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Prisoner Education Guide

Prison Legal News: August, 2004

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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 lawyers and lab technicians have all been lambasted in books and magazines for their contribution to wrongful convictions, judges have, by and large, been given a free pass. This hands-off attitude may be due to the fact that sitting in their elevated positions, judges are often thought of by lay people and portrayed by the news and other broadcast media, as impartial, apolitical men and women who possess great intelligence, wisdom, and compassion, and are concerned with ensuring that justice prevails in every case. Reality, however, is far different from that idealistic vision.

In Courts on Trial: Myth and Reality in American Justice, one of the few serious critiques of this country's judiciary by an insider, Federal Judge Jerome Frank wrote, "Our courts are an immensely important part of our government. In a democracy, no portion of government should be a mystery. But what may be called "court-house government ...

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 all his good time to prison disciplinary sanctions. In December, 2001, with one month remaining on his sentence, Simmons damaged a fire sprinkler in his cell, flooding it and adjoining areas. He was convicted of a Class C felony under the statute and appealed.

Simmons' main argument was that RCW 9.94.070 amounted to an unconstitutional delegation of authority to the Department of Corrections (DOC); citing State v. Brown, 95 Wn.App. 952, 977 P.2d 1242 (.1999).; affirmed at 142 Wn.2d 57, 11 P.3d 818 (2000). In Brown Division III of the Court of Appeals found the statute to be an unconstitutional delegation of power to the DOC and held prisoners could not be prosecuted under an invalid statute. The state Supreme Court affirmed but on different grounds. The Supreme Court affirmed because the DOC had not promulgated regulations identifying what infractions would be "serious" for ...

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 Death Penalty Act (AEDPA) in 1996 ushered in a new reality for what the government terms criminal aliens. Since AEDPA's enactment, more than a half million people have been deported under its provisions, most for non-violent offenses. Deportees include those convicted of offenses such as drug possession, car theft, prostitution, and driving while intoxicated, crimes having nothing to do with terrorism.

Many of the deportees have but a fleeting connection to their countries of birth, having immigrated to the U.S. as children. According to the Azores, the only country keeping such statistics, 71% of its arriving deportees emigrated to the U.S. before the age of 13. Another 8% emigrated as teens. Many of the deportees cannot speak the native language and have no close relatives in the country. Such deportees, newly arrived back in a country foreign to them, generally face one of two fates: one bad ...

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) personnel to collect DNA samples from certain federal prisoners.

James Carmichael and Gabriel Collins are federal prisoners serving time for bank robbery and aiding and abetting the same. Their judgments and sentences directed them to provide DNA samples to BOP officials, either while incarcerated or on post-release supervision, pursuant to the Act. Both of the prisoners appealed, contending that the Act authorized searches and seizures beyond those allowed by the 4th Amendment to the U.S. Constitution.

The Fifth Circuit first held that the Act imposed a condition of confinement, rather than prescribed a part of their sentences. Thus, any DNA seizures while they were incarcerated could not be challenged in a criminal appeal. Instead, any such challenge must come in a civil action challenging the conditions of Carmichael's and Collins's confinement.

As regards the possibility that Carmichael and Collins may be subjected to an improper DNA seizure ...

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 may be interested in our message and the information we provide.

This has included sending copies of PLN to various Books to Prisoners programs around the country for them to distribute to those who contact them seeking legal information. We have also been able to send bundles of PLN to prison law libraries in various parts of the country as well as distributing PLN at meetings and gatherings of activists and other people concerned about prison reform.

Coupled with our new size of 48 pages, we are now bringing more detention facility news and information to more people than ever before. As a quick sampling of this issue shows, no other publication brings the focus and depth of coverage to prison and jail issues that PLN does. I am grateful to those readers who continue to send us news clippings and other information about the criminal justice system as it ...

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, stole a candy bar. A Harrison County (Texas) justice of the peace found John guilty and sentenced him to 3 months' probation, a $30 fine, and one day at the Strength Through Academics and Respect (STAR) boot camp.

