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Prisoner Education Guide

Prison Legal News: June, 2004

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Volume 15, Number 6

In this issue:

  1. Welcome to Guantanamo World (p 1)
  2. Ex Con "Helps Police" by Trying to Murder Sex Offenders (p 7)
  3. Law-and-Order Former Texas Attorney General Lands in Federal Prison (p 8)
  4. From the Editor (p 10)
  5. Court Continues Oversight and Orders Corrections in Georgia Jail (p 10)
  6. $450,000 Settlement in California Prison Murder Suit (p 11)
  7. California's Proposition 36 Parole Violator Drug Treatment Program Covers Probation Violators (p 11)
  8. Pro Se Tips and Tactics (p 12)
  9. Florida's Incarceration Cost Recovery Statute Constitutional (p 13)
  10. Federal Supermax Terrorist's New Home and Bargaining Chip; $1 Million Cells Planned (p 14)
  11. Wackenhut Changes Name to Geo Group, Politics Remain the Same (p 16)
  12. 2000 Census of Prisons, Prison Populations Published (p 17)
  13. $22 Million Washington Parole Liability Verdict Affirmed, Review Granted by State Supreme Court (p 18)
  14. The Inmate's Guide to Prison Health Care (p 18)
  15. Videotapes Prove Abuse of 9/11 Detainees by Federal Guards (p 19)
  16. Suits in Michigan and New Jersey Seek to Force HCV Treatment (p 20)
  17. Nebraska Prisoners Win Summary Judgment on Phone Access and Monitoring Issues (p 20)
  18. U. S. Supreme Court Rules Consent Decrees May Be Enforced (p 21)
  19. California's Budget Secret: Prisoners Form Core of Forest Fire Fighting Army (p 22)
  20. Capitalist Punishment: Prison Privatization & Human Rights (p 22)
  21. New York Prisoner Awarded $335,000 for Non-Treatment of Fistula (p 23)
  22. Amended Pennsylvania Parole Statute Ruled Ex Post Facto; Third Circuit Orders Release on Parole (p 24)
  23. Jury Finds for Corcoran Guards in Prisoner Rape Suit (p 25)
  24. Actual Damages Required to Maintain Suit Under Federal Privacy Act (p 26)
  25. $1.4 Million Awarded in Kansas Prisoner Death (p 26)
  26. Missouri Guards Liable for Refusing Prisoner's Seatbelt Request (p 27)
  27. $135,000 Paid in New York Jail Sexual Harassment Settlement (p 27)
  28. $1.5 Million Illinois Prison Rape Verdict Overturned (p 28)
  29. Indictment Dismissed for Failure to Comply with Interstate Agreement on Detainers (p 29)
  30. Pro Se Indiana Prisoner Awarded $100,000 in Failure to Protect Suit (p 30)
  31. Illinois Segregation Brutality Suit Fails Because Injury Was De Minimis (p 30)
  32. Jury Awards Maryland Prison Guard $1.6 Million for Discrimination (p 31)
  33. Do New York Shiite Prisoners Have a Right to Separate Services? (p 31)
  34. California Prisoner Not Earning Wages Is Denied Workers' Comp (p 32)
  35. Ninth Circuit Affirms California Parole Denial Based On "Some Evidence" (p 32)
  36. D.C. Prisoners Serving Life Sentences Have No Right to Earn Good Time Credits on Maximum Terms (p 33)
  37. California Pays $1.25 Million for Woman Crushed by State Prison Bus (p 33)
  38. Unearned Good Time Credits May Not Be Withheld as Disciplinary Sanction (p 34)
  39. County Must Disclose Detention Center Settlement to Newspaper (p 34)
  40. Preliminary Injunction Automatically Expired in 90 Days for Alabama Women Prisoners (p 35)
  41. Pauper's Declaration Sufficient for Cost Bond in Texas Medical Malpractice Suit (p 35)
  42. Administrative Hearings and Judicial Reviews Mandated for Sex Offender Classifications Without Current Felony Conviction. (p 36)
  43. RFRA May Protect Federal Prisoners' Right to Cast Spells (p 36)
  44. Capello Decision Remains Good Law (p 37)
  45. Injunctive Relief Granted for Parole Rescission Based on Free Speech (p 37)
  46. Kansas Trial Courts Have Latitude in Setting Restitution Payments (p 38)
  47. Notice Required in Texas Parole Date Rescission (p 38)
  48. Consent Decree Entered in Unconstitutional BOP Parole Revocation Procedures (p 38)
  49. Qualified Immunity Appeal Deemed Frivolous; California Pays Beaten Prisoner $149,500 (p 39)
  50. Plaintiff Entitled to Trial on Question of Whether Mental Illness Warrants Tolling Statute of Limitations (p 39)
  51. Arkansas Work Release Prisoner Entitled to Unemployment Benefits (p 40)
  52. PLRA Only Requires Exhaustion of Applicable Remedies (p 40)
  53. Kansas Good Time Regulations Enacted After Prisoner's Crime May Not Be Applied Retroactively (p 40)
  54. BJS Says 1 in 15 Adults Will Go to Prison (p 41)
  55. Los Angeles County Pays $2.75 Million for Illegal Strip Searches (p 41)
  56. News in Brief (p 42)
  57. Common Fund Required for Incentive Award (p 44)

Welcome to Guantanamo World

The clue for 17 across, a seven-letter
empty space in the Friday, March 26, New York Times crossword puzzle was "detainee's entitlement." It took me a while to break the code _ the Friday crossword's always a nightmare _ and discover that the "entitlement" was "one call" (which fit with 5 down, "obsessed captain" _ Ahab). I thought to myself, isn't that a clue for another lifetime. More up-to-date might have been, "no calls," even if "obsessed captain" (of which we have more than a few at the moment) would have had to move elsewhere. Actually, we should probably do some other cultural revising to fit our changed circumstances. Now, for instance, when E.T. finds himself trapped on Earth, there will be no calls home and no help will be at hand. After all, this is Guantanamo World.


That same week I noticed a tiny, authorless Reuters piece way in the back pages of the Los Angeles Times news section headlined, Guantanamo Commander Sent to Iraq. It began:


"The Army general in charge of the prisoner operation at the U.S. naval base at Guantanamo Bay, Cuba, has been reassigned to oversee prisoner detention operations in ...

Ex Con "Helps Police" by Trying to Murder Sex Offenders

Between April 12 and April 25, 2003,
Lawrence Trant, Jr., 56, tried to kill 8 registered sex offenders in Concord, New Hampshire. Trant set fire to a boarding house, to an apartment building and ultimately stabbed one man in the street. All of the victim's names and addresses were easily obtained by Trant through New Hampshire's sex offender registration program posted on the internet.


At approximately 4:00 a.m., on April 12, 2003, Trant poured gasoline on the entrances to a downtown rooming house and set it ablaze. Thirteen people lived in the house. Six were registered sex offenders. Eight days later, Trant set fire to the apartment of Peter Bruce, another registered sex offender. Fortunately, no one was hurt in either incident. Trant's last victim, however, was not so lucky.


Lawrence Sheridan, 34, a registered sex offender, was returning to a prison halfway house about 8:45 p.m. on Friday, April 25, after attending an Alcoholics Anonymous (AA) meeting. Trant, riding a bicycle, overtook Sheridan, jumped off the bike and stabbed him with a large knife as numerous drivers and pedestrians looked on. After the attack, one driver gave Sheridan a ride to the ...

