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Prisoner Education Guide

Prison Legal News: September, 2004

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Volume 15, Number 9

In this issue:

  1. Iraqi Dungeons and Torture Chambers Under New, American Trained Management (p 1)
  2. $10,000 Awarded in Colorado Magazine Confiscation (p 6)
  3. Former Ohio Parole Chief, Parole Attorney Alliance Raises Ethical Concerns (p 6)
  4. From the Editor (p 8)
  5. Settlement Brings Alabama DOC's Diabetic Treatment into 21st Century (p 9)
  6. Pro Se Tips and Tactics (p 10)
  7. World Court Rules Against U.S. for Consular Notification Failures (p 12)
  8. California Private Prison Uprisings Kill 2, Injure 66 (p 13)
  9. Report Faults Vermont Policies in Prisoner Deaths; Retaliation Precedes PLN Writer's Suicide (p 14)
  10. Captive Audience: Ohio Wants to Bring Prisoners to Jesus, the Law Be Damned (p 18)
  11. Four Prisoners Injured in Shooting at Washington D.C. Jail (p 21)
  12. The American Correctional Association  A Fraud on Texas Taxpayers (p 22)
  13. BOP Good Time Credits Must Be Calculated Against Sentence, Not Pro-Rated to Time Served (p 23)
  14. Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (p 24)
  15. U.S. Supreme Court: ADA Title II Implicates Due Process Right of Physical Access To The Courts (p 26)
  16. Texas Prisoners Have Right to Specific Notice of Mandatory Supervision Hearing (p 27)
  17. Manipulation of Crime Statistics and Use of Tax Dollars for Campaigning Revealed (p 28)
  18. New York State Prisoner Awarded $30,000 for Work Related Injuries (p 28)
  19. Austin, Texas, Settles Wrongful Conviction Suit for $9 Million (p 29)
  20. Idaho Incompetence Delays Prisoners' Release, Taxpayers Foot The Bill (p 30)
  21. California Prison Guard Union Scandal Goes Public (p 31)
  22. Prisoner Shot Dead by Guard in California Prison Riot (p 32)
  23. Supreme Court Justice Criticized Over No Recording Policy, Federal Agent's Actions (p 32)
  24. California Changes Policies for Prison Gangs and Security Housing Units (p 33)
  25. Survivors of Prisoner Killed in Texas County Jail Awarded $2,500,000 (p 34)
  26. Complaints Amended to Change John Doe Defendants' Names Don't Relate Back (p 34)
  27. Former Illinois Governor Indicted on Federal Charges (p 35)
  28. FTCA Claims for Sentence Miscalculation Accrues Upon Reversal; Statute of Limitations Tolled (p 35)
  29. $76,000 in Fees and Damages Awarded in Kansas Excessive Force Claim (p 36)
  30. Washington Jail Settles Conditions Lawsuit (p 38)
  31. Washington Jail Trustees Entitled to L&I Benefits (p 38)
  32. Prison AIDS Cases, Deaths Increase; HIV Infections Decrease (p 39)
  33. Administrative Remedies Deemed Unavailable Based on Physical Injury (p 39)
  34. Federal Halfway House Litigation (p 40)
  35. Prison Guards With Criminal Records Work in Texas Prison (p 41)
  36. News in Brief (p 42)

Iraqi Dungeons and Torture Chambers Under New, American Trained Management

Just a year ago, Attorney General John Ashcroft pointed to the Iraqi prison system as a shining example of the freedoms that the U.S. would bring to Iraq. He said, "Now, all Iraqis can taste liberty in their native land, and we will help make that freedom permanent by assisting them to establish an equitable criminal justice system, based on the rule of law and standards of basic human rights."

The rhetoric of law and justice was in full force after the fall of Saddam Hussein, but now in the wake of prisoner abuse at Abu Ghraib, the dicourse surrounding Iraqi prisons has become far removed from the self-congratulatory statements of Ashcroft. As U.S. credibility disentigrates in Iraq there is a public outcry to assign blame to those responsible for torture, rape and murder.

There are the obvious culprits: Secretary of Defense Donald Rumsfeld and his initiation of a special access program that encouraged harsher interrogations at Abu Ghraib, the government officials who pestered lawyers with questions on the legality of torture and the U.S. prison guards turned soldiers who let the dogs loose, literally and figuratively. But as the military continues to shift the blame up ...

$10,000 Awarded in Colorado Magazine Confiscation

A Denver Federal Judge has awarded $10,000 plus costs and attorney fees to a state prisoner whose sexually explicit magazines were confiscated for content reasons.

Michael Milligan, a prisoner in the Colorado Department of Corrections (CDOC), was transferred without warning from the medium security Fremont Correctional Facility (FCF) to ...

Former Ohio Parole Chief, Parole Attorney Alliance Raises Ethical Concerns

A business partnership between former head of the Ohio Parole Board, Margarette Ghee, and Ohio prisoner-turned-parole attorney, Derek Farmer, has raised ethical concerns in the legal and criminal justice communities.

