APA).


"18 U.S.C. § 3621(b) directs the Bureau of Prisons (BOP) to provide substance abuse treatment to those prisoners who have a `treatable condition of substance addiction or abuse.' As an incentive for prisoners to seek treatment, congress made one-year sentence reductions available to prisoners convicted of nonviolent offenses who completed substance abuse treatment programs. 18 U.S.C. § 3621(e)(2)(B)."


"Prior to 1997, the BOP's implementing regulation and program statements defined `nonviolent' offense to exclude any conviction accompanied by the possession of a firearm or other dangerous weapon. The Ninth Circuit rejected such an interpretation, holding that the BOP cannot define `nonviolent offense' to exclude firearm possession when Congress defines `nonviolent offense' in precisely the opposite way. Davis v. Crabtree, 109 F.3d 566, 569 (9th Cir. 1997); see also Downey v. Crabtree, 100 F. 3d 662, 667 (9th cir. 1996)."


"In response, the BOP amended its regulation and program statements, governing prisoners' eligibility for early release. See 28 C.F.R. 550.58; P.S. 5162.04 (Oct. 9, 1997); P.S. 5330.10 ...

Certification for Interlocutory Appeal Order Discussed in California Prison Labor Suit

A California federal district court has declined to certify an order for interlocutory appeal because the factual and legal issues in this case are not complex and will not necessitate protracted and expensive litigation. Richard P. Loritz, II, a prisoner at California's R.J. Donovan Correctional Facility, brought this action challenging a California Department of Corrections (CDC) policy that precluded him from participating in a Joint Venture Program with CMT Blues because he was in the Correctional Case Management System program. PLN previously reported on CMT Blues having an $841,000 judgment entered against them for cheating prisoners out of wages. [PLN December 2002, p. 16.]


The defendants moved to dismiss the only remaining claims in this action, violation of the Americans with Disabilities Act and Rehabilitation Act claims, because he failed to exhaust administrative remedies. The Court denied the motion holding that although he failed to file an appeal on the final level within 15 days as required by CDC policy, Loritz is not barred from maintaining this action because the CDC has discretion to deviate from the rules governing the filing of appeals. The defendants moved for a discretionary interlocutory appeal.


The Court said to certify an ...

Discipline Without Notice Violates Due Process; BOP Administrative Exhaustion May Be Excused

Discipline Without Notice Violates Due Process;
BOP Administrative Exhaustion May Be Excused


A federal district court in Oregon held that a federal prisoner's procedural default in failing to exhaust administrative remedies would be waived. The court also held that disciplining a prisoner for violation of a rule he had no notice of violates due process.


Scott Seehausen, a BOP prisoner confined at FCI-Sheridan telephoned David Reyes-Espinosa, a former member of his prison softball team. Reyes-Espinosa was on home confinement at the time. As a result of the telephone call Seehausen was disciplined for violating a telephone policy that prohibited prisoners from calling prisoners at a halfway house.


During the hearing, Seehausen argued that there was nothing in the prison policies indicating that he could not call another prisoner. The Hearings Officer acknowledged that Seehausen was given an early version of the Prisoner "Handbook that `did not spell out the new telephone procedure initiated in early 2000.'" However, the Hearings Officer found Seehausen had sufficient notice of the prohibition due to: "(1) a town hall meeting where rules governing telephone use were discussed; (2) an article in the prison newsletter discussing telephonic activities that would subject an inmate to discipline ...

No Ex Post Facto Violation in Forcing Washington Prisoner to Take Stress and Anger Classes

No Ex Post Facto Violation in Forcing Washington Prisoner
to Take Stress and Anger Classes


The Washington state supreme court unanimously held that a prisoner determined by the Washington state Department of Corrections (DOC) to require Stress and Anger Management (SAM) classes can be forced to take such classes or forfeit good time credits if he did not. Steven Forbis, a prisoner at the Washington State Penitentiary, convicted of murder in 1988, challenged the Washington DOC policy enacted in 1993, that required virtually all prisoners to take SAM classes as violating the ex post facto clauses of the Washington and United States constitutions. A court of appeals granted Forbis's personal restraint petition, holding that as Forbis was imprisoned in 1988, the policy could not be applied to him. See: In Re Forbis, 113 Wn. App. 822, 57 P.3d 630 (Div. I. 2002).