Law-and-Order Former Texas Attorney General Lands in Federal Prison

Law-and-Order Former Texas Attorney General
Lands in Federal Prison

by Matthew T. Clarke


Dan Morales, the former Texas at
torney general who ran on a law-and-order platform, was sentenced on October 31, 2003, to four years in federal prison after pleading guilty to mail fraud and filing a false income tax return.


Morales was indicted by a federal grand jury on March 6, 2003, for twelve counts of mail fraud, conspiracy, filing a false tax statement, and making a false statement on a loan application in connection with his attempting to defraud the state of $520 million in lawyer fees from the $17.3 billion anti-tobacco lawsuit, using campaign funds to purchase a $775,000 house, and falsifying his 1998 income tax return. Morales had faced a potential maximum sentence of 83 years in federal prison and $3.6 million in fines.


Morales was Texas Attorney General from 1991 until 1999. He is particularly remembered for being tough on "deadbeat dads," showing no mercy for state prisoners who accumulated hundreds of thousands of dollars in child support arrears while serving decades as unpaid slaves of the state. As part of his plea bargain, Morales admitted backdating a government contract and ...

From the Editor

This month's cover story reports on
the U.S. government's clandestine network of prisons around the world. The story was written before the news about the torture and murder of Iraqi prisoners appeared. The only thing that would have been unusual would have been the news that prisoners in Iraq and Afghanistan were not being tortured, abused and mistreated since that has been standard treatment for prisoners in all U.S. sponsored counter insurgency wars in the post World War II era.


For PLN readers, the mistreatment, torture and abuse of prisoners is nothing new. Every issue of PLN contains plenty of news and stories of proven, verified accounts of prisoner abuse occurring right here in the US. This issue of PLN contains the article on the Inspector General's report confirming the abuse of people detained in the wake of the 9-11 attacks. Given the treatment of American prisoners, the poor treatment of Iraqi and Afghan prisoners should come as no surprise.


Long before they went to Iraq to inflict misery and mayhem on prisoners in that country, PLN had reported on the myriad human rights abuses of Lane McCotter, Terry Stewart and John Armstrong when they ...

Court Continues Oversight and Orders Corrections in Georgia Jail

by David M. Reutter


"The Court is totally out of patience with the assurances and promises that compliance will be achieved" with the Final Settlement Agreement signed on January 24, 2000. So said Judge Shoeb, U.S. District Court Northern District of Georgia, when ordering Fulton County, Georgia, to ease overcrowding at its jail and provide adequate medical care to its pre-trial detainees. This case was brought by HIV detainees at the jail, and PLN has previously reported this litigation. See: PLN September 2000.


Despite two years elapsing since the settlement agreement was approved, the Court found the defendants were "far from compliance" in several areas. First, the Court found the Fulton County Jail exceeded its physical capacity by a significant number. The jail was originally designed for 1,332 prisoners, but before construction was completed double bunks were installed to increase capacity to 2,250. Since the settlement agreement, the jail's population hit a high of 2,544 and a low of 2,266. The significant factor in overcrowding is the detention of persons held for misdemeanor offenses.


The latest report showed 208 persons held upon misdemeanors who were not formally charged. These detainees await a formal decision ...

$450,000 Settlement in California Prison Murder Suit

The California Department of Corrections (CDC) agreed on October 15, 2003 to pay $450,000 to settle the civil rights complaint brought by the surviving family of a prisoner murdered by his cellmate.

Jeffrey Ford, an effeminate homosexual serving prison time for petty theft at the California Medical Facility in ...

California's Proposition 36 Parole Violator Drug Treatment Program Covers Probation Violators

by John E. Dannenberg


The California Court of Appeal judicially extended the reach of California's parole violator alternative drug treatment program, Proposition (Prop.) 36 (Nov. 7, 2000, codified at Penal Code §§ 1210, 1210.1, 3063.1) to include similarly situated probation violators. Prop. 36, which permits a drug treatment sentencing alternative to prison time for selected drug possession offenses, was enacted to both rehabilitate drug offenders as well as reduce prison overcrowding.


Gregory Guzman was on three years probation for a non-violent, non-serious felony conviction when he pled guilty to possession of methamphetamine a non-violent drug possession offense (NVDPO). Because of his new NVDPO conviction, his earlier two year felony probation was revoked and he was remanded to state prison. In addition, he was given probation for the NVDPO and ordered to participate in a drug treatment plan upon his release from prison.


Guzman noted that if he had violated parole instead of probation for the same underlying conviction, he would have been eligible for a Prop. 36 drug treatment alternative, and argued unsuccessfully to the trial court that as a probation violator he should be treated no worse.


The Court of Appeal, Sixth Appellate District, first analyzed Prop ...

Pro Se Tips and Tactics

The Supreme Court recently decided
another in a series of cases about when prisoners can sue directly under 42 U.S.C. § 1983, versus when they must first employ habeas corpus proceedings, to challenge actions by prison officials. The difference is very important because if a prisoner must follow the habeas route, then she or he must go first to state court through any habeas proceedings available there and if unsuccessful in state court file a federal habeas corpus action. Then, if the prisoner has been able to get the prison officials' actions overturned in the state or federal habeas proceeding, he or she can then file a § 1983 action for damages. By contrast, in cases where a prisoner is not required to pursue the habeas route, the prisoner can start in federal court with the § 1983 lawsuit, saving lots of time and trouble.


The general rule regarding in-prison incidents, such as challenges to disciplinary proceedings, is that if the challenge involves length of confinement in any way (such as impact on good time credits), a prisoner must first get the underlying charge overturned in a habeas proceeding before trying to get damages in a § 1983 action. Edwards v. Balisok ...

Florida's Incarceration Cost Recovery Statute Constitutional

The Florida Supreme Court held that
a Florida statute that imposes civil liens for recovery of incarceration cost and victim restitution violates neither the Ex Post Facto Clause or Due Process. Florida prisoner 011ie James Goad, who has been incarcerated since February 1991, initiated a "civil action" against the Florida Department of Corrections (FDOC) in 1995 for injuries he sustained when he was attacked by another prisoner. In response to the claim, FDOC moved for summary judgment and filed a counterclaim under § 960.293 and 960.297, Florida Statutes (supplement 1994) to recover costs of Goad's incarceration.


By the terms of § 960.297, the state may recover costs in the amount of $50 per day for the portion of the prisoner's remaining sentence after July 1, 1994, the effective date of the law. The trial court granted the FDOC summary judgment on Goad's claim. Goad then moved for judgment on the pleadings on the counterclaim. The trial court held § 960.297 would violate the ex post facto clause because the statute was not in effect at the time Goad committed his criminal offense. The First District Court of Appeals reversed, concluding § 960.293 and 960.297 "afford ...

Federal Supermax Terrorist's New Home and Bargaining Chip; $1 Million Cells Planned

Federal Supermax Terrorist's New Home and Bargaining Chip;
$1 Million Cells Planned

by Bob Williams


The United States PenitentiaryAdministrative Maximum Facility goes by many names: ADX, Supermax, Alcatraz of the Rockies. It has been the federal Bureau of Prison's (BOP) home to problem and high profile prisoners since opening in 1994. Its published capacity in August 2003 was 490. Today, it's home to some of the most notorious criminals and political prisoners in federal custody. Its conditions are so harsh that avoiding it has become a bargaining chip for prisoner cooperation and plea negotiations. And now BOP director Harley Lappin wants $23 million to build 24 new super-secure cells for convicted terrorists.