After serving 18 years on a 1974 conviction of accessory to murder of a policeman, Farmer was paroled in 1992. With Ghee's help, he was granted admission to the University of Akron law school, and in November 1999, passed the Ohio bar exam. Farmer went to work for a Cincinnati law firm, but was soon forced to leave town because of unrelenting criticism from local police, prosecutors, and a common pleas judge.

Ghee, who supplied one of the votes granting Farmer parole, retired from the parole board on March 29, 2002. Although it is unclear exactly when, sometime in 2003 Farmer hired her to evaluate prisoners seeking parole for his Columbus law firm.

This partnership has drawn criticism from some. Boise State University prison law professor and ethical columnist for the journal of the American Probation and Parole Association, Craig Hemmens, says Farmer's assertion that Parole Board members still view Ghee as "the boss" fosters the belief that if prisoners hire the duo they are in effect buying ...

From the Editor

On August 7, 2004, I attended the memorial for PLN writer James Quigley. The memorial was held on the beach in Atlantic City, New Jersey. Jim died on October 7, 2003, when he hung himself in the segregation unit of the Northwest State Correctional Facility in St. Albans, Vermont. He was 53 years old at the time of his death. [See the January, 2004 issue of PLN for more details on Jim's life and accomplishments.]

This issue of PLN contains a summary of the report prepared by investigators looking into a rash of deaths in Vermont's tiny prison system. The report has been posted on PLN's website. After many years off reading similar reports I was surprised that the investigators, a private attorney in Vermont and a former attorney general from neighboring New Hampshire, stated clearly and unequivocally that Jim was retaliated against by prison officials and should not have been held in segregation and would not have been but for his activities as a jailhouse lawyer and activist. David Reutter, the PLN writer who reviewed the report was also a friend of Jim's.

The memorial was held at 7 AM on the beach where Jim ...

Settlement Brings Alabama DOC's Diabetic Treatment into 21st Century

by David M. Reutter

The Alabama Department of Corrections (ADOC) agreed on January 15, 2004, to settle a lawsuit brought by diabetic prisoners by upgrading their medical care. The agreement sets a precedent for management and care of diabetic prisoners that is a first in the nation.

An investigation in 2003 by the Southern Poverty Law Center's legal team revealed a shocking lack of basic care for diabetic prisoners within the ADOC. One diabetic had a series of seizure-like convulsions, but had never been evaluated by a prison doctor to determine the best way to control his blood sugar.

Prior to the lawsuit, an ADOC medical contractor failed to promptly diagnose prisoner with diabetes, adequately monitor blood sugar levels, treat injuries or infections, or administer necessary tests to evaluate whether the disease was causing other problems. That medical contractor, NaphCare, Inc., has since had its contract terminated. NaphCare's shameful history and treatment of ADOC prisoners was the subject of a PLN cover story. [PLN October 2003].

Due to this lack of care, some prisoners had toes amputated and experienced loss of vision and other serious injuries. They were also at a greater risk for kidney failure, heart attack ...

Pro Se Tips and Tactics

Before starting on my1 first, of many, pro se articles, I want to thank John Midgley on behalf of the hundreds, if not thousands, of prisoners that he has helped through these eight years. He has taken difficult legal concepts for even attorneys to understand and has, with his gift of words, made these issues understandable for all. John, you will be missed


My first article will cover the issue of proceedings in forma pauperis under the standard created by the Prison Litigation Reform Act (PLRA). It is my intent to walk you through the entire litigation process in these articles, e.g., from seeking in forma pauperis status, to seeking discovery, to holding a trial, to handling an appeal.

If prisoners can't afford to pay the filing fee and other litigation expenses, they can apply for permission to proceed in forma pauperis (IFP), which means "as a poor person."2 However, with the changes imposed by the Prison Litigation Reform Act (PLRA), there is no complete waiver of the filing fees and any costs, even for those who have no funds in their prison accounts when filing.3 If IFP is granted, the court will issue an ...

World Court Rules Against U.S. for Consular Notification Failures

by Matthew T. Clarke

On March 31, 2004, the International Court of Justice (also known as the World Court) held that the United States was in violation of the Vienna Convention on Consular Relations (VCCR).

The case was brought by Mexico on behalf of 52 of its nationals who are on various death rows throughout the United States awaiting execution. Mexico claimed that the U.S. was in violation of three paragraphs of Article 36 of the VCCR. Article 36 is entitled "Communications and contact with nationals of the sending state."

Paragraph 1(b) of Article 36 states that, if a national of the sending state "is arrested or committed to prison or to custody pending trial or is detained in any other manner," and so requests, the local consular post is to be notified. It also requires that officials of the receiving state "inform the person concerned without delay of his rights." In this case, it essentially required U.S. officials to inform arrested or otherwise detained Mexican nationals of their right to notify Mexican consular officials of their situation and, if the Mexican national requests it, to so notify the consular officials.