At 5:30 a.m. on June 26, 1999, John's parents dropped him off at the STAR boot camp on the grounds of a local high school. In the morning, John and the other children were required to perform military-style exercises carrying a rucksack weighing between 57 and 70 pounds. Campers were threatened with jail time if they did not comply with the exercise regimen.

During the afternoon march, John complained of feeling sick but was ordered to continue. He collapsed several times and was taken to the school building. John began vomiting and became unconscious at 3:00 p.m. Boot camp operators called an ambulance at 4:42 p ...

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 practice throughout the U.S.


2004 TERM

During the 2004 term, there were two U.S. Supreme Court decisions which significantly expanded the rights of criminal defendants by broadly interpreting the Sixth Amendment guarantees to the right of Confrontation and the right to a jury trial. In this column I discuss these two cases, Crawford v. Washington, 124 S.Ct. 1354 (2004) and Blakely v. Washington, 124 S. Ct. 1493 (2004), and provide some Habeas Hints for petitioners attempting to use the decisions to their advantage on habeas corpus.

Crawford v. Washington

Crawford held that "testimonial hearsay" cannot be introduced at a defendant's trial if the defendant did not have a prior opportunity to cross-examine the person making the statement.

In Crawford, a defendant was tried for attempted murder. The police had taken a tape-recorded statement from the defendant's wife, Sylvia, in which Sylvia related ...

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 exacerbates the [prisoners'] mental health condition."

In 1995, Mark Walker was convicted in Montana of negligent arson and felony forgery. The trial court sentenced Walker to the Department of Corrections (DOC) for five years, but suspended the entire term and placed Walker on probation. Walker violated his probationary terms and the State moved to revoke the suspended sentence.

While the revocation proceedings were pending, Walker absconded. He was later arrested on criminal charges in Colorado. He remained confined in Colorado until being extradited to Montana on November 6, 1998.

At the time Walker committed the Montana Offenses, in 1994; he "had been diagnosed with Attention Deficit Hyperactive Disorder (ADHD)" and "was taking Ritalin." While confined in Colorado, Walker "was diagnosed with Hebephrenic Schizophrenic Disorder. That diagnosis was later changed to Bipolar Disorder." The Colorado DOC prescribed various medications to treat Walker's mental disorder, including "300 milligrams of Lithium three ...

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 tree. Jerry Isom, another Illinois Department of Corrections (DOC) employee, was fatally injured.

Prior to the accident, Barham and Isom had driven the DOC Director to a fund raiser at Southeastern Illinois College and to an airport. They then joined other DOC employees at a bar. Barham admitted to drinking about two beers. Other DOC employees agreed. Bar employees put the number he ordered at 8 or 9. A serum blood alcohol test performed on a sample taken at least 2 hours after the wreck indicated a blood alcohol level of between 0.088 and 0.077 g/d13 at that time according to the state's expert, a woman with a degree in zoology who was certified to conduct alcohol and drug testing on biological samples and who had completed the Illinois State Police toxicology training program and advanced courses in biology and chemistry. A blood alcohol test taken ...

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 town. When the Census' only purpose was to count the total population of each state for purposes of apportioning Congress, this procedure might have made sense. Today, when this data is used for state legislative redistricting, the method is an outdated relic that distorts the size of communities within the same state. Previous articles in PLN have discussed the theoretical rationale for defining residence based on the place you willingly choose to be and argued that since prisoners are moved to prison against their will, their residence is unchanged. In prior columns, Ive noted that most states have constitutional clauses and statutes that define residence for electoral purposes as to exclude prisons.

This article explores how communities with prisons conceive of prisoner residence. In the cases where the Census Bureau erred and placed the prison in the wrong rural town, the town with the prison frequently complained. But outside of ...

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 medical costs at Tennessee's South Central Correctional Center (SCCC). If Dr. Coble reduced medical costs, he received monetary incentives.