Terrorist's New Home

A review of federal records conducted by the Denver Post shows that political prisoners have been transferred to ADX from other prisons since the September 11 attacks. Bernard Kleinman, the New York attorney representing Ramzi Ahmed Yousef, told the Denver Post that ADX has become the prison of choice for terrorists ... they have shipped them all there.

The BOP strategy is not new but based on the European model for housing political prisoners. For example, in Spain, Basque separatists are imprisoned ...

Wackenhut Changes Name to Geo Group, Politics Remain the Same

The old maxim, the more things change, the more they stay the same," could have been tailored to Wackenhut these days. Although Wackenhut Corrections has spun off from its parent company, Wackenhut Corporation, there's no indication that the political involvement which brought it this far will change anytime soon.

Wackenhut Corrections was born as a subsidiary of the Wackenhut Corporation in 1984 when George Zoley presented the idea of a separate prison management company to Wackenhut founder George Wackenhut. Although Wackenhut Corrections began trading its stock separately in 1994, it remained a subsidiary of Wackenhut Corporation. In May 2002, the Danish securities firm Group 4 Falck bought Wackenhut Corporation for its security guard division. The sale included 57 percent of Wackenhut Corrections (43 percent was owned by investors). Group 4 immediately announced it would sell the corrections division for $170 million [PLN, October 2002].

Since that time, Zoley, who is Wackenhut Corrections' Chairman and CEO, has focused on buying Corrections back. He succeeded in July 2003, purchasing Group 4's 57 percent stake for $132 million. The move boosted Corrections' bottom line by 70 cents per share.

However, even with the discounted buy back and the sale of its ...

2000 Census of Prisons, Prison Populations Published

The Bureau of Justice Statistics (BJS), in August 2003, released the findings of its Year 2000 Census of State and Federal Prisons. The report found that from the previous census in 1995 to 2000 the number of Federal, State, and privately-operated prisons increased from 1,464 facilities to 1,668 facilities. The total rated capacity of these facilities rose from 975,719 to 1,278,471 persons, while the actual incarcerated population rose from 1,023,572 to 1,305,253 prisoners. Excluded from the census were jails and other local or regional detention facilities, private prisons not holding primarily State or Federal prisoners, prison hospital wards not operated by prison authorities, and prisons or other detention facilities operated by the military, the Immigration and Naturalization Service, the U.S. Marshals Service, and the Bureau of Indian Affairs.

Due to the delay in publishing the results, all the actual statistics in the report are outdated as the prison population has significantly increased, and continues to increase exponentially. However, the report is still useful as a means of measuring change as it occurs - and trends.

Of the prisons surveyed, private facilities showed the largest percent increase in number of operating prisons ...

$22 Million Washington Parole Liability Verdict Affirmed, Review Granted by State Supreme Court

$22 Million Washington Parole Liability Verdict Affirmed,
Review Granted by State Supreme Court


On August 8, 1997, Vernon Valdez
Stewart stole a car, sped through an intersection in Tacoma, Washington, and collided with another vehicle. The accident killed the driver of the other car, Paula Joyce. Stewart was under community ...

The Inmate's Guide to Prison Health Care

by Dr. D.M. Granit, Two Rainbow Publishing Co., Oct. 2003, 106 pp.

Review by John E. Dannenber


The Inmate's Guide to Prison Health
Care offers prisoners a unique perspective on how to get the best response to their health care needs: being a better patient. Dr. D.M. Granit (pseudonym and not a doctor) has doled out health care to California prisoners for thirteen years, only to see the prisoners act (or react) to perceived difficulties in getting the medical care they need in such a way as to unwittingly diminish the results. In an effort to mitigate this frustration, Granit offers rare insight from the caregiver's viewpoint to improve the patient-caregiver relationship, and thereby, the quality of health care. Although based upon Granit's California Department of Corrections experience, the Guide is a useful tool for all prisoners and their families.


The Guide is neither a medical manual nor a legal text, and is not written in technical language. To the contrary, it is aimed at prisoners of modest educational backgrounds, so as to bring its message to all detainees in prisons, jails and camps. It begins with a description of how prison health care systems ...

Videotapes Prove Abuse of 9/11 Detainees by Federal Guards

by Matthew T. Clarke


On December 18, 2003, Glenn A.
Finer, Inspector General of the U.S. Justice Department, released a report which found that guards at the Metropolitan Detention Center (MDC) in Brooklyn, New York, physically and verbally abused detainees arrested as part of a federal immigration sweep following the 9/11 attacks. The report also stated that MDC employees routinely videotaped meetings between the detainees and their attorneys.


The federal sweep conducted in the weeks following the September 11, 2001, attacks netted over 1,200 foreigners, 762 of whom were the focus of Fine's initial probe. The detainees were mostly from Arab or South Asian countries. Attorney General John D. Ashcroft ordered them held on immigration charges while they were investigated for possible terrorist ties. No detainee has even been charged with terrorism-related crimes. Commonly ignored by the media is also the fact that no suspect has been charged with a crime related to the 9/11 attacks - who was not already in prison when they occurred.


In June, 2003, Fine released a report in which he found "a pattern of physical and verbal abuse" at Brooklyn MDC. However, the guards denied any wrongdoing so that Fine ...

Suits in Michigan and New Jersey Seek to Force HCV Treatment

A groundswell of prisoner litigation is taking aim at states to force them to comprehensively and meaningfully address HCV in prison. These suits, often brought as class actions, seek to mandate a protocol for HCV detection and treatment that satisfies Eighth Amendment guarantees against cruel and unusual punishment.


New Jersey and Michigan contract their state prison medical program to for-profit Correctional Medical Services, Inc. (CMS), based in St. Louis, Missouri. The tension of this arrangement is obvious: states seek to fix costs of prisoner healthcare by making it a per-body commodity like food, thereby distancing themselves from day-to-day responsibility of providing constitutionally adequate medical care, while CMS hopes to maximize its profits by providing the least healthcare it can get away with. The result is that unless prisoners sue CMS, they and the community they return to with their untreated diseases become powerless victims.


Accordingly, two suits were filed in New Jersey and Michigan, sounding in 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 et seq., seeking injunctive relief to provide constitutionally responsible care and damages where it has been denied. Walter Bennett and three other named New Jersey prisoner plaintiffs ...

Nebraska Prisoners Win Summary Judgment on Phone Access and Monitoring Issues

Nebraska Prisoners Win Summary Judgment on
Phone Access and Monitoring Issues

by Matthew T. Clarke

A Nebraska state district court
granted Nebraska state prisoners' summary judgment on issues involving the monitoring and recording of phone calls to government officials, courts, and attorneys, and the denial of calls to some attorney phone numbers and all news media numbers.

In 1997, Tarty McCroy, Gary Pope, David Ditter, and Thomas Nesbitt, Nebraska state prisoners, filed suit in state court under the First, Sixth, and Fourteenth Amendments to the U.S. Constitution, their state equivalents (Article I, Sections 3, 5, 13. and 19 of the Nebraska Constitution), seeking to prevent the recording of phone calls to courts, State Senators, government officials; the restriction of attorney confidential calls to a single business number; the denial of all calls to attorneys who haven't appeared for the prisoner in a matter which is scheduled for a hearing within 14 days; the denial of calls to law firm staff, paralegals, law clerks, and 411 information; and the denial of calls using 800 numbers, cellular phones, or call forwarding, call waiting, and conference calling. These restrictions on prisoners' phone calls were brought about by the implementation of Nebraska ...