Paragraph 1(a) of Article 36 ...

California Private Prison Uprisings Kill 2, Injure 66

Interracial prison riots occurred on October 27 and December 3, 2003 in two southern California privately-contracted minimum security prisons. Because California private prison contractors have no weapons not even pepper spray the riots continued for up to 90 minutes until armed peace officers could arrive to restore order. In one prison, two prisoners were killed and 50 injured; in the other, 16 were injured.

At the desert Eagle Mountain Community Correctional Facility (CCF), Rodman Wallace, 39, serving two years for burglary, and Master Hampton, 34, doing 16 months for a drug offense, were stabbed and bludgeoned to death by other prisoners on the evening of October 27, 2003 in a recreation room while watching the World Series. What began as an altercation between whites and Hispanics erupted into an attack on black prisoners involving about 150 prisoners. Injuries to four prisoners required helicopter transfer to regional hospitals. Response teams of Riverside County Sheriff's deputies and California Department of Corrections (CDC) prison guards from two state prisons in Blythe (60 miles away) were called in to restore order.

Lt. Warren Montgomery of Chuckawalla Valley State Prison in Blythe said prisoners used knives and meat cleavers from the kitchen, along with ...

Report Faults Vermont Policies in Prisoner Deaths; Retaliation Precedes PLN Writer's Suicide

by David M. Reutter

An independent investigation into the deaths of seven prisoners concludes that Vermont Department of Corrections (VDOC) policies were partly to blame for some of the deaths. The deaths occurred between November 25, 2002, and October 7, 2003. After the suicide death of PLN contributing writer James Quigley, the Vermont Agency of Human Services retained Michael Marks, a Vermont lawyer, and Philip McLaughlin, a former New Hampshire attorney general, to address the issues those deaths appeared to implicate. Those issues included the provision of medical service, mental health service, and the grievance process.

The VDOC can accommodate up to 1,000 prisoners, but is expected to reach 1,900 in the next three years. Some 500 Vermont prisoners are currently housed in a Corrections Corporation of America prison in Kentucky. The report found the VDOC system is rife with communication problems and is under "tremendous stress" from budget cuts and the increased population. The report examined in great depth the circumstances of each prisoner's death and the conclusions to be drawn from those facts. Recommendations for change were included for administrative and legislative action.


The bulk of the investigative report addressed the events that ...

Captive Audience: Ohio Wants to Bring Prisoners to Jesus, the Law Be Damned

On August 12, 2003, the Marion Correctional Institution played host to a most unlikely revival. The Promise Keepers, the international men's Christian ministry, put on a four-hour service for about 1,000 men, more than half the prison's population.

Joe White, a former Texas A&M assistant football coach, offered a talk tailor-made for his audience. "The thief on the cross, the man on death row, was the first to be promised he'd be with Christ in paradise," White preached. "Jesus took your debt-- your sin -- and nailed it on the cross and said, `Paid in full; it is finished!'"

That message of hope carried far beyond the prison's walls. Thanks to the miracle of the internet, an estimated 10,000 men in 70 prisons across America and in Canada, England, and Ireland tuned in for the revival, billed by Promise Keepers as the first of its kind. One of those prisons was the Richland Correctional Institution in Mansfield, Ohio.

But at Richland, the Promise Keepers' reception was far less rapturous. At about 1:35 p.m., when prisoners ordinarily file out to the yard for recreation, those who lived in the Merit Unit -- reserved for well-behaved convicts-- were ordered back to their bunks for an emergency head count. Then the unit sergeant made an announcement. "Listen up, guys!" the sergeant said, according to a prisoner's grievance. "The following order comes directly from the warden: There is a program playing on Channel 14 [the institution's informational channel ...

Four Prisoners Injured in Shooting at Washington D.C. Jail

Four prisoners were injured in a shooting in the maximum security section of the Washington D.C. jail just after 2 p.m. on December 20, 2003. The shooting appeared to be a prisoner-on-prisoner assault, said Corrections Department spokesman Darryl J. Madden.

Four prisoners were injured. One prisoner was shot through the arm and chest, two were shot in the leg, and another was shot in a shoulder, said D.C. Fire Department spokesman Alan Etter.

The small caliber handgun believed to have been used in the shooting was found in a cellblock trash can. However, officials had no idea how the weapon got inside the jail or who fired it.

Pamela Chase, chairwoman of the Department of Corrections unit of the Fraternal Order of Police, blamed the shooting on insufficient staffing. Currently 638 jailers supervise more than 2,200 prisoners.

"This is a prime example of what is needed in that institution to deal with that level of population," said Chase. Chase noted that 324 jailers were cut in March 2001 and that the city council has refused requests for more. All four prisoners were expected to survive.

On April 7, 2004, Shawn Gray, 32, was indicted on charges ...