After SCCC prisoner Anthony Bowman died of complications from sickle cell anemia on January 5, 1996, his mother, Patricia Bowman, sued under 42 U.S.C. § 1983, alleging the contract constituted deliberate indifference to Anthony's serious medical needs. The evidence showed that despite SCCC's prison population increasing by 200 prisoners, Dr. Coble reduced CCA's medical cost per prisoner per day from above $3.07 to as little as $1.46. A jury entered a verdict for the defendants. The Tennessee district court, however, held the contract was unconstitutional, entered injunctive relief to prevent carrying out the contract, and awarded Bowman attorney fees for prevailing on this issue. See: Bowman v. Corrections Corp. of America, 188 F. Supp. 2d 870 [PLN July 2001, pg. 10]. Both parties appealed ...

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 to four jail supervisors.

Following a fight with his father and involuntary hospitalization, Peter Cottone, Jr., was jailed in the NBDC's Unit 1, which houses mentally ill prisoners, on March 14, 1999. On March 1, 1999, Widnel Charles, a schizophrenia patient with known violent tendencies, assaulted a fellow prisoner while being booked at the Broward County Jail. On March 6, 1999, Charles was transferred to NBDC. On April 1, 1999, a staff psychiatrist determined Charles was stable, reduced his psychotropic medication, and on April 6, 1999, transferred Charles to Unit 1 with Cottone and Albert St. Hubert.

Unit 1 had three cells, with one prisoner per cell, but the doors were not locked. On April 7, 1999, Charles, in the midst of a schizophrenic episode, entered Cottone's cell, assaulted him, and strangled him with shoelaces, killing him. Although surveillance cameras covered the three cells, guards Joseph D'Elia ...

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.

In recent years a number of states have enacted laws allowing the perpetual imprisonment of sex offenders through a civil commitment process. Through these proceedings, those deemed a threat to public safety can be held indefinitely.

Currently 16 states have civil commitment laws on the books, including New Jersey, which in 1998 passed the Sexually Violent Predator Act. Under the SVPA, any prisoner who has ever been convicted of a sex crime and is found to have a "mental abnormality or personality disorder" making him or her likely (or thought to be likely) to re-offend, can be involuntarily committed.

Candidates for commitment in New Jersey are identified by the Department of Corrections (DOC) shortly before they are to be released. The attorney general's office then screens the cases and pursues commitment for about 45% of those referred, said assistant attorney general Barbara Waugh, who supervises the cases.

According to ...

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 male prison employees routinely harass, abuse, and attack female prisoners with virtual impunity, and where women reporting sexual abuse are isolated in solitary confinement, a.k.a "the hole."

SPR's investigation into the abuses at ORW was aided by the allegations of three former ORW employees: Tim Daniell, 49, program coordinator for ORW's Intensive Prison Program, a rigorous boot camp-style program; prison guard Mike Coffee, 47; and health care administrator Traci Douglass-Coffee, 40.

Daniell began working at the prison in 1988. Realizing that a climate of abuse pervaded ORW and that the administration was doing nothing to curb it, Daniell contacted the Inspector General's Office, the Ohio Attorney General, and the Ohio Highway Patrolnone of which took any action, according to Daniell. His attempted whistle-blowing was, however, acted on by prison authorities who investigated Daniell for improperly keeping records, even sealing his office with crime-scene tape. After ...

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 Ronnie Carroll brought a civil rights action alleging guards inflicted cruel and unusual punishment on him. The guards moved for dismissal on grounds Carroll failed to exhaust administrative remedies by failing to appear before the Administrative Review Board (ARB). The district court agreed. In granting the guards' motion, the court held Carroll failed to present any evidence that he was unaware of the ARB hearing, and he received a copy of the ARB's meeting minutes that said he failed to appear and his grievance was considered moot.

The Seventh Circuit found Carroll presented evidence in the form of his affidavit, which was better than the guard's hearsay statement that Carroll "refused" to appear. The district court was obligated to accept Carroll unrefuted testimony that he had never been required to appear for his last 75 grievances. Moreover, denial on mootness grounds is deemed denial of the merits, and ...