DOC Policy 302.400 instituted a case management program aimed at "clearly articulating expectations for offenders while under the Washington DOC's jurisdiction." In a 1994 special session, the Washington legislature authorized the DOC to determine which prisoners would benefit from SAM classes. Forbis's counselor determined that SAM classes would assist Forbis with "recognizing and ...

New Trial Ordered in Washington Strip Cell Conditions Suit

The Ninth circuit court of appeals has reversed for a new trial a Washington state prisoner's claim that he was placed in barbaric strip cell conditions for ten days because the district court allowed prejudicial hearsay testimony to be admitted in the jury trial held before judge Franklin Burgess in Tacoma. PLN previously reported the filing of the case. See PLN, February, 2002. After a trial on the merits, the jury returned a verdict in favor of the defendants. The plaintiff, Sylvester Mahone, appealed.


On February 28, 1998, Mahone was a prisoner in the Intensive Management Unit (IMU) at the Clallam Bay Corrections Center. After Mahone saw a guard spit in his food, he extracted a piece of steel rebar from a cement partition in his cell and used it to cause substantial damage to his IMU cell and its fixtures. Mahone was then placed in a strip cell by guards.


Mahone testified guards cut off his prison jumpsuit before placing him in the strip cell, which maintained a temperature of 50 to 55 degrees. His bed was a bare concrete slab; he was never provided with a mattress. "It felt like I was sitting inside a freezer," Mahone ...

Pretrial Detainee Has Limited Right to Litigate Civil Matters

The U.S. Court of Appeals for the Ninth Circuit affirmed a district court's dismissal of a state prisoner's claim that he was denied access to court because he was detained in jail on an unrelated criminal matter.


In April 1995, Christopher Simmons was involved in a two-car accident. Michael Mirante ran a red light, hit Simmons' car, and caused $500 in damage plus $9,000 in medical expenses. Simmons sued Mirante, rejected Mirante's offer of $10,000, and demanded $100,000. Simmons' lawyer withdrew and Simmons proceeded pro se. In September 1998, the matter went to trial in Sacramento County Superior Court but Simmons did not appear because jail officials would not transport him to the proceeding. The court entered a default judgment against Simmons.


In December 1995, wholly unrelated to the Mirante matter, Simmons was arrested for driving a stolen vehicle, possessing crack cocaine, and possessing stolen property. Simmons was held in Sacramento County Jail until his criminal trial which began in November 1998.


Unhappy with the Mirante default judgment, Simmons filed suit in U.S. District Court under 42 U.S.C. § 1983 naming the Superior Court, the judge who entered the default, Mirante ...

Applicability of FTCA to BOP Causes Circuit Split

Applicability of FTCA to BOP
Causes Circuit Split

by David M. Reutter


Three recent federal circuit court rul-ings exhibit a dispute between the circuits as to whether the Federal Tort Claims Act (FTCA) applies to property claims against the federal Bureau of Prisons (BOP). Each of these cases, filed by federal prisoners claim the BOP is liable for its employee's acts of negligently losing or destroying a prisoner's property under the FTCA.


The FCTA "provides generally the United States shall be liable to the same extent as a private party, `for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employee.'" See: 28 U.S.C. § 1345(h). This broad waiver of sovereign immunity, however, is subject to thirteen exceptions listed in 28 U.S.C. 2680(a)_(n). At issue in the three appellate cases is the construction of the waiver that "shall not apply to&.[a]ny claims arising in respect of the assessment or collection of any tax or customs duty or the detention of any goods or merchandise ...

$15 Million Award for Wrongful Conviction Upheld

$15 Million Award for Wrongful
Conviction Upheld


The U.S. Court of Appeals for the Seventh Circuit affirmed a district court's denial of qualified immunity for two Chicago policemen who had concealed evidence and induced witnesses to testify falsely against a man wrongfully convicted of murder.


James Newsome was ...

Absence of AEDPA in Texas Law Library May Toll Limitations

by Matthew T. Clarke


The Fifth Circuit court of appeals has held that the absence of a copy of the Anti Terrorism and Effective Death Penalty Act, (AEDPA) in a Texas prison's law library coupled with the prisoner's lack of knowledge of the passage of the AEDPA may excuse the late filing of a federal petition for a writ of habeas corpus.


Jack Donald Egerton, a Texas state prisoner, filed a federal habeas petition on October 1, 1998. It concerned his February 12, 1996, conviction. The district court dismissed the petition as time barred under the AEDPA's one-year limitation statute, 28 U.S.C. § 2244(d)(1). Egerton appealed.