The American Correctional Association  A Fraud on Texas Taxpayers

The American Correctional Association A Fraud on Texas Taxpayers

by C. C. Simmons

In June, 2002, the Texas state prison system was finally released from 29 years of federal court oversight. The longest running civil rights class-action lawsuit in the history of the United States came to an end when Texas prison officials and the attorneys for the prisoner-plaintiff class grudgingly agreed that the Texas Department of Criminal Justice (TDCJ) was thereafter capable of running their 150,000-prisoner system without violating the United States Constitution. Or so they said.

Well before the end of federal court oversight and in anticipation of the new era of self-rule, the TDCJ contracted for the services of the American Correctional Association (ACA) of Lanham, Maryland. The ACA is a non-governmental private agency that offers a veneer of respectability to those client correctional institutions that comply with the association's volumes of published standards. After payment of the obligatory and substantial fees, the ACA's audit teams visit client prisons and, finding at least the appearance of compliance, the ACA declares the prison to be "accredited." Prison officials hope that ACA accreditation will thwart lawsuits over conditions of confinement by prisoners. That some of the ...

BOP Good Time Credits Must Be Calculated Against Sentence, Not Pro-Rated to Time Served

BOP Good Time Credits Must Be Calculated Against Sentence, Not Pro-Rated To Time Served

by John E. Dannenberg

The U.S. District Court (W.D. Wisc.) held that good time credits available to federal prisoners under 18 U.S.C. § 3624(b) must be calculated as a percentage of the sentence imposed rather than of the time served. Were the reverse true, as alleged by the BOP, the 54 days of (earnable) conduct credit per year of one's "term of imprisonment" would compute to only 47 days.

Yancey White, serving a ten year sentence at the Federal Correctional Institution at Oxford, Wisconsin (FCI) for drug distribution, sought habeas corpus relief to correct the BOP's calculation of his earned good time credits. FCI Warden Joseph Scibana had denied White's administrative appeal, asserting that 18 U.S.C. § 3624(b)'s language meant White had to serve each entire year outright before any credits would accrue to reduce his "term of imprisonment." Scibana declared that therefore White's maximum entitlement was to 470 not 540 days of such credits over his ten year sentence.

The district court construed the disputed ambiguity of § 3624(b)'s language to mean that ...

Ill-Equipped: U.S. Prisons and Offenders with Mental Illness

Human Rights Watch, 2003, 215 pp.

Reviewed by Tara Herivel

[In the interests of full disclosure, the author of this review contributed to the following Human Rights Watch Report as a source, and this magazine contributed to the gathering of testimonials for the report.]

It is deplorable that this state's prisons appear to have become a repository for a great number of its mentally ill citizens. Persons who, with psychiatric care, could fit well into society, are instead locked away, to become wards of the state's penal system. Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their psychoses."

Judge William Wayne Justice, Ruiz v. Johnson, 37 F. Supp.2d 855 (S.D. Texas, 1999).

Regardless of one's experience or
perspective concerning mental illness in the prison setting, Ill-Equipped, the 2003 report on this topic from Human Rights Watch will outrage and shock. As a one of a kind study (there is scant data on this issue), Ill-Equipped meshes the testimony of prisoners with reports from mental health workers and prison staff, drawing the sobering conclusion that the U.S. presently maintains a de facto policy of warehousing the ...

U.S. Supreme Court: ADA Title II Implicates Due Process Right of Physical Access To The Courts

by John E. Dannenberg

The U.S. Supreme Court held that Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132, which guarantees disabled individuals access to all activities of public entities, operated to protect disabled persons restrained by physical barriers in court facilities because such restraints implicated the fundamental Fourteenth Amendment due process right of access to the courts. In so holding (and affirming 315 F.3d 690 (6th Cir. 2003) below), the Court ruled that Congress' enforcement power (Fourteenth Amendment, § 5) trumped the state of Tennessee's defense that Title II of the ADA abrogated its right of Eleventh Amendment sovereign immunity.

In 1998, wheelchair-bound paraplegics George Lane and Beverly Jones sued Tennessee and some of its counties claiming they were denied access to and therefore the services of the state court system by reason of their disabilities. Lane, when compelled to appear on the second floor of a county courthouse to answer criminal charges, was forced to crawl up two flights of stairs. At a subsequent hearing, he refused to crawl upstairs or be carried by deputies in response to which he was arrested and jailed for failure to appear. Jones ...

Texas Prisoners Have Right to Specific Notice of Mandatory Supervision Hearing

by Matthew T. Clarke

On May 19, 2004, the Texas Court of Criminal Appeals (CCA) issued a revised opinion holding that a prisoner being considered for denial of mandatory supervision release has the right to specific notice of a pending hearing and a reasonable amount of time to submit evidence or why the prisoner should be released

In 1995, the Texas Legislature amended the mandatory supervision statute to allow a parole panel to deny mandatory release even though the prisoner's good conduct time added to calendar time equaled or exceeded the prisoner's sentence. § 508.149(b) Texas Government Code. The language of the amended statute was nondiscretionary and required that the parole panel make two determinations: "(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and (2) the inmate's release would endanger the public." If those two determinations are not made by the parole panel, the prisoner is released. The parole board reviewed over 18,000 discretionary mandatory release cases in 2003.

