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Prison Legal News: August, 2004

Issue PDF
Volume 15, Number 8

In this issue:

  1. The Complicity of Judges in Wrongful Convictions (p 1)
  2. Washington Persistent Prison Misbehavior Statute Upheld (p 9)
  3. Exporting the American Way of Crime (p 10)
  4. Federal DNA Statute Not Challengeable in Criminal Appeal (p 12)
  5. From the Editor (p 12)
  6. Texas Boot Camp Denied Immunity for Ignoring Serious Medical Needs (p 13)
  7. Habeas Hints (p 14)
  8. Montana BMPs Are Cruel and Unusual Punishment (p 16)
  9. Former Texas Prison Guard Awarded $275,000 in Race Discrimination Suit (p 18)
  10. Illinois Appeals Court Overturns Warden's Reckless Homicide Convictions (p 18)
  11. Local Officials Tell Prisoners: "You don't live here" (p 19)
  12. CCA Medical Contract Doesn't Violate 8th Amendment (p 20)
  13. No Qualified Immunity for Florida Jail Guards in Prisoner Murder (p 20)
  14. New Jersey Civil Commitment Hearings Secret, Biased (p 21)
  15. Rape of Women Prisoners Rampant in Ohio (p 22)
  16. Facts Contained in Administrative Remedies Not Automatically Deemed Facts Alleged in Complaints (p 23)
  17. Executions Rose in 2002; Texas Led in Number of Deaths (p 24)
  18. California Prison Guards Organize to Sue Assaultive Prisoners (p 24)
  19. No Qualified Immunity for Prison Officials on Tobacco Smoke Complaints (p 26)
  20. Florida's Felon Disenfranchisement Law Under Spotlight (p 27)
  21. California Guard's Obscene Behavior Towards Prisoner Is Actionable (p 28)
  22. California No-Parole-Policy Suits For Damages And Injunctive Relief Fail (p 28)
  23. Denial of Dentures States Eighth Amendment Claim (p 29)
  24. Ohio Supreme Court Holds Some Sex Predators Not Required to Register (p 30)
  25. Permanent Injunction Against California Book Ordering Restrictions Affirmed (p 30)
  26. Georgia Sheriff as "Arm of the State" Entitled to Eleventh Amendment Immunity (p 31)
  27. Washington Court Establishes Procedures for Community Placement Violation Hearings (p 32)
  28. Tenth Circuit Holds Prisoner Has Burden Under PLRA To Plead Administrative Exhaustion (p 33)
  29. Hearsay Testimony of Prison Officials Found Inadmissible in Criminal Prosecution and Probation Revocation (p 34)
  30. Mailbox Rule Applied To Administrative Forfeiture Proceeding (p 35)
  31. California Credit Restoration Denial Ruled Ex Post Facto (p 36)
  32. Mentally Ill Texas Prisoner Not Entitled to Hepatitis Treatment (p 36)
  33. Tennessee: Staph Outbreak, Delayed Treatment, Death Highlight Prison Healthcare Problems (p 37)
  34. Two Courts Interpret Provisions of Federal Appellate Rule 4; Prisoner Appeals Dismissed as Untimely (p 38)
  35. 2004 Supplement to the California State Prisoners Handbook (p 38)
  36. PLRA Indigency Provision Inapplicable When Filing Fee Paid (p 39)
  37. No Qualified Immunity in Jail Suicide Attempt (p 39)
  38. Washington Agencies Must Explain Reasons for Denying Public Disclosure Requests (p 40)
  39. Intentional Delay to Prevent Prisoner's Suicide Precludes Qualified Immunity (p 40)
  40. News in Brief (p 42)
  41. Virginia SCC Without Jurisdiction to Hear Prisoner Phone Rate Challenge (p 44)

The Complicity of Judges in Wrongful Convictions

The Complicity of Judges In Wrongful Convictions

by Hans Sherrer


I. Introduction


Wrongful convictions do not occur in a vacuum of judicial indifference. Every wrongful conviction results from a deliberative process involving law enforcement investigators, prosecutors, and one or more trial level and appellate judges. Although prosecutors, police investigators, defense ...

Washington Persistent Prison Misbehavior Statute Upheld

Division II of the Washington State Court of Appeals (Division II) has upheld RCW 9.94.070. The statute makes persistent "serious" prison misbehavior a Class C felony. Joseph Simmons was a Washington State prisoner serving time at the McNeil Island Correction Center situated near Steilacoom, Washington. He had lost ...