The Fifth Circuit granted a Certificate of Appelability (COA) and a limited remand to determine "whether Egerton was aware of the existence of the AEDPA prior to the expiration of the limitations period." Egerton had claimed that he was denied any access to legal materials at the Middleton Transfer Facility where he was incarcerated from the time of his conviction until May 31, 1996, when he was transferred to the Moore Unit. He also alleged that the Moore Unit, where he remained until his March 17, 1998, transfer ...

NYPD Commissioner Charged With Stealing $112,733.98 from Jail Prisoner Fund

NYPD Commissioner Charged With Stealing $112,733.98
from Jail Prisoner Fund

By Matthew T. Clarke


On July 11, 2003, NYPD Deputy Po-lice Commissioner of Community Affairs Fredrick J. Patrick, 38, was arrested on federal charges that he looted close to $113,000 from the New York City Correctional Foundation, a non-profit corporation, incorporated in 1993, to improve jail conditions in New York City. Patrick has been the Foundation's Director and Treasurer since 1994. The money was used to pay for collect calls from prisoners to Patrick's home phone, including "thousands and thousands" of calls he patched through to "900" sex lines between January 1997 and December 2001, apparently listening in on the calls. Patrick admitted spending the money on phone calls, paying his MCI and NYNEX bills with Foundation checks.


The investigation is part of a probe into the diversion of $1 million in cigarette rebates from the Correction, Department to the Foundation and the Foundation's substandard record keeping. The phone calls seem to have been an obsession with Patrick and may have been his main leisure activity. 81% of the calls were on weekends and Patrick was unable to cease calling even with investigators breathing ...

Dismissal Sanction for Prisoner's Refusal to Be Deposed Without Court Order Reversed

Dismissal Sanction for Prisoner's Refusal to be Deposed Without Court Order Reversed


The Tenth Circuit Court of Appeals held that considering a prisoner's refusal to be deposed absent a court order, as a factor to enter a sanction of dismissal is improper. The Court further held the failure to enter a default judgment for the prisoner was not an abuse of discretion.


Michael Ashby, a Colorado prisoner confined at the Crowley County Correctional Facility (CCCF), alleged in his 42 U.S.C. § 1983 complaint that food he ate at CCCF was contaminated with glass, causing him internal injuries. Ashby sued two officials at CCCF and other "shell" companies owned by Correctional Services Corporation (CSC).


CSC has set up a complex web of shell companies to avoid liability and, in this case, service. The progress of this litigation was delayed because of a dispute over the existence/designation of defendant Crowley Correctional Services Limited Liability Company (Crowley LLC). Crowley LLC did not file an answer for nineteen months, and Ashby moved for default judgment. The Tenth Circuit held the district court did not abuse its discretion in denying that motion due to a pending motion to dismiss Crowley LLC ...

Kansas Grievance Procedures Inapplicable in Negligence Action

The Kansas Court of Appeals held that a state prisoner was not required to follow prison grievance procedures to exhaust administrative remedies before filing a negligence action. The court also held that the prisoner was not required to: file his claim with the prison and legislature's joint committee on special claims against the state or fill out a claim form and return it to prison officials before bringing the claim to the joint committee. Finally, the court held that failure to use the form provided by the Department of Corrections (DOC) did not deprive the state of adequate notice of a claim filed with the joint committee.


On April 7, 1998, Kansas DOC prisoner Doyce Bates suffered severe injuries including crush injuries to his pelvis and back, as well as a severed urethra while operating a road grader. He filed suit against the state and DOC in relation to the accident. The case was dismissed for lack of subject matter jurisdiction due to Bates' alleged failure to exhaust administrative remedies.


"Bates then filed a claim with the legislature's joint committee on special claims against the State (joint committee). The joint committee denied the claim following a hearing on ...

Illinois County Necessary Party in Suit Against Elected Official

Illinois County Necessary Party in Suit
Against Elected Official


In a case of great importance to those seeking damages in suits on jail conditions in Illinois, the Seventh Circuit Court of Appeals held a county must satisfy any judgment or settlement of a lawsuit against a Sheriff in his official capacity. The plaintiffs in this action held a $500,000 federal judgment against Illinois' LaSalle County Sheriff, which resulted from the settlement of claims under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964. Because the Sheriff's Office lacked funds to pay the judgment, the plaintiff's tried to collect from LaSalle County, who denied any obligation. The district court agreed with the County's position, which left the plaintiffs unable to collect their judgment.


