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Prisoner Education Guide

Prison Legal News: January, 2005

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Volume 16, Number 1

In this issue:

  1. Florida's Private Prison Industry Corporation Under Siege (p 1)
  2. Is There A Winning Argument Against Excessive Rates For Collect Calls From Prisoners? (p 6)
  3. Prison Needle Exchanges Around the World (p 7)
  4. Latest Honduran Prison Massacre: "Homies Were Burning Alive" (p 8)
  5. Texas "Gang Expert" Indicted for Sex Assaults (p 11)
  6. Ex-Rikers Island Chief Indicted (p 12)
  7. From the Editor (p 12)
  8. Massachusetts Court Enjoins Sheriff from Charging Jail Prisoners Assorted Fees (p 13)
  9. Don't Build It Here - The Hype Versus the Reality of Prisons and Local Employment (p 14)
  10. Washington Jail Settles Wrongful Death Suit For $1.6 Million (p 17)
  11. California Initiative To Soften "3-Strikes" Law Defeated; DNA Collection From Arrestees Approved (p 18)
  12. Washington Prison's Water System and Meat Contaminated With Feces (p 19)
  13. Qualified Immunity Denied to Supervising Driver's License Examiner in Oklahoma Prisoner's Rape (p 20)
  14. New York Prisoner's Retaliation Suit Remanded for Trial (p 20)
  15. HIV Is Occupational Disease for Connecticut Prison Guards (p 21)
  16. DNA Profiling of Conditionally Released Federal Offenders Upheld (p 22)
  17. Los Angeles Voters Reject 5,000 More Cops; Invest In Clear Ocean Instead (p 23)
  18. Washington ISRB Departure From Standard Sentencing Range Upheld (p 24)
  19. Misidentification Requires Washington Jail Officials Take Reasonable Steps to Confirm Identity (p 24)
  20. Texas Supreme Court clarifies Procedures For Civil Court Prisoner Appearances (p 25)
  21. Uprisings at CCA Prisons Reveal Weaknesses in Out-of-State Imprisonment Policies (p 26)
  22. Colorado DOC Report: CCA At Fault for Crowley Uprising (p 31)
  23. City Settles In Death of Prisoner at CCA-Operated Tulsa Jail (p 32)
  24. Kansas Supreme Court Upholds Gift Subscription Ban (p 33)
  25. Non-Contact Visits for Pennsylvania Sex Offenders Upheld (p 34)
  26. Total Confinement: Madness and Reason in the Maximum Security Prison (p 35)
  27. Gang Validation in Retaliation for Filing Grievances Is Actionable (p 36)
  28. Verdict for Other Defendants Cannot Negate Jury Question of Warden's Liability in Transsexual's Assault (p 36)
  29. Illinois ETS Injury Claim Allowed To Proceed; Out-of-State Legal Materials Ordered Provided (p 38)
  30. Public and Press Have First Amendment Right to Access Court Docket Sheets (p 39)
  31. Prisoner Stated Deliberate Indifference Claim, But Summary Judgment Denial Reversed (p 40)
  32. Verdict for Other Defendants Cannot Negate Jury Question of Warden's Liability in Transsexual's Assault (p 40)
  33. News in Brief (p 42)
  34. Arizona Adopts Favorable Termination Rule in Attorney Malpractice Suits (p 44)

Florida's Private Prison Industry Corporation Under Siege

by David M. Reutter

As early as 1980, drugstore mogul Jack Eckerd was convinced a private company could provide higher profits to Florida if it ran the state's Prison Industries. After Eckerd's lobbying of the Florida Legislature, that Legislature enacted laws to create Prison Rehabilitative Industries and Diversified Enterprises (PRIDE) as a private, non-profit corporation to lease and manage the state prison industries program. A December 2003 special report by the Florida Legislature's Office of Program Policy Analysis and Government Accountability (OPPAGA) concluded PRIDE has failed to explain its corporate structure or protect state interests while PRIDE's Directors appear intent on ensuring they personally profit.

Florida Law establishes that PRIDE's mission is to: provide education, training and post-release job placement to prisoners to help reduce recommitment; enhance security by reducing prisoner idleness and providing an incentive for good behavior in prison; reduce costs to the state by operating enterprises primarily with prisoner labor while not unreasonably competing with private enterprise; and rehabilitate prisoners by duplicating, as nearly as possible, the activities of a profit-making enterprise.

Ostensibly to help PRIDE carry out its stated mission, it was granted sovereign immunity, which shields it from liability in ...

Is There A Winning Argument Against Excessive Rates For Collect Calls From Prisoners?

by Madeline Severin, 25 Cardozo Law Review 1469, March, 2004

Review by John E. Dannenberg

We all know about how prisons and jails conspire with telephone companies to bilk recipients of prisoner phone calls via exorbitant chargesswollen by kickbacks approaching 60%but how does one legally challenge this scheme?