Exporting the American Way of Crime

by Matthew T. Clarke


For well over two hundred years fol-lowing the founding of the United States, foreigners who committed crimes faced imprisonment, execution, fines, parole, and/or probation. Few were deported. Those that were deported were generally infamous criminals or political dissidents. The enactment of the Anti-terrorism and Effective ...

Federal DNA Statute Not Challengeable in Criminal Appeal

Federal DNA Statute Not Challengeable In Criminal Appeal


The U.S. Court of Appeals for the Fifth Circuit has held that 42 U.S.C. § 14135 et seq. (the Act) may not be challenged on a direct criminal appeal or habeas proceeding. The Act authorizes federal Bureau of Prisons (BOP ...

From the Editor

Welcome to another issue of PLN. With our June, 2004, issue we reached a milestone with our highest circulation yet of 4,006 subscribers on our mailing list. The past year has seen an ongoing effort by PLN to boost our circulation through inexpensive means of reaching new people who ...

Texas Boot Camp Denied Immunity for Ignoring Serious Medical Needs

Texas Boot Camp Denied Immunity
for Ignoring Serious Medical Needs


The U.S. Court of Appeals for the Fifth Circuit affirmed a district court's denial of official immunity for boot camp operators who were negligent and deliberately indifferent to a juvenile offender's serious medical needs.


John, a minor ...

Habeas Hints

by Kent Russell


This column is intended to provide "habeas hints" to prisoners who are considering or handling habeas corpus petitions as their own attorneys ("in pro per"). The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus ...

Montana BMPs Are Cruel and Unusual Punishment

The Montana Supreme Court held that the use of Behavior Modification Plans (BMPs) and the living conditions of A-Block (Max) at the Montana State Penitentiary (MSP) constituted "an affront to the inviolable right of human dignity possessed by [prisoners] and that such punishment constitutes cruel and unusual punishment when it ...

Former Texas Prison Guard Awarded $275,000 in Race Discrimination Suit

On November 6, 2003, a federal jury in Austin, Texas awarded a former prison guard $275,000 in his racial discrimination suit against the Texas Department of Criminal Justice after determining that his race was a substantial or motivating factor in his firing. The awarded consisted of $200,000 in ...

Illinois Appeals Court Overturns Warden's Reckless Homicide Convictions

Illinois Appeals Court Overturns Warden's
Reckless Homicide Convictions

by Matthew T. Clarke


Near midnight on the night of Octo-ber 14, 2000, a state-owned car driven by William Barham, Warden of the Shawnee Correctional Center, spun off a road and down an embankment, where its passenger side collided with a ...

Local Officials Tell Prisoners: "You don't live here"

Many prison town officials are quick to claim prisoners as residents when the Census Bureau comes to town, but prisoners report that this is the only time these officials are so welcoming.


The Census Bureau counts the nation's mostly urban prisoners as if they were residents of the prison ...

CCA Medical Contract Doesn't Violate 8th Amendment

The Sixth Circuit Court of Appeals has vacated an injunction holding a contract between Corrections Corporation of America (CCA) and a private doctor; Dr. Robert B. Coble, was unconstitutional. The contract at issue required Dr. Coble to, among other things, "determine the existence of medical emergencies" and reduce CCA's ...

No Qualified Immunity for Florida Jail Guards in Prisoner Murder

The U.S. Eleventh Circuit Court of Appeals, in a case involving a Florida pre-trial detainee's death at the hands of a mentally ill co-prisoner, affirmed denial of qualified immunity to two guards at the North Broward Detention Center (NBDC) in Ft. Lauderdale, but reversed denial of qualified immunity ...

New Jersey Civil Commitment Hearings Secret, Biased

The growing trend of keeping sex of-fenders confined even after they have completed their prison sentences has taken a bizarre turn for the worse in New Jersey, where civil commitment proceedings are held in secretthe records sealedand sex offenders are re-imprisoned with none of the safeguards of a criminal prosecution ...

Rape of Women Prisoners Rampant in Ohio

The sexual assault of female pris-oners at the Ohio Reformatory for Women (ORW) in Marysville, Ohio, is shockingly commonplace, according to a report by Stop Prisoner Rape (SPR) released on December 10, 2003. The 15-page report, titled The Sexual Abuse of Female Inmates in Ohio, details an environment in which ...

Facts Contained in Administrative Remedies Not Automatically Deemed Facts Alleged in Complaints

The Seventh Circuit Court of Apeals held the attachment of grievances to a complaint, for the purpose of demonstrating exhaustion of remedies, does not permit holding that the plaintiff vouches for the truth of the statements in the grievance unless those facts are used to state a claim.


Illinois prisoner ...