In response to a question from the Seventh Circuit, the Illinois Supreme Court determined that the County is required to pay the judgment against an independently elected county officer who is sued under official capacity. This responsibility lies regardless of whether the case was settled or litigated. See: Carver v. Sheriff of LaSalle County, 787 N.E. 2d 127, 272 Ill. Dec. 312, 203 Ill. 2d 497 (2003 ...

Confinement for Willful Failure to Pay LFOs Upheld

The Washington state court of appeals held that confining a criminal defendant for 60 days for failing to pay his legal financial obligations (LFOS) was proper.


In 1993, John Woodward pleaded guilty to burglary and auto theft charges, for which he was sentenced to 36 months in prison and to pay LFOs of $2,760, including $2,550 in restitution.


In November 1999, the State petitioned to confine Woodward for failing to pay his LFOs. At that time he was $665 in arrears on a total obligation of $3,695.05. In January 2000, the Superior Court entered a noncompliance order and required Woodward to spend 20 days in jail.


In June 2000, the State again petitioned to confine Woodward for failing to pay his LFOs. At that time, he was $1,055 in arrears and his total obligation had grown to $3,978.08. In October 2000, the court entered a noncompliance order, imposing 23 days of confinement.


In January 2001, the State petitioned a third time to confine Woodward for failing to pay his LFOs, for which he was $195 in arrears on a total obligation of $4,315.57. The court, in turn, entered third noncompliance order ...

No Crueler Tyrannies: Accusation, False Witnesses, and Other Tyrannies of Our Times

by Dorothy Rabinowitz. 2003. Free Press, ISBN: 0-7432-2834-0

Review by Robert Woodman


"There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice." These words, uttered by Charles-Louis de Secondat, Baron de Montesquieu, in 1742, inspire the title and the theme of Dorothy Rabinowitz's latest book. Rabinowitz, winner of the 2001 Pulitzer Prize in commentary and a member of the editorial board and a culture critic for The Wall Street Journal, writes about the waves of hysteria that swept America in the 1980's and 1990's when reports of bizarre, ritualistic mass sex abuse of children by day care workers and others began surfacing in news media reports.


Rabinowitz tackles cases she wrote about in The Wall Street Journal. Her primary focus is on the terrible, blatant injustice done to the Amirault family of Malden, Massachusetts, but she also details the cases of Kelly Michaels, Grant Snowden, Dr. Patrick Griffin, John Carroll, and the mass roundup of an alleged sex ring in Wenatchee, Washington. She points out false accusations by vindictive or psychologically-disturbed persons (or, in Kelly Michaels' case, a misunderstanding blown out of proportion) combined with prosecutors ...

Texas Monitors Prisoners for-Signs of Al-Qaeda Recruitment

by Matthew T. Clarke


Fears of possible al-Qaeda recruitment among prisoners in U.S. prisons have led officials to take a fresh look at prisoners with a view to their possible recruitment by al-Qaeda. Texas has taken the process to an extreme, closely monitoring the state's ll4 prisons for signs of prisoner membership.


The increased scrutiny in Texas started when, in late 2001, a Muslim group showed a video tape of California Imam Al-Hajj Muhammad Abdullah preaching a "Message to the Oppressed." The message blamed Zionism, fascism, imperialism, and the military-industrial complex for the 9-11 attacks, exonerating al-Qaeda and characterizing the U.S. response to the attacks as a war against Islam and Muslims. The warden of the Beto Unit, where the tape was shown, felt the political content was inappropriate for a religious prison program and brought it to the attention of other prison officials.


Texas has only 150 prisoners of Middle Eastern descent among its 150,000 prisoners. However it has 7,600 prisoners registered as Muslim, one of the largest Muslim prisoner populations in the U.S.


Texas officials claim that their program of closely examining prisoners' mail (especially when written in Arabic, Farsi, or other ...

Virginia Prison Vendors Lose Contracts to Out-of-State Supplier

Three Virginia retailers who made their money from prisoner earnings now find themselves in financial trouble. In August 2003, when the Virginia Department of Corrections (DOC) relinquished management of prison commissaries to St. Louis-based Keefe Supply Co., three Virginia vendors filed suit against the prisons in Richmond Circuit Court.