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 contained in the November 2003 report by the Bureau of Justice Statistics (BJS) report entitled Capital Punishment, 2002.

In the United States, twelve states and the District of Columbia have no death penalty. The Federal government and the states with a death penalty held 3,557 prisoners on death row at yearend 2002. Thirteen states California, Texas, Florida, Pennsylvania, North Carolina, Ohio, Alabama, Illinois, Arizona, Georgia, Oklahoma, Tennessee, and Louisiana held 2,957 (83% of the total) condemned prisoners. The remaining death row prisoners were spread out among the other jurisdictions. The Federal government held 24 people for execution. New Hampshire, a death penalty state, had no one on death row in 2002.

Contrary to most of the rest of the world, sixteen states specifically authorize the execution of juveniles. Seven states set no minimum age for imposing a death sentence.

Four states allow execution of offenders as young as ...

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, Lisa Northam founded the 2,300 member "non-profit" [$10/mo. dues] California Correctional Crime Victims Coalition (CCCVC, P.O.B. 894, El Centro, California 92244), to bring more suits. The guards' union (CCPOA) and the Department of Corrections (CDC) declined comment on the new strategy.

Dissatisfied with the prison disciplinary system, guards are targeting assets of prisoners outside of prison _ or, in the case of "poor inmates," whatever possessions they have on the inside, such as TVs, hot plates and prison trust accounts. "It's not about the money," said Lancaster State Prison Lt. Charles Hughes on the CSATF website, "it's about holding these convicted felons accountable for their actions. It may be small potatoes to you and me, but ask an inmate if he wants you to own his trust account." The CSATF claims the suits are necessary to "restore a balance of power that has tilted ...

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 when he filed a lawsuit seeking relief.

Roger Atkinson, a blind, diabetic prisoner at Delaware's Multi-Purpose Criminal Justice Facility (MPCJF), was housed with other prisoners who were moderate to heavy smokers. After complaining to MPCJF medical staff about exposure to ETS, he was moved to a smoke-free housing area. Inexplicably, Fred Way, a prison guard, had Atkinson moved back to a smoking environment.

Claiming that MPCJF officials violated his Eighth Amendment rights by exposing him to ETS, Atkinson filed suit in U.S. District Court under 42 U.S.C. § 1983.

Atkinson raised two separate complaints growing from his exposure to ETS. First, a present injury complaint that the defendants were deliberately indifferent to his existing medical needs caused by ETS. Second, a future injury complaint that prison officials exposed him, with deliberate indifference, to levels of ETS that posed an unreasonable risk of potential harm to his future ...

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 Union after the Civil War, the 1868 State Constitution expanded the number of crimes that required disenfranchisement.

Before the 2000 election, the Brennan Center for Justice at New York University filed a lawsuit seeking to overturn the disenfranchisement law. The suit contends that, despite inclusion in the State's 1868 Constitution, the ban has a discriminatory intent to affect blacks. Another lawsuit filed by the Florida Conference of Black Legislators led to a court orders requiring the Florida Department of Corrections to assist 125,000 felons, who had finished their sentences, apply for their voting rights. [Editor's Note: In mid July, 2004, a state appeals court reinstated portions of the suit. PLN will report he ruling in an upcoming issue.]

A 2001 report by a University of Minnesota sociologist counted more than 600,000 disenfranchised felons in Florida, not including those still in prison, on probation, or on parole ...

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 him. When Williams had announced unit lockup, Austin protested that cell doors should be left open because of the heat. Austin alleges that Williams retorted by calling Austin a "punk bitch" and a "mother fucker" further telling Austin that he (Williams) was going to "come down out of this control booth and kick your ass." Then, while still in the control booth, Williams allegedly unzipped his pants, exposing himself to Austin (an African-American), and said "come suck this white dick, boy" while shaking his penis at Austin for 30 _ 40 seconds.