U. S. Supreme Court Rules Consent Decrees May Be Enforced

In a decision with implications for
prisoners' suits, the United States Supreme Court held that consent decrees may be enforced by federal courts. In 1993, mothers of children eligible for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services under Medicaid sued several Texas state officials under 42 U.S.C. § 1983 for failing to comply with federal law. In 1994, the U.S. District Court certified a class of more than one million persons. In 1996, the district court approved a settlement agreement entered into by state officials and plaintiffs. The eighty-page agreement created a comprehensive plan for compliance with EPSDT that "require[d] state officials to implement many specific procedures" not explicitly mandated by the statute.


State officials failed to comply with the decree, so two years later, plaintiffs sued in District Court for enforcement. The officials objected on grounds that the Eleventh Amendment protected them from enforcement. The district court disagreed and ordered proposals for remedies of the violations. See: Frew v. Gilbert, 109 F.Supp.2d 579 (E.D. Tex. 2000). On interlocutory appeal, the Fifth Circuit agreed with state officials and reversed. See: Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002). The U ...

California's Budget Secret: Prisoners Form Core of Forest Fire Fighting Army

California's Budget Secret: Prisoners Form Core
of Forest Fire Fighting Army

by Peter Wagner


In California, up to three quarters of
the crew members fighting California fires are prisoners. In exchange for a reduction in sentence length, 4,100 minimum security prisoners work fighting fires and on public works projects for $1 or less an hour.


Prisoners contributed 3.1 million hours fighting fires in California last year, earning only $1 an hour. By contrast, the average forest fire fighter in the U.S. earns $17.19 an hour, or $35,760 a year. Prisoners working on public works projects earn even less, $40 a month.


Using prisoner slave labor saves the state of California $200 million a year, $80 million in salary and $120 million in employee benefits and security costs. With almost one-third of minimum security prisoners moved from behind razor wire and onto the fire-lines, prison costs are therefore lower.


The program is not limited just to adult prisoners. In 2003 the California Youth Authority contributed 684,000 slave-hours to firefighting, saving the state $3.9 million. Of course, it does not appear any of the savings were redirected into college scholarships for previously incarcerated youths ...

Capitalist Punishment: Prison Privatization & Human Rights

Capitalist Punishment: Prison Privatization & Human Rights

Edited by Andrew Coyle, Allison Campbell, & Rodney Neufeld,Clarity Press, Inc;

Zed Books (2003) 234 pp. Softback

Review by Mark Wilson


Proponents of prison privatization argue that for-profit prisons make good sense, "promis[ing] reduced costs to governments, better and more cost-effective services to prisoners and increased security for people living in communities where prisons are located." Capitalist Punishment, however, paints a starkly different picture, providing overwhelming evidence that "[p]rison corporations have not lived up to their promises. They have not saved governments substantial amounts of money, nor have they proven to be more secure. Instead, they have contributed to an unacceptable level of neglect and violence against [prisoners] and detainees, diminished rights for the guards and other employees, a risk to the community, and are set to be a heavy burden for the public purse over many years in those countries which have experimented with them."


Capitalist Punishment's diverse and impressive array of contributors leave no stone unturned in their exploration of the flaws and failures of for-profit prisons and jails. They address the history, politics, and economics of massive prison expansion and private sector involvement in America and abroad, discussing privatization experiments in Australia, Canada, France, South Africa, and the United Kingdom ...

New York Prisoner Awarded $335,000 for Non-Treatment of Fistula

On November 20, 2002, a state court of claims in Rochester, New York, awarded the estate of Olevia Ousley-Winters $335,000 after determining that prison doctors failed to properly diagnose and treat Ousley-Winters' medical condition. (Ousley-Winters died prior to trial, apparently from unrelated causes.)

While imprisoned at the Westchester County ...

Amended Pennsylvania Parole Statute Ruled Ex Post Facto; Third Circuit Orders Release on Parole

Amended Pennsylvania Parole Statute Ruled Ex Post Facto; Third Circuit Orders Release On Parole

by John E. Dannenberg


The US District Court (E.D. Pa.) held that a 1996 amendment to the Pennsylvania Probation and Parole Act violated constitutional ex post facto protections because it increased to a significant degree the likelihood that petitioner will be in jail longer than if the pre-1996 policy would have been followed." The habeas remedy accorded was to order a new parole hearing conducted under the pre-1996 standards.

State Prisoner Louis Mickens-Thomas' life sentence for aggravated murder was commuted by the governor in 1995 to a 32 year term. Later in 1995, Pennsylvania enacted a law that anyone so released to parole must first complete a one year pre-release program. Admission to this program was at the discretion of the Department of Corrections, however, which in turn relied upon the Board of Pardons' concurrence. Mickens-Thomas was denied this program and thus the parole he was due in 1996.
At his 1996 parole hearing [the Parole Board is independent of the Board of Pardons], he was denied parole based upon an additional freshly minted amendment to the underlying parole laws. Whereas the pre-1996 law was ...

Jury Finds for Corcoran Guards in Prisoner Rape Suit

On Tuesday, October 21, 2003, a
jury found four employees at California State Prison, Corcoran not responsible for the rape of prisoner Eddie Webb Dillard by a fellow prisoner. The verdict was read by District Judge Anthony W. Ishii, following a four week trial and six hours of deliberation by the seven member jury.


Dillard charged in the federal civil rights trial that guards Robert Decker, Anthony Sylva, Joe Sanchez, and former medical assistant Kathy Horton-Plant arranged and then covered up his rapes by Wayne Robertson, a convicted murderer notorious for sexually assaulting prisoners. Dillard contended the rapes, which took place over two days in March of 1993, were arranged to punish him for kicking a female guard at another prison.


The Fresno Bee reported on the defendants', jurors', and lawyers' comments outside the courtroom. Sylva expressed disappointment in the California Department of Corrections. "Mr. Robertson should have been on single-cell status long before Eddie Dillard," Sylva said, saying the California Department of Corrections was "negligent" for allowing the two men to be placed in the same cell. "The CDC not only failed him (Dillard), it failed us," he said.


Robert L. Bastian, one of Dillard's lawyers, agreed with ...

Actual Damages Required to Maintain Suit Under Federal Privacy Act

Actual Damages Required to Maintain Suit
Under Federal Privacy Act


The United States Supreme Court recently held that a showing of actual damages is required in order to maintain a civil action brought under the Privacy Act of 1974. The Privacy Act regulates the collection, maintenance, use, and dissemination of citizens' personal information by federal agencies. The Act provides a cause of action against the United States for an agency's failure to comply with its provisions. See: 5 U.S.C. § 552a(g)(1)(A)-(D). Specifically, subsection (g)(1)(D) states that a person may sue for violations not covered by other subsections of the Act, so long as an agency's mishandling of a person's information had an "adverse effect." For "intentional and willful" violations of subsection (g)(1)(D), a person may obtain monetary relief for "actual damages sustained but in no case shall a person entitled to recovery receive less than the sum of $1,000," as well as costs and reasonable attorney fees. 5 U.S.C. § 552a(g)(4).


Buck Doe filed for benefits under the Black Lung Benefits Act with the Office of Workers Compensation, a division of the Department of ...