Virginia Smacks Inc., Highland Beef Farms and Lee Hartman & Sons have literally lost millions of dollars under the privatization package.


Based on their common misery the three companies brought suit against the DOC alleging that the privatization deal with Keefe is illegal in that the St. Louis Company is allowed to benefit from cheap prison labor. "You can't provide inmate labor to a private enterprise as a subsidy," said Ian Wilson, attorney for the plaintiffs.


Keefe first took over five Virginia prisons in 2002, under former Corrections Director Ron J. Angelone. Department spokesman Larry Traylor says that privatization centralizes the process, is more efficient and saves the state money. Keefe went from management of five commissaries in 2002 to thirty-seven in 2003.


Wilson points to contract documents that show that the privatization package always intended to provide Keefe with "inmate labor, at a very low cost." He argues that this ...

BOP Medical Detainees Not Subject to PLRA

In a brief per curiam opinion, the court of appeals for the Eighth circuit held that a Federal Medical Center detainee in Missouri was exempt from the administrative exhaustion provisions of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).


The court held that civilly committed detainees are not "prisoners" within the meaning of the PLRA and thus are not bound by its requirements when they challenge their conditions of confinement. The court agreed with Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000) that the PLRA applies only to people accused or convicted of violating criminal laws. The district court had dismissed the case for failure to exhaust administrative remedies.


The court of appeals reversed the district court's dismissal of the plaintiff's case, holding that the prison trust fund account procedures of 28 U.S.C. § 1915 do not apply to civilly committed detainees. The case was remanded for further proceedings. See: Perkins v. Hedricks, 340 F.3d 582 (8th Cir. 2003).

Jailhouse Snitch Enlisted in War on Terrorism Behind Bars

Scott Lee Martin couldn't help himself. After a decade locked up in a half-dozen federal prisons where snitches, rats, informantsor whatever the regional prison slang calls those who tell on othersare detested, spat upon, beaten, even killed for their acts, Martin decided to become the honorable snitch. "Whether his idiosyncratic personal sense of honor had eroded or improved is unclear," reports Benjamin Weiser of the New York Times. Reality, however, depends on your point of view which, in turn, depends on whether you're a prisoner of America's prison machine or a tough-on-crime hardliner.


Martin wasn't confused about his personal sense of honor in 1995 when he told a Denver federal judge that "Everybody wants to go home from prison, but not everybody is willing to go home at the expense of their honor." Five years later he wasn't confused when he decided to "play the system as much as he could," according to the New York Times. A year later he testified against a white prisoner found with a weapon in USP Marion after a black prisoner, Terry Lamar Walker, was stabbed to deatha hit allegedly sanctioned by the Aryan Brotherhood. Martin also told the ...

Innocent Ohio Man Paid $750,000 for 10 Years Imprisonment

In 1991, Jimmy "Spunk" Williams, 32, was convicted of raping a 12 year-old girl, and sentenced to life in prison. Williams was appointed attorney Tom Watkins to represent him at a December 2001 parole hearing. Convinced of Williams' innocence, Watkins set up a meeting with the victim's father. Three months later, the girl recanted her identification of Williams. She maintained she was raped, but admitted in court she had never seen her attacker's face. In February 2001, a judge set Williams free.


Watkins then filed suit on Williams' behalf to seek compensation for his wrongful imprisonment. Despite the victim's recantation, prosecutors maintained Williams was guilty. After a civil trial, a Summit County judge declared Williams innocent, allowing him to pursue his compensation claim. Negotiations with the state ensued.


In May 2003, Williams fired Watkins after rejecting a settlement offer of $538,000. Williams then retained Akron attorney Edward Gilbert. In September 2003, Gilbert negotiated a $750,000 settlement that Williams accepted. On September 22, 2003, the State of Ohio agreed to pay Watkins $49,240 and Gilbert $35,343 in fees for their work.


Williams, however, has not been able to enjoy the fruit of the settlement ...

Tennessee Officials Pay $450,000 to Settle Lawsuit in Detainee's Murder by Guards

Tennessee Officials Pay $450,000 to Settle Lawsuit
in Detainee's Murder by Guards

by David M. Reutter


Wilson County and City of Lebanon, Tennessee, jail officials agreed to pay the widow of Walter Steven Kuntz $450,000 to settle a lawsuit that charged jail guards beat him to death. Following a traffic accident in January 2003, Kuntz was arrested and taken to the Wilson County Jail. Several hours later, he was found in a coma and later died at a local hospital. State Medical Examiner Bruce Levy ruled Kuntz's death a homicide, saying Kuntz died of blunt force trauma to the head and torso.