Austin attempted to report the incident, but other guards on duty ignored his complaints. Williams later apologized to Austin for his conduct and asked Austin not to report the incident. When, a supervisor inquired of Williams later, Williams allegedly lied and accused Austin of misconduct. Austin went to the hole for six weeks. His administrative appeal was denied ...

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), the governor and other state officials seeking damages and declaratory/injunctive relief.

Carl McQuillion, convicted of multiple murders in 1973 and released on a federal habeas corpus writ in 2003 (see: PLN, March, 2004, p.28), had sued the BPT, California's governor(s) and other state officials for damages for their complicity in a purported scheme to deny parole to all murderers. However, McQuillion ultimately lost out because he untimely sued (twice) before gaining the prerequisite habeas relief.

In 1994, McQuillion suffered a rescission of his then 15-year extant parole date. He sued just the BPT for damages and declaratory/injunctive relief in U.S. District Court (E.D. Cal.) in a 42 U.S.C. § 1983 action claiming his rescission was the product of a new, unwritten no-parole policy. (See, e.g., PLN, April, 2000, p.1 California's No-Parole Policy.) Damages were denied in March, 1996 because ...

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 two lower teeth. He repeatedly requested dental care. On October 19, 1999, Dr. Marvin West, a prison dentist employed by Correctional Medical Services Inc, examined Farrow who complained that it was difficult to eat, that his two lower teeth sliced into his upper gums causing bleeding, soreness, and swelling, and that he'd lost 20 pounds over 3 months. During that October visit, Dr West prescribed a full upper denture and a partial lower denture.

The following month during his appointment with Dr. West, Farrow complained that he was tired of waiting for his false teeth. Farrow's remark apparently angered Dr. West who refused to see Farrow again until July 2000 when he told Farrow that he would send for him when his dentures were ready.

Thereafter, Farrow repeatedly complained of pain and bleeding gums and alleged that nurse Linda Shipman ordered her staff to withhold dental care from ...

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 sex crimes in the 1970's, incarcerated, and later released from prison. Some time later, both men were convicted separately in Cuyahoga County, Ohio, of non-sexual offenses. While incarcerated on these later offenses, a new version of Ohio Revised Code (R.C.) Chapter 2950, Ohio's version of "Megan's Law", took effect on July 1, 1997. Two different Courts of Common Pleas in Cuyahoga County determined that, based on their prior sex offense convictions, Taylor and Wilson were sexual predators required to register with law enforcement authorities.

Both men appealed the determinations. The Ohio Eighth District Court of Appeals reversed the lower courts' determinations. The appeals court relied on the plain language of R.C. § 2950.04 and State v. Bellman, 86 Ohio St.3d 208, 714 N.E.2d 381 (1999) to hold that they were not required to register with authorities as sexual predators. The Ohio Supreme ...

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 let prisoners receive books and magazines they had properly ordered from approved vendors (including Prison Legal News) solely because the vendor had affixed its own address label _ not a special prison-supplied label _ to the package. Significantly, the Ninth Circuit's affirmation relied heavily upon its First Amendment prison-regulation precedent developed in Prison Legal News v. Cook, 238 F.3d 1145 (9'h Cir. 2001).

PBSP prisoner Todd Ashker had sued prison officials under 42 U.S.C. § 1983 alleging that their restrictive vendor package-labeling policy (which applied solely to books, whereas shipments of shoes, thermals and approved appliances required no such special label) impinged upon his First Amendment rights because either the prison stopped non-compliant packages or the vendor refused to deal with prisons as a result _ thus denying him reasonable access to the media. The U.S. District Court (N.D. CA) granted Ashker summary judgment ...

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 implementation of use-of-force policies. Willie Manders was arrested in May of 1997 by City of Homerville police officers. He was charged with felony obstruction of an officer for punching an officer and was transported to the Clinch County jail. A city police officer and a jail guard beat Manders about the head, neck and face and banged his head against a wall. Manders' face was bruised and swollen. (The beating also affected him emotionally, resulting in a mental hospital stay some time later.) The next day, Manders was forced to write a statement to the effect that "they had to be rough with me to let me know they mean business." He was then released.