Thomas Christopher Retzlaff, a former Texas state prisoner, filed an application for a writ of habeas corpus challenging the lack of specific notice given ...

Manipulation of Crime Statistics and Use of Tax Dollars for Campaigning Revealed

by David M. Reutter

The public entrusts its law enforcement officials to protect it from crime and to use the tax dollars it provides to fulfill that duty. The manipulation of that trust has come to light. An Atlanta audit reveals that police officers caused more than 22,000 crime reports to disappear. An investigation in Tacoma County, Washington, is underway to determine if the county illegally used public tax dollars to promote a sales tax ballot initiative for more criminal justice measures.

The Tacoma investigation revolves around Proposition 1 on the November 2003 ballot. The measure sought three_tenths of 1 percent in the sales tax to pay for more cops, prison guards, prosecutors, and judges.

The investigation was launched by the Public Disclosure Commission (PDC) after three citizens filed complaints alleging the County used $60,000 in tax dollars to send flyers to likely voters and to campaign for the proposition. The campaign included creating programs addressing the proposition on the County's government cable channel, KRCC. Despite the County's effort, Proposition 1 failed when 59 percent of voters rejected it.

The Atlanta audit shocked many civilians, but law enforcement officials were not surprised. "It's been a ...

New York State Prisoner Awarded $30,000 for Work Related Injuries

On December 17, 2003, a state court of claims in White Plains, New York, awarded state prisoner Jose Santos $30,000 for injuries he sustained while working in the industrial-unit paint shop at the Fishkill Correctional Facility.

In his lawsuit, Santos alleged that on August 21, 1998, he injured his ...

Austin, Texas, Settles Wrongful Conviction Suit for $9 Million

by Matthew T. Clarke

On July 17, 2003, the City of Austin, Texas settled for $9 million a suit brought by the guardian of a wrongfully convicted Texas prisoner.

Richard Danziger, 31, a wrongfully convicted Texas state prisoner, spent 12 years in prison for a rape-murder he didn't commit ...

Idaho Incompetence Delays Prisoners' Release, Taxpayers Foot The Bill

Idaho prisoners check in but they don't check outand it's costing taxpayers thousands. That's the criticism being hurled at the Idaho parole commission and the state Department of Corrections (DOC) for unnecessarily holding prisoners past their approved parole dates.

At any given time, hundreds of state prisoners are being needlessly held past their parole dates. According to public records, during each month from September 2002 through August 2003, an average of 233 prisoners languished past their parole dates, with a high of 279 in June 2003. In October 2003 the number was 245, said Department of Correction Director Tom Beauclair.

These prisoners can be held for any number of reasons, including their inability to pay a $500 bond, not completing a required substance abuse treatment program, and failure to locate suitable treatment facilities for sex offenders.

For states facing huge budget deficits, so called pay-to-stay programs have become all the rage. But Idaho lawmakers have added a new twistpay to get out. A cockamamie legislative scheme requires prisoners paroling out of state to post a $500 bond before being released. The bond is necessary, says executive director of the Commission of Pardons and Paroles, Olivia Craven, because ...

California Prison Guard Union Scandal Goes Public

The current leadership of the California Correctional Peace Officers Association has charged 10 current and former leadership members with wrongdoing.

In internal documents received by the Lassen County Times, current President Mike DeWitt of the local CCPOA said both Mark Viale and Andrew Wellborn, past president and vice-president are guilty of "utilizing misappropriated funds for political gain _ large donations were made on multiple occasions to local charitable organizations that possess the ability to directly influence local politics." According to CCPOA bylaws both Viale and Wellborn are in violation of Chapter 12.

DeWitt and the local chapter also claim both Viale and Wellborn are guilty of "Supporting political candidates with authority from HDSP-CCC Political Action Committee under Mr. Viale's direction."

Specifically DeWitt said in a letter to Perry Speth, secretary of the CCPOA headquarters in Sacramento, "It should be noted that Mr. Viale's and Mr. Wellborn's choice of donations and professed support may have been influenced by the personal political aspirations and the promise of support in best `quid pro quo' fashion."

DeWitt claims donations to District Attorney Bob Burns were politically motivated and Viale's appointment to the Lassen County Grand Jury is evidence of political ...

Prisoner Shot Dead by Guard in California Prison Riot

One prisoner was shot dead and four others received wounds requiring outside hospitalization, in a 20 minute riot an October 12, 2003 at Facility "B" of Pleasant Valley State Prison (PVSP), a 5,000 man prison in Coalinga, California.

The evening melee occurred in a recreation yard between 40 Mexican nationals and 10 "Southern" Hispanic prisoners. Others in the dining hall could see the fight, encouraging another 250 to riot there and in a gymnasium [being used as a 250 man Level III lifer dorm].