Kuntz's widow, Oletta Lynn Kuntz, filed an $80 million civil rights suit against the county and city. In September 2003, the city and county settled the suit. In early November 2003, Lebanon City officials announced they had settled with Oletta for $50,000. That information was released only after The Tennessean and The Lebanon Democrat filed suit under Tennessee's Public Records Act to have the settlement's details disclosed.


County officials, however, cited a confidentiality agreement between the parties and a current federal and state investigation into Kuntz's death to withhold ...

Texas Probation Officer Charged With Having Juvenile Probationer's Baby

Texas Probation Officer Charged With Having
Juvenile Probationer's Baby

by Gary Hunter


Laura Hernandez, a 32 year old probation officer, was arrested October 30, 2003 when it was discovered that the father of her child was only 16 years old.


The boy had been placed on probation for possession of an unloaded gun. Once in Hernandez' custody the two became intimate. She admitted taking the boy to a restaurant and to the movies. She claimed it was a reward for his getting good grades in school. But the boy's younger siblings told their mother that they had seen Hernandez and their brother "with their clothes off in...[his] bedroom."


Hernandez' original story was that the baby's father was a 29 year old man from Laredo. But the former Fort Worth probation officer's story fell apart when the 16-year boy's mother realized the truth.


For a time the youth had hinted at being a father. His mother initially dismissed the idea until she discovered the baby's picture in her son's wallet.


"It had a name and a date on there," she said. "We didn't know anyone named Hernandez, and so I put two ...

$252,000 Awarded in Kansas Prisoner's Suicide

The suicide of Scotty Ray Sisk, a prisoner at Kansas' Shawnee County Department of Corrections (KDOC) has resulted in an award of $252,000 to his parents. On July 6, 1999, Sharon Sisk called the prison and told guard Joel Manzanares that she thought her son was suicidal and had ...

Ohio Native American Prisoner Granted Injunction to Grow Long Hair

Ohio Native American Prisoner Granted Injunction
to Grow Long Hair

by David M. Reutter


An Ohio federal district court has granted a prisoner at Ohio's Madison Correctional Institute (MCI) a preliminary injunction that allows him to grow his hair in accordance with his religious beliefs. Prisoner Cornelius Wayne Hoevenaar is a Native American of Cherokee ancestry. According to his religious beliefs, his ancestors guide him in life as well as in his religious practices. As such, connecting to his ancestors is a key aspect of his religion. Having long hair is essential to his religious practices because hair is the key to receiving positive energies and connecting to his ancestors through the ceremonies he performs. He believes that his hair is also what connects him to the "Red Road of Life," or the path to spirituality. Prison officials did not contest the sincerity of Hoevenaar's religious beliefs.


Hovenaar alleged MCI's grooming regulations that requires a prisoner hair not to extend over the ears or shirt collar violates his rights under the Religious Land Use and Institutionalized Persons Act and the First Amendment. First, the court analyzed the RLUIPA claim, which holds a government entity that accepts federal ...

Dismissal of Prisoner's Divorce Petition Is Abuse of Discretion

Dismissal of Prisoner's Divorce Petition
Is Abuse of Discretion


A Texas state court of appeals has reversed the dismissal for want of prosecution of a Texas prisoner's divorce action. Joe Lee Buster, a Texas state prisoner, filed a suit for divorce. He was unable to locate his wife, so he could not serve her. He was also unable to obtain service by publication, despite repeated attempts to do so. After eighteen months on the district court's docket, the court dismissed the suit for want of prosecution. Buster appealed.


The court of appeals held that Buster had done all he could reasonably do to prosecute the case. He had filed numerous requests for assistance in serving process. He had requested appointment of counsel, as authorized by Texas Government Code § 24.016, to assist him in service of process. He had asked for a bench warrant to appear at the hearing on dismissal, or, in the alternative, to be allowed to appear via affidavit or other alternative means. "Seemingly there was a complete breakdown in communication between the trial court and Buster, and because of Buster's status as an indigent and an inmate, he could not reasonably remedy ...