Manders filed a § 1983 complaint against sheriff Winston Peterson for excessive force resulting from the sheriff's use of force policy at the jail, his failure to train and discipline his deputies within that policy ...

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 violated the conditions of his or her release. If violations are proven, the person may be confined for up to 60 days for each condition breached.

In the first case, Khatib Rahmaan was accused of violating his conditions of release by not reporting to his community corrections officer (CCO) on the days he was not scheduled to work for a temporary job placement agency. At the sentence modification hearing, the CCO testified that he had spoken to Abd-Rahmaan's supervisor and determined that Abd-Rahmaan had failed to report on at least five different days on which he had not worked. Abd-Rahmaan objected to this testimony as inadmissible hearsay, but the trial court overruled the objection and, sanctioned Abd-Rahmaan to 60 days confinement.

On appeal, Abd-Rahmaan argued that he was entitled to the minimum due process protections set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), during his sentence ...

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 defense, but must be pled by the prisoner. It further held that the PLRA exhaustion requirement applies to Bivens claims.

Pro per federal prisoner Victor Steele sued the Federal Bureau of Prisons (BOP), Warden Holt and other officials of the United States Penitentiary (Florence, Colorado) for loss of personal property from his cell when he was temporarily being held in a special housing unit. He sought recovery of his $247.10 claim in a Bivens action, 42 U.S.C. § 1997e(a,c) and via an administrative tort claim [The Tenth Circuit liberally construed this claim as one under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.] BOP defendants argued that under the PLRA, Steele was required to have exhausted his administrative remedies before filing in court. Here, the novel situation was that although Steele had filed a tort claim, he had not attempted an administrative ...

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 at the Federal Correctional Institution Schuylkill, in Minersville, Pennsylvania, received information that prisoner Albert Lopez was in possession of heroin. "Based on that information, prison officials conducted a search of Lopez's cell, during which they recovered twenty small packets of heroin from inside a sock, which was inside a laundry bag located on the floor near Lopez's bunk. A drug screen submitted by Lopez later that day tested positive for morphine, which is consistent with, though not conclusive of, the use of heroin."

The matter was referred to the FBI. On June 12, 2000, a federal agent read Lopez his Miranda rights and Lopez refused to speak with him. A grand jury indicted him for possession of heroin and contraband. After a two-day trial, Lopez was convicted of both counts and sentenced to 37 months imprisonment, and two years of supervised release.

On appeal, the court agreed with ...

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 the split in the circuits. The Court applied the doctrine of equitable tolling to allow government re-filing.

After his arrest on drug-related charges, the FBI seized William Longenette's 1985 Dodge van under the Controlled Substances Act, 21 U.S.C. § 881. Administrative forfeiture proceedings were initiated on March 27, 1992, giving Longenette until May 12, 1992, to contest the forfeiture. The notice was sent to the wrong prison. Longenette wrote a letter to the FBI claiming ownership of the van on April 16, 1992, and, unable to post bond, claimed in forma pauperis (IFP) status. Meanwhile, Longenette's attorney had received notice and requested an IFP form for Longenette. On April 17, 1992, the FBI sent the form to Longenette and gave him until May 29, 1992, to "return" the form. Longenette mailed the completed form from prison on May 27, 1992, but it was not received until June ...

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 prison regulation disallowing such restoration had been enacted after the disciplinary offense was committed.

Joseph Scott Hunter began his 39 year determinate prison term in 1981 and was eligible to earn "good-time" credits. On February 22, 1996, Hunter was caught drinking "pruno" (a Division C serious rules violation) for which he was assessed 120 days loss of good-time credits. Under the then current prison regulations, he could earn restoration of one-half of those credits by remaining disciplinary-free for six months.