$1.4 Million Awarded in Kansas Prisoner Death

In August, 2003 a State Jury in
Leavenworth County, Kansas, awarded the son of a Kansas State prisoner who was killed after being stabbed by another prisoner on August 8, 2000, $1.4 million. Donald R. Grisham was stabbed on his 27th birthday at the Lansing Correctional Facility laundry room ...

Missouri Guards Liable for Refusing Prisoner's Seatbelt Request

Missouri Guards Liable For Refusing Prisoner's Seatbelt Request

by John E. Dannenberg


The Eighth Circuit U.S. Court of Appeals permitted a 42 U.S.C § 1983 complaint to proceed against five Missouri Department of Corrections (MDOC) transportation guards for injuries suffered by a shackled prisoner in a prison van crash after his request to have his seatbelt fastened was refused. The court also held he stated a claim against three guards who later refused his request to see prison medical staff.


Randell Brown, wearing belly chains, handcuffs, a black box and leg chains, was being transported in a three-van caravan. But it was what he was not wearing a seatbelt that gave rise to his complaint. Prior to departing, Brown's request to have his seatbelt fastened was denied by the five guards, responding "aw hell you all will be alright," and "what, you all don't trust our driving? You don't think we're gonna wreck do you?" Traveling at speeds of 70 to 75 miles per hour and passing in marked no-passing zones, the three vans crashed into each other while trying to simultaneously return from the passing lane. All of the prisoners were thrown ...

$135,000 Paid in New York Jail Sexual Harassment Settlement

A New York City Department of Corrections guard reached a settlement of $135,000 in her federal civil rights suit alleging sexual harassment. Guard Virginia Jones began a consensual sexual relationship with Captain Michael Baxter in March 1998. Jones contended that in September 1998, she ended the relationship with Baxter ...

$1.5 Million Illinois Prison Rape Verdict Overturned

In a 2-to-1 decision, the U.S. Court of
Appeals for the Seventh Circuit overturned a jury's $1.5 million verdict in favor of a prisoner who was sexually assaulted by his cellmate.


Anthony Riccardo and Juan Garcia were both housed in the segregation unit of the Centralia Correctional Center in Illinois. Both men were in segregation because they feared retaliation from the Latin Kings prison gang. Garcia himself was a member of the Latin Kings; Riccardo was not.


On May 28, 1997, Lt. Larry Rausch placed Garcia in a cell with Riccardo. That evening prior to lockdown, Riccardo sought out Rausch and told him that he believed his life was in danger if forced to cell with Garcia because the Latin Kings had a "hit" out on him. Rausch replied that there was nowhere else to place Garcia and that Riccardo could not refuse a cell assignment in segregation. Rausch later brought Riccardo and Garcia together and asked if they had a problem with one another. Riccardo shook his head in the negative.


Nothing untoward happened that evening or the next day, but on May 30 Garcia forced Riccardo to perform oral sex on him. The assault apparently ...

Indictment Dismissed for Failure to Comply with Interstate Agreement on Detainers

The Wyoming Supreme Court reversed a conviction and dismissed the underlying indictment because the State failed to bring the defendant to trial within the time period allotted in the Interstate Agreement on Detainers (IAD).


In 1997, Janvirgo Odhinn was sentenced to two to four years in the Nebraska Department of Corrections. He escaped the following year and, while on the lam, committed a larceny in Albany County, Wyoming. Odhinn was apprehended in Utah and extradited to Nebraska in 1999 to complete his prison term and face prosecution for escape.


On May 18, 2000, Wyoming officials notified the Nebraska DOC that Odhinn was wanted on larceny charges and requested a detainer be lodged against him. Odhinn was served notice of the detainer a month later and, on June 6, 2000, signed an IAD form requesting final disposition of the Wyoming charges within 180 days. The form contained a clause specifically waiving Odhinn's right to challenge extradition to Wyoming.


The DOC did not contact Wyoming officials and inform them of Odhinn's request for final disposition under the IAD. Instead, the DOC informed Wyoming that Odinn still faced prosecution for escape and would not be available for trial on the larceny ...

Pro Se Indiana Prisoner Awarded $100,000 in Failure to Protect Suit

On May 21, 2002, an Indiana federal district court held that state prisoner Robert Pierson was entitled to $100,000 in compensatory damages because prison officials failed to protect him from assault by another prisoner.

Pierson, 51, arrived at the Indiana State Prison in Michigan City in August 1997 and ...

Illinois Segregation Brutality Suit Fails Because Injury Was De Minimis

Illinois Segregation Brutality Suit Fails Because
Injury Was De Minimis

by John E. Dannenberg


An Illinois state prisoner who alleged
in a 42 U.S.C. § 1983 civil rights complaint that he had been maliciously injured by prison guards escorting him to administrative segregation, lost his appeal of the unfavorable court and jury verdicts below because there was no clear error in those verdicts' determination that his injuries were de minimis. The Seventh Circuit U.S. Court of Appeals did order a limited remand, however, for a factual determination as to whether any of the named defendants participated in allegedly later beating the prisoner in his segregation cell.


Aaron Fillmore, incarcerated at Illinois' maximum security Menard Correctional Center, was implicated in another prisoner's act of throwing scalding oil on two guards. Thirty minutes after the act, he was taken by the eight-man "Orange Crush" [Menard's orange-suited tactical squad] to the administrative segregation unit. Per procedure, Warden Thomas F. Page observed these proceedings and a video-grapher taped them.


Fillmore alleged excessive force on his wrists and groin during the transfer, with guards knocking his shoulder roughly into a "crank box," kicking and punching him in his cell, and then ...

Jury Awards Maryland Prison Guard $1.6 Million for Discrimination

In July 2003, a federal jury in Maryland awarded a former prison guard $1.6 million for the discrimination and hostile work environment he endured while on the job at a Maryland prison.


Mathen Chacko, a native of India, alleged in the lawsuit that for 20 years while employed as ...

Do New York Shiite Prisoners Have a Right to Separate Services?

by Matthew T. Clarke


The Second Circuit Court of Appeals
has held that a district court improperly dismissed a suit by Shiite Muslim New York state prisoners seeking separate religious services from the Sunni Muslims.


Thomas Pugh, Edward Hamil and Clay Chatin, New York state prisoners, filed suit against under 42 U.S.C. § 1983 alleging prison officials violated their constitutional right to freedom of religion by forcing them to hold prayer services and religious instruction together with the Sunni Muslims under a Sunni religious leader. The policy allowed only those religious elements which were common to all Muslims and required that the Shiites, who are a minority among New York Muslim prisoners, attend the prayer meetings, services, and instructional classes along with the Sunnis and accept Sunni religious leadership there. A religious diet was provided and ownership of religious paraphernalia allowed. During the course of this suit, as a result of other suits, a statewide Prison Protocol was initiated which allowed Shiite prisoners increased access to Shiite religious services and religious instruction. See: PLN, Sept. 2003, pp. 20-21; Cancel v. Goord, 717 N.Y.S.2d 610 (2d Dept. 2000). The Protocol also allowed only a single Muslim prayer ...

California Prisoner Not Earning Wages Is Denied Workers' Comp

California Prisoner Not Earning Wages is Denied Workers' Comp.

by John E. Dannenberg


The California Court of Appeals held
that a prisoner injured on his job in the prison laundry was entitled to a $0.00 Workers' Compensation Insurance Fund (Fund) award based upon his actual wages (no money - only time credits) rather than the $126/week the Workers' Compensation Appeals Board (Board) had awarded him that was based upon his demonstrated pre-prison earning capacity outside prison of $11,809.