Executions Rose in 2002; Texas Led in Number of Deaths

In 2002, thirteen states in the United States of America executed 71 prisoners, with Texas killing the greatest number of them (33). California held the most prisoners on death row at year end 2002 (640), followed by Texas (450), Florida (366), and Pennsylvania (241). These and many other facts are ...

California Prison Guards Organize to Sue Assaultive Prisoners

California Prison Guards Organize To Sue Assaultive Prisoners


In a classic case of "man bites dog," California state prison guards have begun a program to sue prisoners whom they allege assaulted them. To prosecute these suits, 2,900 guards have organized the dues-paying California Staff Assault Task Force (CSATF). Separately ...

No Qualified Immunity for Prison Officials on Tobacco Smoke Complaints

No Qualified Immunity for Prison Officials
on Tobacco Smoke Complaints


The U.S. Court of Appeals for the Third Circuit affirmed a district court's denial of summary judgment and qualified immunity for the Delaware prison guards who exposed a prisoner to environmental tobacco smoke (ETS) and retaliated against him ...

Florida's Felon Disenfranchisement Law Under Spotlight

by David M. Reutter


Since the 2000 presidential election, Florida's voting laws have been under scrutiny. One of the issues being debated is Florida's constitutional provision that permanently disenfranchises felons.


When Florida gave blacks the right to vote as a condition of the state being readmitted to the ...

California Guard's Obscene Behavior Towards Prisoner Is Actionable

The Ninth Circuit U.S. Court of Ap-peals permitted a prisoner's damage suit for retaliation by guards whom he had grieved to proceed based on First Amendment grounds.


Samuel Austin, incarcerated at California State Prison, Solano, was in the psychiatric housing unit when guard James Williams allegedly psychologically assaulted ...

California No-Parole-Policy Suits For Damages And Injunctive Relief Fail

California No-Parole-Policy Suits For Damages
And Injunctive Relief Fail

by John E. Dannenberg


The Ninth Circuit U.S. Court of Ap-peals affirmed the district court's dismissal of suits attacking an alleged unconstitutional no-parole policy that had been brought by California life prisoners against the Board of Prison Terms (BPT ...

Denial of Dentures States Eighth Amendment Claim

The U.S. Court of Appeals for the Eleventh Circuit reversed a lower court's grant of summary judgment favoring an Alabama state prison dentist who did not timely furnish a prisoner with dentures.


When Dean Farrow arrived at Alabama's Easterling Correctional Facility in July 1999, he had only ...

Ohio Supreme Court Holds Some Sex Predators Not Required to Register

Ohio Supreme Court Holds Some Sex Predators
Not Required to Register


In a unanimous decision, the Ohio Su-preme Court ruled that some persons labeled as sexual predators cannot be required to register with law enforcement authorities.


Lawrence J. Taylor and Willie Wilson, both former Ohio prisoners, were separately convicted of ...

Permanent Injunction Against California Book Ordering Restrictions Affirmed

Permanent Injunction Against California Book
Ordering Restrictions Affirmed

by John E. Dannenberg


The Ninth Circuit U.S. Court of Ap-peals affirmed the district court's permanent injunction (PI) against a California Department of Corrections (CDC) policy at its supermax Pelican Bay State Prison (PBSP) wherein prison officials had refused to ...

Georgia Sheriff as "Arm of the State" Entitled to Eleventh Amendment Immunity

Ruling 6-5 en banc in a case of first impression, the Eleventh Circuit has found that Georgia sheriffs act as "arms of the state" and thus as state actors are entitled to Eleventh Amendment immunity from civil liability for money damages. This decision was limited only to the development and ...

Washington Court Establishes Procedures for Community Placement Violation Hearings

Washington Court Establishes Procedures for
Community Placement Violation Hearings


In two recent decisions, Division One of the Washington Court of Appeals set forth the procedures that trial courts must follow when conducting sentence modification hearings. A sentence modification hearing is conducted to determine whether a person on community placement has ...

Tenth Circuit Holds Prisoner Has Burden Under PLRA To Plead Administrative Exhaustion

Tenth Circuit Holds Prisoner Has Burden Under PLRA
To Plead Administrative Exhaustion

by John E. Dannenberg


Parting company with six other circuits on the same question, the Tenth Circuit U.S. Court of Appeals held that the Prison Litigation Reform Act's (PLRA) administrative exhaustion requirement is not an affirmative ...

Hearsay Testimony of Prison Officials Found Inadmissible in Criminal Prosecution and Probation Revocation

Hearsay Testimony of Prison Officials Found Inadmissible
in Criminal Prosecution and Probation Revocation


The Third Circuit Court of Appeals held that prison officials' testimony in the prosecution of a prisoner was inadmissible hearsay and that it was not harmless error to admit that testimony.