The prisoner whose life was said to have been in danger in the yard walked away with bruises. But his assailant, 28 year-old Alejandro Enriquez of Whittier, California - serving 15 years-life for second degree murder - did not. He took one round in the chest from a Mini-14 rifle in the tower and died on the spot.

PVSP spokesman Lt. Paul Sanchez stated that standard protocol had been followed after Enriquez allegedly refused repeated warnings to cease fighting - continuing to pummel the other prisoner even after guards fired five rounds of non-lethal wood blocks, followed by a live Mini-14 "warning" round.

But a prisoner administrator-who asked not to be named, to protect against job retaliation - said ...

Supreme Court Justice Criticized Over No Recording Policy, Federal Agent's Actions

U.S. Supreme Court Justice Antonin Scalia's longstanding policy of prohibiting audio and video recordings of his remarks came back to haunt him on April 7, 2004, when an over zealous Federal Deputy Marshall assigned to protect the justice ordered two journalists to erase recordings they were making of his speech to Mississippi high school students. The incident prompted outrage from local journalists and written apologies from Scalia.

As Scalia was delivering a lecture on the Constitution to students at the Presbyterian Christian High School in Hattiesburg, Deputy U.S. Marshall Melanie Rube noticed two journalists in the front row recording the speech. Rube confronted the two and, citing Scalia's constitutionally questionable policy, demanded they erase their recordings.

When Associated Press reporter Denise Crones refused, Rube confiscated her digital recorder. Rube erased the recording after the cowed Crones explained how to operate the machine. Rube then demanded Hattiesburg American reporter Antoinett Konz relinquish a cassette tape, which Rube erased and returned after the event.

The recordings were not meant for broadcast or publication. Print reporters simply make recordings to ensure the accuracy of their quotes, "and that's what I was doing that day," said Konz.

Protests from ...

California Changes Policies for Prison Gangs and Security Housing Units

by Charles F.A. Carbone, Esq.

Major changes to prison gang management policies and the use of security housing units (SHU's) or super-maximum prisons are expected in California prisons due to the settlement of a lawsuit brought by a California prisoner. The settlement requires substantial modifications in the procedures used by prison officials when placing and retaining prisoners whose alleged gang membership results in indefinite confinement in a SHU.

California houses nearly 4,000 prisoners in its four super-maximum SHU prisons located at Pelican Bay State Prison, Corcoran State Prison, California Correction Institution at Tehachapi, and Valley State Prison for Women. Most super-max prisoners are housed in the SHU based upon prison officials labeling or "validating" prisoners as members or associates of prison gangs. The label or validation of a prisoner as a prison gang member is often based on innocuous evidence that a prisoner conversed or associated with a prison gang member regardless of the content or reason for the association. In fact, California routinely placed prisoners in solitary confinement in the SHU's based on such things as inmates sending "get-well" greeting cards, prisoners exercising together, drawings of Chicano art, or an address found in prisoner address ...

Survivors of Prisoner Killed in Texas County Jail Awarded $2,500,000

On May 20, 2003, a state district court in El Paso, Texas, awarded $2.5 million in damages plus attorney fees and court costs of $393,518 to the surviving spouse, daughter and estate of a man who died while imprisoned in the El Paso County Jail.

Eduardo Miranda, a ...

Complaints Amended to Change John Doe Defendants' Names Don't Relate Back

by Matthew T. Clarke

The Tenth Circuit court of appeals held that an amended complaint filed to change the names of John Doe defendants did not related back to the original complaint for statute of limitations purposes. The court also refused to apply equitable tolling.

Jonathan Garrett, a federal prisoner in Colorado, filed suit pursuant to Bivens vs. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) naming federal Bureau of Prisons (BOP) Director Kathleen Hawk and ten "John Does" who were BOP guards whose names were not known to Garrett. The complaint alleged excessive use of force and denial of medical treatment by BOP personnel. The district court dismissed the complaint for failure to exhaust administrative remedies. As reported in the Oct. 1998 PLN, the Tenth Circuit reversed the dismissal and returned the case to the district court for further proceedings. Garrett v. Hawk, 127 F.3d 1263 (10th Cit.1997). The holdings of that case were later overruled by Booth v. Churner, 532 U.S. 731 (2001).

On September 2, 1998, Garret's attorney filed an amended complaint dismissing Hawk as a defendant and naming C. Fleming, John Smith and six "John ...

Former Illinois Governor Indicted on Federal Charges

Former Illinois governor and Nobel Peace Prize nominee George Ryan was indicted December 17, 2003, on federal charges of racketeering, mail and tax fraud, and lying to investigators.

Federal prosecutors allege that Ryan and his political bedfellows treated state employees and the treasury as personal property. As of December 2003, 66 people have been indicted and 59 convicted.