Jerry Stentz claimed he sustained a back injury while working in the California Men's Colony state prison laundry. Upon his release from prison, he filed a temporary disability claim. The Fund determined his benefit to be $0 per week based upon his earnings in prison. He appealed to the Board, which ruled that he was entitled to a $126/week benefit based instead upon his pre-prison earnings capacity of $11,809. The California Department of Corrections (CDC), Stentz' employer, filed a petition for review in the state court of appeal.


The court focused on a strict construction of California Labor Code §§ 3370 and 4453. Section 3370 limits temporary disability awards [which accrue only after release from prison] to no ...

Ninth Circuit Affirms California Parole Denial Based On "Some Evidence"

Ninth Circuit Affirms California Parole Denial
Based On "Some Evidence"

by John E. Dannenberg


The Ninth Circuit U.S. Court of Appeals affirmed the U.S. District Court, E.D. Calif. denial of a California state lifer's federal habeas petition which had found "some evidence" to support one of the ten reasons the Board of Prison Terms (BPT) used to deny him parole. Parenthetically, the court reaffirmed the due process liberty interest in a parole date grounded in California law.


Jeffrey Biggs was convicted of first degree murder and sentenced to 25-life in 1985 for the 1981 murder of David Roberts, an intended witness against Biggs' employer in a 1982 $3 million stolen computer parts ring grand theft trial. (Biggs was convicted therein of receiving stolen property.) The BPT denied Biggs parole for two years in March, 1999 - in spite of his exemplary record earning A.A., B.S. and MBA degrees and two FAA aircraft mechanic certifications.


The District Court had parsed the denial into ten separate reasons, which in turn were based upon well-known boilerplate from the BPT's twenty-year old Form 1000(a). The question before the court on federal habeas review was whether the denial ...

D.C. Prisoners Serving Life Sentences Have No Right to Earn Good Time Credits on Maximum Terms

The United States Court of Appeals
for the District of Columbia recently held that prisoners serving life sentences with the possibility of parole have no right to earn good time credits on their maximum terms.


In the Mid-1980's, Eric Glascoe, Jibril Ibrahim, and Bobby Morgan ("petitioners") were each convicted of unspecified felonies in the Superior Court of the District of Columbia and sentenced to terms of at least 15 years to life. Pursuant to the D.C. Good Time Credits Act of 1986, D.C. Code § 24-428 (repealed), good time credits were applied to petitioners' minimum terms but not to their maximum sentences of life.


In 2000, petitioners filed a joint petition for writ of habeas corpus in the U.S. District Court for the District of Columbia, claiming that § 24-428 entitled them to good time credits on their maximum sentences. Petitioners relied on the language of § 24-428(a) & (b), which states that "[e]very person" is entitled to have good time credits applied "to the person's maximum term of imprisonment to determine the date when release on parole becomes mandatory." The district court denied the petition and a motion for reconsideration, but did issue a certificate of ...

California Pays $1.25 Million for Woman Crushed by State Prison Bus

A Ventura County, California jury
awarded $1.25 million on August 6, 2002 for the wrongful death of an 88 year-old woman who was run over by a full sized state prison bus as it was turning right out of the Fred C. Nelles Youth Correctional Facility in Whittier, California ...

Unearned Good Time Credits May Not Be Withheld as Disciplinary Sanction

Unearned Good Time Credits May Not Be Withheld As Disciplinary Sanction

by Bob Williams


The West Virginia Supreme Court of
Appeals has held that a state prisoner may not lose more good time credits as a disciplinary sanction than those actually earned as of the disciplinary hearing date.


Randy Bailey was sentenced to one-to-three years in state prison for his third DUI conviction. He was infracted numerous times in his first months for rule violations. Upon conviction he was sanctioned with a total of 18 months loss of good time, though he had only been incarcerated 156 days. His administrative appeals failed.


On writ of mandamus the Court reversed, citing the plain language of the good time statutes and the state constitution. West Virginia Code §28-5-27(c) (1992) states that a prisoner "shall be granted one day good time for each day he or she is incarcerated." Subsection (f) states that "all of the good time which has been granted" may be "forfeited and revoked" as a disciplinary sanction.


The Court ruled that the state and federal constitutions "do not give liberty to people: they protect a free people from deprivation of their God-given freedoms from governments ... which must follow ...

County Must Disclose Detention Center Settlement to Newspaper

The New Mexico State Court of Appeals has ruled that Dona Ana County must disclose to the Las Cruces Sun-News records relating to a civil suit settlement between the County and female jail detainees who were sexually abused by jail guards. Sun-News attorney fees were also awarded.


In 1999 a ...

Preliminary Injunction Automatically Expired in 90 Days for Alabama Women Prisoners

The U.S. District Court for the
Middle District of Alabama has brought to a halt prospective relief from unconstitutional conditions at an Alabama state women's prison because a previously entered preliminary injunction was allowed to expire under the Prison Litigation Reform Act (PLRA).


As reported in the September 2003 issue of PLN, p. 32, Linda Laube and 14 other female prisoners filed a § 1983 complaint over the overcrowded and unsafe conditions at three Alabama state prisons: the Julia Tutwiler Prison for Women in Wetumpka; the Edwina Mitchell Work Release Center located just yards from Tutwiler; and the Birmingham Work Release Center in Birmingham. A preliminary injunction was entered on December 2, 2002. See: Laube v. Haley, 234 F.Supp.2d 1227 (M.D. Ala. 2002).


By court order, the state filed a proposed remedial plan on December 30, 2002, and the prisoners responded on January 15, 2003. Oral arguments were held on January 29, 2003, and a new remedial plan was ordered by February 7, 2003. See: Laube v. Haley, 242 F.Supp.2d 1150 (M.D. Ala. 2003).


The state was granted an extension to February 21, 2002, when a supplemental proposed plan was submitted. The prisoners ...

Pauper's Declaration Sufficient for Cost Bond in Texas Medical Malpractice Suit

Pauper's Declaration Sufficient for Cost Bond
in Texas Medical Malpractice Suit

by Matthew T. Clarke


A Texas court of appeals has held
that a prisoner's unsworn declaration in support of his seeking to proceed as a pauper satisfies the statutory requirement under Article 4590i, § 13.01(a), Texas Revised Civil Statutes, (TRCS) that, within 90 day of filing suit, a person filing a medical malpractice claim file an expert report or post a $5,000.00 bond for each doctor sued.


Luke Clyde Teixeira, a Texas state prisoner, filed a medical malpractice suit in state court against John Hall, M.D. Teixeira then filed a motion to proceed as an indigent which included a declaration of his indigency. The trial court served the defendant without prepayment of fees, but did not specifically rule on Teixeira's motion.


When Teixeira failed to file an expert's report or $5,000.00 bond within 90 days of filing his suit, Hall filed a motion to require Teixeria to file a $7,500.00 bond within 21 days or have the suit dismissed pursuant to Article 4590i, § 13.01(a), TRCS. The trial court granted the motion and ordered Texeira to ...

Administrative Hearings and Judicial Reviews Mandated for Sex Offender Classifications Without Current Felony Conviction.

Mandating administrative hearings
and allowing for judicial review, the Colorado Court of Appeals has reversed a state district court's dismissal of a prisoner's challenge to his Colorado Department of Corrections (CDOC) sex offender classification.