DOJ Investigation: Conditions in Arkansas Prisons Unconstitutional

Conditions at the McPherson and Grimes Correctional Units in Newport, Arkansas are unconstitutional, the U.S. Department of Justice concluded after an 18-month investigation. According to the investigation report, dated November 25, 2003, investigators found that prisoners at both units experienced deliberate indifference to their serious medical needs, were not adequately protected from physical harm and sexual assault, and were exposed to unsanitary and unsafe conditions.


McPherson is the state's only women's prison. Built to house roughly 600 prisoners, it held approximately 700 at the time of the investigation. Grimes housed young men from 16-24 years of age. The units are part of a single complex. Both are comprised of barracks-style dormitories (which have been found unconstitutional as far back as 1970).


Originally operated by Wackenhut Corrections Corporation, the state resumed control of the prisons in July 2001 after refusing to pay for increased operating costsbut the problems persist.


Medical Care


Medical care at the prisons, which is provided by Correctional Medical Services (CMS), was found to be seriously deficient.


For instance, asthmatics' access to chronic care was impeded by a CMS policy prohibiting medical personnel from ordering inhalers, instead requiring the prisoners to report to the infirmary ...

Washington Prisoners Get Credit for Time Spent at Liberty

The Washington State Supreme Court has held that prisoners mistakenly released early by the State Department of Corrections (DOC) are entitled to credit against their sentences for the time they spend out of custody. In so ruling, the state supreme court adopted the federal equitable doctrine of "credit for time at liberty."


In September, 1998, Michael W. Roach was sentenced to prison on two cause numbers by the Thurston County Superior Court in Olympia, Washington. Roach was sentenced concurrently to 13 months incarceration for trafficking in stolen property on one cause and 31 months for burglary and related crimes on the other. On May 3, 1999, after a paperwork snafu, the DOC mistakenly released Roach 18 months early. Roach had no post-release supervision.


On May 13, 1999, the DOC realized its mistake and tried to locate Roach to serve the remainder of his time. However, Roach had moved to Indiana without the DOC knowing where he had gone. The DOC then obtained an arrest warrant for Roach, which Indiana police discovered when they stopped Roach on a traffic violation in April 2002. Roach was later extradited to Washington to serve the remainder of his sentence.


Roach filed a Personal Restraint ...

Tennessee Supreme Court Holds No Procedural Protection Needed for $5 Fine

Tennessee Supreme Court Holds No Procedural Protection
Needed for $5 Fine

by Matthew T. Clarke


On August 23, 2003, the Supreme Court of Tennessee (SCTN) held that 30-days punitive segregation followed by administrative segregation of unstated duration were not "atypical and significant" events in prison life and being so punished did not raise a liberty interest allowing prisoners to challenge the disciplinary procedure in court. A $5 fine was also insufficient to raise a property interest to challenge in court. However, allegations that the prison officials failed to follow disciplinary procedures were cause for issuing a common law writ of certiorari.


Edward Tharpe and Tony Willis, Tennessee state prisoners, were cellmates. Acting on the tip of a confidential informant, prison officials found pliers in their cell and charged them with the disciplinary offense of attempted escape. Both were found guilty and given 30-days punitive segregation, unspecified administrative segregation, and a $5 fine. Both exhausted administrative remedies and filed a joint petition for common-law writ of certiorari challenging their convictions in chancery court.


The chancery court granted prison officials' motion to dismiss under Tennessee Rule of Civil Procedure 12.02(6) for failing to state a claim for relief because the ...

California's New Governor Must Reconsider Former Governor's Parole Reversal

by John E. Dannenberg


The California Court of Appeal found that former Governor Davis's reversal of the grant of parole for a second degree murderer was not wholly supported by "some evidence," and returned the case for a new review by recently-elected Governor Arnold Schwarzenegger.


Ernest Smith, a California state prisoner serving 17-life for second degree murder, was found suitable for parole in 2001 by the Board of Prison Terms (BPT). However, Governor Davis reversed the BPT. Smith then won a writ of habeas corpus in the Santa Clara County Superior Court on grounds that Governor Davis had a blanket "no parole policy," that his decision violated ex post facto protections and that there was not "some evidence" to support his decision.


Relying upon In re Rosenkrantz, 29 Cal.4th 616 (2002) [PLN, July '03, p.30], the court found that although the body of statistics was now more fully developed, the same conclusion followed, i.e., that the governor had a selective but not an absolute policy on lifer parole reversals.


Again relying upon Rosenkrantz, the court found the ex post facto claim [that the governor's reversal power was enacted after Smith's crime] had been rejected ...