During Ryan's term as secretary of state from 1991 to 1999, prosecutors contend that Ryan negotiated side deals on public contracts to get a cut of the profits, improperly accepted free vacations, and divulged confidential information to friends who used it for personal gain. The value of Ryan's illicit dealings purportedly totaled $167,000. Ryan also allegedly steered more than $300,000 in loans, gifts and services to a friend, hid the transactions, and then lied about them to investigators.

"The state of Illinois was for sale," said U.S. Attorney Patrick J. Fitzgerald. "It was cronyism. People were given inside information, and they acted on it....He knew he was breaking the law."

Ryan's indictment came as no surprise to those familiar with the five-year investigation. "Everybody was working under the assumption that eventually it was coming down ...

FTCA Claims for Sentence Miscalculation Accrues Upon Reversal; Statute of Limitations Tolled

The Ninth Circuit Court of Appeals has held that a civil action under the Federal Tort Claims Act (FICA) for negligently calculating a federal prisoner's release date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody.

This action was brought by former federal prisoner Darrow Erlin, alleging federal officials negligently calculated his release date, resulting in him serving 311 days after he should have been released. The Northern District of California dismissed the suit, holding that Erlin's cause of action occurred on or about May 9, 1996, when the United States Parole Commission issued the warrant based on the miscalculated parole expiration. Based on that, the court held that the two-year limitations period on FTCA suits expired before Erlin filed his claim on November 1, 1998.

The Ninth Circuit found that because Erlin committed crimes both before and after the Sentencing Reform Act of 1984, and he kept committing new ones while still under sentence for the old ones, the computation of his release date was complex. Nonetheless, Erlin prevailed on a federal habeas corpus petition ...

$76,000 in Fees and Damages Awarded in Kansas Excessive Force Claim

The federal district court in Kansas has awarded a state prisoner $45,000 plus $30,913.90 for attorney fees and expenses in an excessive force claim brought against three prison guards. The court also denied qualified immunity, found expert witnesses were not required in examining excessive force claims, and ...

Washington Jail Settles Conditions Lawsuit

On October 6, 2003 officials in Jefferson County, Washington settled a class action lawsuit filed by a Jefferson County Jail prisoner. The suit alleged inhumane living conditions and resulted in sweeping changes in jail policy.

On February 25, 2002 Shawn Orndorff, a prisoner at the jail, filed the complaint in ...

Washington Jail Trustees Entitled to L&I Benefits

Division 3 of the Washington State Court of Appeals (Div. 3) has ruled that county jail trustees who are hurt while performing their duties are entitled to benefits from Labor & Industries (L&I) under RCW § 51.12.035 et seq.

In July of 2002, David J. Wissink was serving 90 days in the Stevens County Jail for an unspecified offense. Wissink had volunteered to be a trustee and was injured while carrying a bunk through a cell door. His injury required several stitches.

On August 2000, the jail applied to L&I. to pay Wissink's medical expenses, pursuant to § 51.12.035. The jail believed that Wissink qualified as a "volunteer" under 2 of the statute since he: (1) performed duties for the local government; (2) by his own free will; (3) without pay; and (4) was registered by the jail as a volunteer. As such, the jail claimed that Wissink was entitled to L&I benefits as a "volunteer" worker. L&I refused to pay because the statute did not expressly identify prisoners as potential recipients of L&I benefits.

The jail appealed to an unnamed industrial appeals judge, who reversed L&I, which appealed to the superior court. The superior court ruled in favor of L&I, and the jail appealed directly to the state supreme court. That court ultimately transferred the case to Div. 3, which disposed of the case in the jail's favor.

On appeal L&I contended that since § 51.12.035(2) did not expressly identify jail trusties as volunteers it was ambiguous. On that basis, L&I asked Div. 3 to construe the statute to mean that jail trustees do not qualify as volunteers under the statute, thus are not entitled to any L&I benefits for work related injuries.

Div. 3 rejected L&I's argument, holding that if a jail trustee: (1) performs assigned or authorized duties for the government or a nonprofit organization; (2) by his or her own free will; (3) without pay; and (4) is registered as a volunteer; he or she qualifies as a volunteer under § 51.12.035(2). Div. 3 then found that all those elements were met in this case. Thus, Wissink was found to be entitled to the requested L&.I benefits.

See: In re Wissink, 81 P.3d 865 (Wash. App. 2003).

Prison AIDS Cases, Deaths Increase; HIV Infections Decrease

In January 2004, the Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice, reported that the number of confirmed Acquired Immune Deficiency Syndrome (AIDS) cases and AIDS-related deaths among all state and federal prisoners increased from yearend 2000 to yearend 2001. In the same time period, the number of prisoners known to be infected with Human Immunodeficiency Virus (HIV), the causative agent of AIDS, decreased. PLN reports frequently on prisoners and AIDS.