Albert Fisher, serving time in the CDOC for aggravated motor vehicle theft, was classified without a hearing by the CDOC as S4 on the Sexual Violence Scale. Sex Offender Treatment Program (SOTP) is mandated for S-3 (institutional sexual violence), S-4 (prior misdemeanor or juvenile convictions or some past sexual allegation without underlying felony sex offense conviction), and S-5 (current felony sex offense conviction). Once classified S-3 or higher, prisoners cannot earn the maximum sentence reduction credits toward parole eligibility and sentence discharge unless they admit to being a sex offender and participate in SOTP.


Fisher filed an action pursuant to the Colorado Rules of Civil Procedure, Rule 106, which provides judicial review for abuse of discretion/lack of jurisdiction in quasi-judicial agency actions. Fisher claimed the CDOC's action violated his due process rights and the prohibition against ex post facto punishment. The district court dismissed Fisher's action claiming it lacked jurisdiction to review CDOC classification.


On appeal the Court reversed holding that ...

RFRA May Protect Federal Prisoners' Right to Cast Spells

RFRA May Protect Federal Prisoners'
Right to Cast Spells


The U.S. Court of Appeals for the
Seventh Circuit (7th Circuit) has reinstated a federal prisoner's religious freedom lawsuit under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1.


Kerry O'Bryan, a federal prisoner, was kept from practicing witchcraft (Wicca) by prison authorities, pursuant to a Bureau of Prisons (BOP) policy. Specifically, PS 5360.08 prohibits the "casting of spells/curses" in federal prisons. Under that policy, BOP officials forbade O'Bryan's practice of Wicca. Believing himself unlawfully restrained from practicing his religion, O'Bryan filed suit under the RFRA in federal district court. The district court dismissed the suit, saying that the RFRA had been held unconstitutional in Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). O'Bryan appealed to the Seventh Circuit.


The Seventh Circuit found that the Boerne court held that the RFRA could not be applied to the states through § 5 of the 14th Amendment to the U.S. Constitution. That ruling, however, did not diminish the RFRA's application to federal prison rules via the Necessary and Proper Clause, Art. 1 ...

Capello Decision Remains Good Law

The Washington Court of Appeals,
Division I, held that the Legislature exceeded its authority when it attempted to statutorily overrule the appellate court's decision in In re Personal Restraint of Capello, 106 Wn. App. 576, 24 P.3d 1074, review denied, 145 Wn.2d 1006 (2001). The appellate court's ruling sends a clear message that the courts, not the Legislature, are the final expositors of the meaning and proper application of statutory law.


In Capello, Division I held that the version of the community placement statute in effect between 1988 and 1992 did not authorize the Department of Corrections (DOC) to require prisoners sentenced under that provision to submit a pre-approved release address, unless the trial court specifically imposed that requirement as a condition of community placement. See PLN, February 2002, p. 13, for additional details.


The Legislature disagreed with the Capello court's interpretation of the former community placement statute and, on March 14, 2002, enacted Senate Bill 6664 in an attempt to statutorily overrule the decision. SB 6664 specifically requires all prisoners, including those sentenced under the community placement statute interpreted in Capello, to submit a pre-approved release address prior to being discharged on their early ...

Injunctive Relief Granted for Parole Rescission Based on Free Speech

Injunctive Relief Granted for Parole Rescission
Based on Free Speech


U.S. District Judge Joseph E. Irenas
of New Jersey recently granted Edward Forchion's request for a preliminary injunction reinstating him to New Jersey's Intensive Supervised Parole (ISP) pending trial on his claim that state officials reincarcerated him in retaliation for exercising his First Amendment rights of freedom of speech and assembly.


In September 2000, Forchion pleaded guilty to conspiracy to possess marijuana with intent to distribute and was sentenced to 10 years flat time. He was released into the ISP program on April 3, 2002. ISP is a court administered program that allows prisoners to be released from prison before the end of their sentences and placed on strict supervision. In order to be accepted into the program an inmate must be approved by the ISP Resentencing Panel, which is comprised of three appointed judges. The Panel's substantive decisions are not appealable.


While in the ISP program, Forchion was actively involved in political efforts to legalize marijuana. He organized and attended rallies, produced and participated in TV commercials, gave interviews to newspaper reporters, operated a website, and distributed leaflets. Forchion's conditions of supervision prohibited him ...

Kansas Trial Courts Have Latitude in Setting Restitution Payments

The Kansas Supreme Court has ruled
that K.S.A.2002 Supp. 21-4603d allows state trial courts to order prisoners to pay restitution from their prison accounts, and to order that a portion of such accounts be exempt from collection.


William Puckett was convicted of aggravated escape after he escaped from the Stockton Correctional Facility, a Kansas State prison, in January of 2001. He was sentenced to 21 months in prison and ordered to pay $5,870.40 in restitution. The Kansas Department of Corrections (DOC) was to collect the debt from Puckett's prison account, but his account was not to be reduced to less than $10. The DOC appealed the $10 exemption, and Puckett appealed having to pay any restitution while incarcerated.


Under the statute, trial courts "may" order a criminal "defendant to repay ... costs and expenses incurred by any law enforcement agency in the apprehension of the defendant, if one of the current crimes of conviction ... includes ... aggravated escape[.]" K.S.A.2002 Supp. 21-4603d(a) and (a)(8).


The state Supreme Court found that paragraph (a)(8) authorized the trial court to order Puckett to pay restitution because he was incarcerated for "aggravated escape." The court ...

Notice Required in Texas Parole Date Rescission

Notice Required in Texas
Parole Date Rescission


In an en banc opinion, the Texas Court
of Criminal Appeals has held that the parole board must provide a prisoner prior notice of a hearing before reconsidering its decision to grant the prisoner mandatory supervision release.


Charles Albert Barry, a Texas state prisoner, received notice that he would be released on his mandatory release date. However, he was not released on that date because, without notifying him, the parole board reversed its decision. Barry filed a petition for a writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure.


Under Texas Government Code § 508.149(b) the parole board may overrule prisoners' mandatory release dates. In Ex Parte Geiken, 28 S.W.3d 553 (Tex.Crim.App. 2000) [PLN, June 2001], the court held that a prisoner had a right to a meaningful opportunity to be heard prior to a decision being made about mandatory release and this implied that the prisoner must be given prior notice of a pending hearing on the matter and an opportunity to submit evidence in the prisoner's favor. In this case, the court held that the right to a meaningful opportunity ...

Consent Decree Entered in Unconstitutional BOP Parole Revocation Procedures

Consent Decree Entered in Unconstitutional BOP
Parole Revocation Procedures

by Bob Williams


The United States District Court for
the District of Columbia has approved a Consent Decree correcting unconstitutional parole revocation procedures of the United States Parole Commission (USPC) for the Washington, D.C. Metropolitan Area.


Pursuant to the National ...

Qualified Immunity Appeal Deemed Frivolous; California Pays Beaten Prisoner $149,500

( In a prisoner 42 U.S.C. § 1983 suit alleging the brutal beating of a San Quentin prisoner by six guards, United States District Judge Charles Breyer (N.D. Cal.) threatened sanctions against California's State Attorney General Bill Lockyer if the state stooped to appeal Breyer's ruling denying ...

Plaintiff Entitled to Trial on Question of Whether Mental Illness Warrants Tolling Statute of Limitations

The United States Court of Appeals
for the First Circuit recently held that a mentally ill woman presented sufficient evidence to warrant a trial on her claim that mental illness prevented her from filing suit for nearly 30 years.