On June 7, 2000, prison officials ...

Mailbox Rule Applied To Administrative Forfeiture Proceeding

Mailbox Rule Applied To Administrative
Forfeiture Proceeding

by Bob Williams


In a case of first impression, the Third Circuit has held that the mailbox rule applies to administrative forfeiture proceedings. The Court also held that the failure to apply the mailbox rule rendered the forfeiture voidable, rather than void, enhancing ...

California Credit Restoration Denial Ruled Ex Post Facto

by John E. Dannenberg


The U.S. District Court (E.D. Cal.) granted a writ of habeas corpus because it found the denial of earned restoration of a California state prisoner's disciplinary-based credit loss to be unconstitutionally retroactive. The Ninth Circuit U.S. Court of Appeals affirmed because the ...

Mentally Ill Texas Prisoner Not Entitled to Hepatitis Treatment

Mentally Ill Texas Prisoner Not Entitled To Hepatitis Treatment


In this unpublished decision by a three judge panel, the U.S. Fifth Circuit Court of Appeals held on March 19, 2004, that the failure of Texas prison officials to treat a mentally ill prisoner's hepatitis B and C with ...

Tennessee: Staph Outbreak, Delayed Treatment, Death Highlight Prison Healthcare Problems

An outbreak of staph infection, the delayed treatment of a brain tumor, and a preventable heart attack are just a few of the problems Tennessee prisoners have faced while in the care of private contractors.


In September 2003, three unidentified prisoners were infected with the Staphylococcus bacteria at the Silverdale ...

Two Courts Interpret Provisions of Federal Appellate Rule 4; Prisoner Appeals Dismissed as Untimely

Two different federal circuit appeals courts have interpreted provisions of Federal Rule of Appellate Procedure 4, which relates to the filing of notices of appeal. Both courts held the prisoners failed to comply with the rule and dismissed the appeals.


First, Delaware state prisoner Samuel T. Poole filed a civil ...

2004 Supplement to the California State Prisoners Handbook

2004 Supplement to the California
State Prisoners Handbook

by Fama, McKay, Snedecker, Smith and the

Prison Law Office, 230 pp.

Reviewed by John E. Dannenberg


A 230 page Supplement to The California State Prisoners Handbook has been released, bringing this bible for California state prisoners current as of September 1 ...

PLRA Indigency Provision Inapplicable When Filing Fee Paid

The Eleventh Circuit Court of Ap-peals held the In Forma Pauperis (IFP) provision of the Prison Litigation Reform Act (PLRA) cannot be used to dismiss a case when the plaintiff pays the filing fee. Thomas R. Farese, a federal prisoner, filed two lawsuits: a civil rights case and a Racketeer ...

No Qualified Immunity in Jail Suicide Attempt

The Seventh Circuit Court of Appeals affirmed the denial of qualified immunity to a police officer on a claim of deliberate indifference to an Illinois pretrial detainee's suicide risk.


On June 4, 1998, Steven Cavalieri kidnapped his former girlfriend, Stephanie Rouse, and using a gun, threatened to kill Rouse ...

Washington Agencies Must Explain Reasons for Denying Public Disclosure Requests

Washington Agencies Must Explain Reasons for
Denying Public Disclosure Requests


Division II of the Washington State Court of Appeals has reversed a trial court's dismissal of an action challenging the state Department of Corrections' (DOC) denial of a request for disclosure of public documents under the state Public Disclosure ...

Intentional Delay to Prevent Prisoner's Suicide Precludes Qualified Immunity

Intentional Delay to Prevent Prisoner's Suicide
Precludes Qualified Immunity


The Eighth Circuit Court of Appeals
held a guard's delay to prevent a prisoner's suicide is deliberate indifference to serious medical needs. This action was brought by the mother of South Dakota State Penitentiary (SDSP) prisoner Jeremy Gacek ...

News in Brief

Argentina: In May, 2004, army Lt. Colonel Guillermo Bruno Laborda, 50, was arrested after he complained about not being promoted to full colonel. In his letter of complaint, Laborda gave details of personally murdering political prisoners on orders from his superiors and setting their bodies on fire, including shooting a ...

Virginia SCC Without Jurisdiction to Hear Prisoner Phone Rate Challenge

Virginia SCC Without Jurisdiction to Hear
Prisoner Phone Rate Challenge


The Virginia Supreme Court, in an un-published opinion, has held the State Corporation Commission (SCC) does not have jurisdiction to hear challenge to prisoner phone rates. Virginia Department of Corrections (VDOC) prisoner Robert E. Lee Jones, Jr., filed a complaint ...