However, effective January 1, 1996, California Penal Code § 2933(c) (enabling those regulations) was amended to permit the Director of Corrections to promulgate new regulations restricting restoration. In April, 1996, the Director did so amending regulations 15 CCR §§ 3327 and 3328 to provide for no credit restoration against a Division C offense.

After Hunter had completed six months of "clean time,' he applied for his 50% restoration. Department of Corrections ...

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 interferon therapy did not constitute deliberate indifference nor did it violate the Americans With Disabilities Act (ADA).

Jimmy Roy Davidson, a Texas state prisoner who suffers from an unspecified psychiatric disorder, brought a pro se 42 U.S.C. § 1983 civil rights action against the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), its medical contractors and various medical personnel, alleging that their refusal to treat his hepatitis B and C with interferon therapy violated his constitutional rights.

The U.S. District Court for the Eastern District of Texas dismissed Davidson's claim as frivolous and he appealed. The Fifth Circuit affirmed.

According to the Fifth Circuit, "Prison officials violate the constitutional proscription against cruel and unusual punishment when they are deliberately indifferent to a prisoner's serious medical needs...." To support a claim of deliberate indifference a prisoner must show that "prison officials refused to treat him, ignored his ...

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 Workhouse, operated by Corrections Corporation of America (CCA). The outbreak prompted prison officials to relocate 200 prisoners to other housing areas and to institute a number of new hygeine measures.

County Mayor Claude Ramsey told commissioners on September 17, 2003, that the prison was being scrubbed and that protective measures had been put in place. These measures included requiring prisoners who lived in the same dorms as the infected prisoners to turn in all clothes, bed sheets, towels and personal hygiene items, including razors and soap.

Other prisoners were ordered to wash their hands frequently, store open food items in sealed plastic containers, have laundry and bedding sanitized, and to immediately report any skin lesions to prison officials. Readers should note that the Silverdale staph outbreak is part of a national epidemic. [See the November 2003 PLN].

Prisoners in the Lois DeBerry Special Needs Facility, a Tennessee prison hospital under ...

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 rights action alleging interference to access to his son by several public officials and private individuals. The Delaware federal district court dismissed, holding it had no personal jurisdiction over two defendants and the remaining claims were frivolous. That order was entered on March 26, 2002, and Poole deposited his notice of appeal in his prison's internal mail system 44 days later.

On appeal, Poole argued there was a delay in him receiving notice from the clerk regarding the order's entry due to his transfer to another prison, so his notice of appeal should be regarded as timely. Poole never formally advised the court or clerk of his address change. When the clerk's notice of the orders entry was returned due to the transfer, the clerk faxed the Department of Corrections an "address request." Poole finally received the court's order on May 6 and mailed his notice ...

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, 2003 changes in the law. Organized in the same chapter structure as the 1,000 page Third Edition of the Handbook [see PLN, Oct. `01, p.23], the 72 pages of text discuss the impact of 250 recent state and federal cases as well as changes in the California Department of Corrections' regulations. To be fully current, the Supplement includes select superior court references along with cases still pending appellate review. All of the new text is indexed five ways in a 19 page Table of Authorities, greatly enhancing the Supplement's research utility.

The balance of the Supplement contains revised forms, including 81 pages of updated federal court forms for habeas corpus (28 U.S.C. § 2254) and civil rights (42 U.S.C. § 1983) filings in each of California's four federal districts. For those seeking jobs, an updated eight page listing of Workforce Investment Act resource centers ...

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 Influenced and Corrupt Organization Act (RICO) case, which stem from prior business relationships and litigation with his business partner Harold Dude.

Upon filing the RICO case, Farese paid the filing fee. When he later filed the civil rights case, he sought IFP status. The Southern Florida District Court consolidated the two cases, and it determined that upon consolidation that Farese was preceding IFP in both cases despite the filing fee being paid in the RICO case. The Court then applied 28 U.S.C. § 1915(d) and held Farese's cases had no basis in law or fact, which required dismissal under the PLRA's IFP provision.