In May 2002, Kristin Douglas filed a civil rights suit against officials at the York County Jail in Maine. She claimed that in 1971, while incarcerated for a traffic citation, a trustee with keys to her cell forcibly raped her and then allowed other prisoners to enter the cell to rape her as well. Recognizing that her suit was filed nearly three decades after the statute of limitations expired, Douglas claimed that she was entitled to statutory tolling because she was mentally ill between the period immediately following the alleged rapes and the date on which her suit was filed.


Jail officials moved for summary judgment, claiming that Douglas's suit was barred by the statute of limitations. To counter her claim of mental illness, jail officials presented the affidavit of Dr. Carlyle Voss, a psychiatrist, who concluded that Douglas's admitted psychological disorders did not result "in an inability to function in society in a way that prevented her from ...

Arkansas Work Release Prisoner Entitled to Unemployment Benefits

The Arkansas Court of Appeals, Division, II, held that a work release prisoner who loses his job as a result of a transfer to a prison to prepare him for parole is entitled to unemployment benefits as a result of losing his job. Kirk Rankin was an Arkansas state prisoner in a work release program. He was employed by Ready Temps Employment at the Nucor-Yamato Steel Mill in Blytheville. While working at Nucor Steel he was transferred to a different prison and no longer allowed to participate in work release as preparation for his parole.


Rankin then applied for unemployment benefits. His application was denied. A Board of Review hearing officer affirmed the denial, holding that while Rankin had no choice in the matter, he "voluntarily left his last work without good cause connected with the work." This was upheld by the Appeal Tribunal.


Rankin sought further review. In a brief opinion, the appeals court ruled in his favor. Noting that they will support Board of Review decisions if they are supported by substantial evidence, the court held the issue in this case was whether Rankin had exercised his own free will or choice in the separation from his employment ...

PLRA Only Requires Exhaustion of Applicable Remedies

The U.S. Court of Appeals for the
Second Circuit has reversed a federal district court dismissal of a prisoner's civil rights lawsuit for failure to exhaust available administrative remedies, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). The Second Circuit found that prisoners must exhaust only those procedures that might actually remedy the claimed violation.


On July 19, 2402, Demostede Mojias, a prisoner at the New York City Department of Corrections (NYC DOC), was handcuffed, taken to a secluded area at the facility, and beaten by two unnamed captains and four line guards. The NYC DOC grievance system renders complaints about assaults to be "non-grievable." Therefore, Mojias did not grieve the assault. Instead, he filed a personal injury complaint with the New York City Comptroller. When that complaint went unsatisfied, Mojias filed a civil rights action in federal court under 42 U.S.C. § 1983. Without notice, the district court dismissed the suit because Mojias had not filed a grievance on the incident. Mojias appealed to the Second Circuit.


The court recognized that § 1997e(a) requires prisoners to exhaust all available administrative remedies before suing prison officials in federal court. That ...

Kansas Good Time Regulations Enacted After Prisoner's Crime May Not Be Applied Retroactively

Kansas Good Time Regulations Enacted After Prisoner's
Crime May Not Be Applied Retroactively


The Kansas Supreme Court recently
held that an amended version of the Department of Corrections (DOC) regulation governing the award of good time credits cannot be applied to prisoners whose offenses were committed prior to the regulation's enactment without violating the Ex Post Facto Clause of the United States Constitution.


In 1987, Steve Kesterson was convicted of various crimes, several of which were sex offenses. At the time, the DOC regulation governing the award of good time credits stated that a prisoner's good time could be withheld only if he or she received disciplinary infractions during a review period. The DOC amended this regulation in 2000 to provide that a prisoner's refusal to participate in work or treatment programs would result in the denial of all good time credits available during the review period.


Following the enactment of the 2000 provision, DOC ordered Kesterson to participate in sex offender treatment. Kesterson refused because the program required him to admit that he committed the crimes he was convicted of and provide details of all sex crimes he had committed in the past, whether or ...

BJS Says 1 in 15 Adults Will Go to Prison

The Bureau of Justice Statistics (BJS)
reported in August 2003 that, if current American incarceration rates continue, 1 of every 15 persons born in the year 2001 will be incarcerated at some point in their adult lives. The report also found that at the end of 2001 there were 1,319,000 adults confined in State or Federal prison and approximately 4,299,000 living former prisoners. That is, about 1 in 37 living U.S. adults either were serving time or had served time in prison.


The BJS report tracked the prevalence of imprisonment in the United States from 1974 to 2001. In 1974, there were 216,000 men and women in State or Federal prison and 1,603,000 estimated living former prisoners. By 2001, these numbers had jumped to 1,319,000 adults incarcerated and 4,299,000 living former prisoners. This represents an increase from 1.3% of the adult U.S. population in 1974 to 2.7% of the adult U.S. population in 2001. Analyzing current incarceration rates, assuming they do not change, the BJS found that 6.6% (1 in 15) of all persons born in 2001 will be incarcerated as adults.


The ...

Los Angeles County Pays $2.75 Million for Illegal Strip Searches

by John E. Dannenberg


The County of Los Angeles settled
for $2.75 million the complaints of illegal strip searches and body cavity searches of female demonstrators at the Democratic National Convention in August, 2000, and the mistreatment and over detention of all plaintiffs. An additional settlement with the City ...

News in Brief

Arizona: On June 1, 2004, over 20 prisoners in the Yavapai county jail became very ill after an unidentified person put industrial soap in the dinner meal's iced tea. One prisoner was in critical condition and several others were hospitalized afterwards. Police were investigating.


Brazil: On May 30, 2004, prisoners at the Benfica prison in Rio de Janeiro rioted and took 26 prison guards and employees hostage. Fourteen prisoners then escaped from the prison. Television news stations showed prisoners breaking holes in the wall of the prison while others shot at police, injuring four police. Prison officials claimed they recaptured three of the escaped prisoners. When the riot ended on June 1, police found at least 30 dead prisoners, many of whose bodies were burned, mutilated and decapitated. At least one guard was killed. Prisoners released their hostages after prison officials agreed to separate rival gang members. The mediation was handled by Marcos Pereira da Silva, a popular prison minister.


California: In June, 2004, Kris Pleschner, 18, sued Sacramento superior court judge Michael Kenny for lying to his supermarket employer by claiming Pleschner was a convicted sex offender which led to his firing. Pleschner pleaded guilty to a misdemeanor ...

Common Fund Required for Incentive Award

The Sixth Circuit Court of Appeals
held a named class representative may not receive an incentive award unless a common fund is established. Prisoner C. Pepper Moore, who was named a class representative in 1988 in Hadix v. Johnson, which was a class action suit challenging conditions of confinement at the State Prison of Southern Michigan, filed a pro se motion seeking an incentive award and costs. In 1988 the district court awarded attorney fees to the class' counsel, and it largely terminated the consent decree in 2001, which was entered in 1985 and did not award damages, incentive awards, or costs to any of the individual plaintiffs. The district court denied Moore's motion, and he appealed.


Incentive awards are typically awards to class representatives for their often-extensive involvement with a lawsuit. However, the Sixth Circuit held an incentive award cannot be awarded unless a common fund exists. A common fund exists when class action litigation has created a communal pool of funds to be distributed to the class members. Although Moore was a class representative who had extensive involvement in the case, he could not receive an incentive award because no common fund was created by the consent ...

 

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