Washington Failure to Disclose Prison-Phone-Rate Suit Dismissed, State Supreme Court Grants Review

Division I of the Washington State Court of Appeals has affirmed a trial court dismissal of an action challenging phone companies' failure to disclose the rates for collect calls made by Washington prisoners. Relief was denied because the plaintiffs did not bring the appropriate agency into the suit and did not cite the agency's regulations, as set out below.


Sandy Judd and Zuraya Wright received collect calls from a family member in a Washington prison [PLN editor Paul Wright]. Tara Herivel, an attorney and prison reform activist, received calls from many Washington prisoners. The phone service providers use an "alternate operator" system (a recording directing call recipients to press 1 to accept the call). Rates for such calls are very high, but the recording did not disclose this.


The plaintiffs, unhappy about the lack of warning about the rates, sued the phone companies in the King County Superior Court. They sought injunctive and monetary relief under state telecommunications and consumer protection laws. After the suit was filed, all the prison phone companies began providing rate information either as part of the recorded message or as a touch tone option. This mooted the equitable relief claims. The superior court dismissed ...

Indiana Appeals Court Allows Prisoner to Sue to Receive Pornography

The Court of Appeals of Indiana, partly reversing the Marion Superior Court, held that an Indiana Department of Corrections (DOC) prisoner can sue the DOC for its refusal to let him receive pornographic material.


Jerry Montgomery is a DOC prisoner at the Indiana State Prison (ISP). He sought to receive via mail pornographic material depicting sexual penetration, citing Indiana Code 11-11-3-6, which prohibits DOC from "exclud[ing] printed matter on the grounds it is obscene or pornographic unless it is obscene under Indiana law." ISP officials denied his request citing DOC policy.


Montgomery sued ISP, DOC, the State Personnel Advisory Board, the Indiana Civil Rights Commission, and the DOC Commissioner in Marion Superior Court citing statutory and constitutional rights violations. The State of Indiana moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim. Montgomery moved for default judgment because the State failed to answer his complaint (under Indiana law, a motion to dismiss is not a responsive pleading). The trial court dismissed holding that it lacked jurisdiction to review DOC's "internal administrative decisions." Montgomery appealed.


The Court of Appeals held that although the trial court could not review the DOC's administrative procedures and ...

News in Brief

Alabama: On February 3, 2004, Phillip Brown, 23, a former state prisoner, boarded a work release bus transporting prisoners to work and abducted prisoner Okoni Lattimore, 28, at gunpoint. Lattimore later turned himself in to prison officials. He suffered a severe beating, including the loss of several teeth. Brown had been released from the same prison Lattimore is held at less than five weeks earlier. No motive was given for the attack.


Arizona: On February 25, 2004, Kathleen Liden, 33, a guard with the Arizona Department of Juvenile Corrections was arrested charges of sexually abusing a minor for allegedly having sex with a male juvenile prisoner in her care.


California: On February 21, 2004, Miles Woodford, 44, a guard at the Solano State Prison in Vacaville was shot and killed by local police when he pointed a gun at a female deputy outside his home. Woodford had been drinking heavily at the time of the incident and when his children told him police were outside their home, he loaded a gun and went outside to point it at police. Police were at the home to investigate two 911 calls.


Canada: On February 7, 2004, twenty prisoners at the Edmonton Institution ...

Minnesota Pay-To-Stay Programs Don't Deliver

Minnesota counties are finding out that charging prisoners for staying in jail is not the cash cow they had hoped for.


Forcing prisoners to pay for their own incarceration has become a national trend. In the summer of 2003 the Minnesota legislature followed suit, enacting legislation allowing counties to implement so called pay-to-stay programs.


As a number of Minnesota counties can attest, however, these programs are rarely cost-effective. Olmstead County was able to collect only 2% of the $546,000 billed to prisoners in the first four months of its program.


Even then the county doled out $13,000 in operating costs to collect $7,261 in fees. The county is now attempting to curb costs by eliminating its sliding scale fee of up to $70 and implementing a flat $25 fee. "I think the public needs to understand that there is a good lesson here," said Olmstead County Commissioner Paul Wilson. "Even with the best of intentions you can't get blood from a turnip."


But some counties are still trying. Like Olmstead, Sherburne County has also collected only about 2% of the boarding fees charged in the first year, but officials there are not dissuaded. "A dollar derived ...

 

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