Farese appealed, contending the district court erred when it dismissed his fees-paid RICO case. The Eleventh Circuit said that § 1915 applied only in a suit where the prisoner proceeds without "prepayment of fees or security therefore."

The Court held that the consolidation of ...

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 and himself. Rouse was able to call Cavalieri's mother and his mother, in turn, called the Crisis Hotline. Rouse placed a call to the Crisis Hotline as well. The Crisis Hotline notified the City Police Department.

Cavalieri held the police at bay for several hours, during which time his mother advised a member of the hostage negotiation team that her son was suicidal and needed to go to a hospital.

At the City Jail Cavalieri met with officer Shepard and asked to speak with a mental health counselor. Shepard told him jail personnel would arrange for him to speak with someone.

Later, Shepard interviewed Rouse, who once again explained that Cavalieri threatened to kill her and commit suicide. She also told Shepard that Cavalieri said he would kill himself if ever returned to jail.

Shepard then interviewed Cavalieri's mother who expressed concerns about ensuring that her son see ...

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 Act (PDA), Chapter 42.17 RCW. The plaintiffs sued the DOC after it denied their request for documents without explaining why.

In July 2000, the DOC decided to establish the Community Justice Center (CJC) in Tacoma, Washington. Released prisoners would be required to periodically report there as a requirement of their post-incarceration supervision. Tacoma citizens requested from the DOC documents providing, among other things, the addresses of the ex-prisoners who would report to the CJC. The DOC provided some of the documents but refused to provide the ex-prisoners' addresses, without explaining why. The citizens sued, among other things, to compel disclosure of the addresses, but the Pierce County Superior Court dismissed the case in its entirety. The citizens appealed.

The appellate court recognized that the PDA requires agencies to make public documents available to those who request them, unless the documents fall within a specific exemption under RCW 42.17 ...

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 after he hanged himself. The district court granted summary judgment to eleven of the twelve defendants. The remaining defendant, guard Thomas Haughlin, appealed the denial of his qualified immunity defense.

While housed at the SDSP Special Housing Unit on March 4, 1998, Gacek requested his recreation period. After guards refused to fulfill that request, Gacek began engaging in behavior to bring the "goon squad" to his cell so he could get a shower. Gacek threatened to not return to his food tray, threw water on two guards, and kept a plastic spoon. When Gacek learned the goon squad was not coming, he told Haughlin he was going to "hang it up."

Gacek then got a pair of pants and made one end into a slipknot. He tied his door shut with a towel, and he told Haughlin that as soon as he walked away he was going to tie one ...

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 woman a day after she gave birth. Laborda said that during the U.S. backed military dictatorship of the 1970's and 80's these "were considered true and unavoidable acts of service" and it should be taken into account in promoting him after 28 years of faithful military service. Instead, he was arrested and charged with murder. Laborda noted that other officers who carried out the genocide were duly promoted. He claimed the killings traumatized him. "The continuous weeping, the very odor of adrenaline that comes from those who can feel their end coming, their desperate cries begging us that if we were really Christians we would swear we weren't going to kill them, was the most pathetic, agonizing and saddest thing I ever felt in my life and I will never forget it," he said. He also noted that a priest had absolved of the crimes and ...

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 with the SCC alleging that M.C.I. Telecommunications Corporation (MCI) charged excessive rates for telephone service in the Commonwealth's prisons. The SCC entered a Final Order in Jones' favor. MCI and VDOC appealed, arguing that Code §56-234 prevents the SCC from exercising jurisdiction over "contracts for services rendered by any telephone company to the state government."

§ 56-34 requires "every public utility to furnish reasonably adequate service and facilities at reasonable and just rates to any person, firm, or corporation" and that "[t]he charge for such service shall be at the lowest rate applicable with schedules filed with the [SCC] pursuant to §56-236." However, § 56-234 specifically exempted from this requirement "schedules of rates, or contracts for service rendered by any telephone company to the state government&"

The Court favored the "Inmate Telephone System contract is an agreement between MCI and a state agency." The fact prisoners and recipients ...


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