On December 31, 2001, 22,627 state prisoners (2.0% of the total population) and 1,520 federal prisoners (1.2%) were known to be infected with HIV. The 4,147 infections represented a decrease of 1,186 infections from yearend 2000. The federal infection rate, though, was the highest ever recorded in the federal system.

At the same time, the number of AIDS cases increased from 5,696 at yearend 2000 to 5,754 at yearend 2001. AIDS case rates were 0.5% among state prisoners and 0.4% among federal prisoners.

AIDS-related deaths also rose in 2001. The total number of known AIDS-related prisoner deaths in 2001 was 222, up from 185 the previous year. Twenty-two of the 2001 deaths were ...

Administrative Remedies Deemed Unavailable Based on Physical Injury

Administrative Remedies Deemed Unavailable Based On Physical Injury

By Bob Williams

The Fifth Circuit Court of Appeals has held that administrative remedies are unavailable when a prisoner has a physical injury which prevents filing a grievance and a subsequently filed grievance is then rejected as untimely.

Frank Days slipped and fell in a Texas state prison kitchen. He broke his hand which required "extensive medical treatment, including reconstructive surgery." Since this was his writing hand he could not file a grievance until it healed. He then filed Step I of a two-step grievance process. Step I was returned as untimely barring Step II.

Days filed a § 1983 complaint in federal court which was dismissed for failure to exhaust administrative remedies. Days attempted another round at the grievance system, repeating the previous result, then moved the federal court for a modified judgment under F.R.Civ.P. 59(e) arguing the state prison system doesn't allow sufficient time to file grievance when there is a legitimate reason for not filing. Days' motion was denied.

On appeal, the Court reversed holding that the Prison Litigation Reform Act (PLRA) does not define the phrase "such administrative remedies as are available" contained in ...

Federal Halfway House Litigation

by Todd Bussert, Esq.*

In Decemberr 2002, a shock wave reverberated through the federal prison system, when the Bureau of Prisons (BOP) announced radical changes in its policy on when it will allow prisoners to serve some or all of their sentences in Community Confinement Centers (CCCs or halfway houses). Under the new rules, BOP no longer permits CCCs to be used as institutions of initial designation for qualified prisoners serving relatively short sentences. And, in a related change having a much greater impact, BOP now restricts pre-release CCC placements, with few exceptions, to the final 10% of a prisoner's time served (sentence imposed less good conduct time). This dramatic policy shift was disseminated through various BOP memoranda, issued in response to an opinion from the Department of Justice's Office of Legal Counsel.

A spate of litigation followed the announcement, as those who had already been directly placed at CCCs, and those awaiting surrender there, sought relief to prevent their revised placements at Federal Prison Camps (FPC), or as Metropolitan Detention Center (MDC) work cadres. The result, overwhelmingly, was judicial intervention, in which most courts invalidated the BOP's sudden and unexpected rule change. See, e.g., Iacaboni ...

Prison Guards With Criminal Records Work in Texas Prison

Over ten percent of the guards at the Lyncher State Jail, near Houston Texas, are convicted felons themselves. Houston television station. KPRC uncovered court files showing that about thirty of the guards had served time. Some are repeat offenders; some are ranking officers.

Charges against the guards include felony theft, forgery, illegally carrying a firearm, assault and resisting arrest among others. Sgt. Jay Hart was arrested and convicted for both theft and trespassing. Guard Kirk Booker is a three-time loser having served time for threats and family violence. His work record reflects a pattern of physical violence against prisoners and coworkers also; for which he is still on probation.

Policy in the Texas Department of Criminal Justice (TDCJ) is a major part of the problem. Felonies that can keep a person from getting hired are not enough to get them fired.

One investigator asked, "So if the policy says that this kind of conviction means you're unfit to be a corrections officer, why is it that once you're already a corrections officer, that same thing doesn't apply? Either you're fit to be a corrections officer or you're not."

Ken Johnson, personnel manager for TDCJ, explained ...

News in Brief

Alabama: In March, 2004, Jefferson county jail guard Antonio Allums was charged with misdemeanor assault for attacking jail prisoner Michael Boler in the jail by choking him, slamming his head against a wall and then trying to cover it up. Boler was attacked for no apparent reason. Allums had previously been disciplined for similar attacks on helpless jail prisoners. He was fired after his arrest in this case.

California: On April 26, 2004, 28 black and Hispanic prisoners at the Correctional Training Facility in Soledad rioted, leaving some of the prisoners with minor injuries.

Columbia: In July, 2004, the U.S. returned Nelson Vargas Rueda to Columbia to resume serving a 54 month sentence for rebellion. Rueda is the first member of the Marxist Fuerzas Armadas Revolucionarias de Columbia (FARC) to be extradited to the US. American prosecutors claimed Rueda had killed three American Indian rights activists in Columbia in 1999. The FARC admitted to committing the killings but stated it was a mistake by its members. Rueda was charged and extradited to the US on murder charges only to have the case dismissed on June 28, 2004, when the government was unable or unwilling to locate two witnesses in ...


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