Yeshiva University Doctor of Jurisprudence candidate Madeline Severin has thoroughly researched existing case law, legislative histories and peer law review literature in creating her Cardozo Law Review treatise that insightfully discusses the history of state and federal legal challenges to prisoner telephone-call price gouging. Severin then proceeds to analyze each legal theory attempted, showing where it failed or occasionally, was held to have merit. From this analysis, she then looks forward to how the problem might have to be approached in the future. In sixty pages of text replete with 390 comprehensive footnotes informative for both pro-per and attorney readers, Severin first examines existing case law. She notes that federal prisoners pay lower rates, but that the legal theories protecting them have little to do with state law claims on prisoner phone rates.

One major obstacle is the "filed rate doctrine," wherein once a phone company has "filed" its rate plan ...

Prison Needle Exchanges Around the World

Did you know the first prison needle exchange program was started in Switzerland in 1992? Would you guess that the five other countries maintaining needle exchange programs in their criminal justice systems are Germany, Spain, Moldova, Kyrgyzstan and Belarus? In the United States, where Los Angeles television stations recently refused to air a public service announcement on the dangers of syphilis for fear of reprisal from the Federal Communications Commission, a national harm reduction policy addressing the spread of HIV and hepatitis C in our prisons and jails sounds like a pipe dream.

This, however, is the recommendation from the Canadian HIV/AIDS Legal Network, who forcefully argue for needle exchange programs in Canada's federal and territorial prisons in their recent report Prison Needle Exchange: Lessons from a Comprehensive Review of International Evidence and Experience . Relying on international law and standards and the overwhelmingly positive experiences of the prisons and jails that have implemented needle exchange, this report refutes common fears and prejudices which impede these programs and makes a convincing case for their implementation.

Prison needle exchanges programs in these varied countries were brought about by the common understanding that the criminal justice system incarcerates a disproportionately high ...

Latest Honduran Prison Massacre: "Homies Were Burning Alive"

In first-ever interviews, representatives of the Mara Salvatrucha (MS) gang in Tegucigalpa, Honduras this May described how security forces were to blame for the May 17, 2004 prison fire that killed 105 of those they call their homeboys. In addition to starting the fire, police and prison guards allegedly kept the facility's gates locked for over an hour while trapped prisoners were burnt alive or died from smoke inhalation.

Human rights observers, children's advocates, and MS members say the tragedy is a direct consequence of Honduras' mano dura (strong hand) policies. These policies employ suppression tactics based on New York City's "zero tolerance" police strategies of the `90s, and were instituted on the advice of the Manhattan Institute think-tank and the Giuliani Group, which have exported the New York model to Latin America.

Mayor Rudy Giuliani's policies, while popular with many New Yorkers, resulted in notorious police shootings of innocent individuals such as Amadou Diallo. The tactics also included stop-and-frisk sweeps that led to the preventive detention of thousands of young blacks and Latinos, until lawsuits challenging racial profiling methods spelled the demise of the NYPD's Street Crime Units.

An over-the-top version of the New ...

Texas "Gang Expert" Indicted for Sex Assaults

On June 17, 2004, top Texas prison administrator Salvador "Sammy" Buentello was indicted on felony charges that he sexually assaulted three female employees of the Texas Department of Criminal Justice (TDCJ). A week earlier Buentello had been indicted on four misdemeanor charges of official oppression for alleged sexual harassment.

In his more than 25 years with TDCJ, Buentello had built a reputation for being hard, tough, and uncompromising. As director of the Department's Security Treat Group Unit, which monitors institutional gang activity, the swaggering Buentello was a nationally known expert on prison gangs and the tactics used to appear to combat them. Around the prison system he became known as a macho man. Perhaps a little too macho.

Five women, all former employees, have accused Buentello of sexual misconduct during his tenure as head of the State Classification Committee, a TDCJ division that assigns prisoners to a particular prison, including long term segregation units. Two of the victims have filed a federal lawsuit against Buentello and TDCJ.

According to Walker County District Attorney David Weeks, officials decided to investigate after several women filed complaints with TDCJ's Office of the Inspector General. After conducting numerous interviews, investigators ultimately referred ...

Ex-Rikers Island Chief Indicted

Anthony Serra, formerly the second in command at the New York City Department of Corrections (DOC), has been indicted for felony grand larceny and 145 counts of misdemeanor violations of the Conflict of Interest Law. He faces up to 15 years in prison for the theft and a $5,000 fine for each misdemeanor count.

As reported in the August, 2003 PLN , Serra is accused of misusing DOC personnel and resources for political purposes. According to Bronx District Attorney Robert Johnson, Serra, who was the supervisor of Rikers Island Jail, coerced wardens and captains to take days off and work on the campaigns of New York Mayor Michael Bloomberg and former Mayor Rudy Guiliani.

Serra also allegedly stole money from the campaign of New York Governor George Pataki. Serra allegedly first "volunteered" his jail employees to work as poll-watchers for Pataki, then falsely told the Friends of Pataki Committee that he paid them $100 each for the poll-watching, who then reimbursed him $200,000 for Primary Day (9-10-02) expenses. However, Serra allegedly kept $62,500 for himself that had been to reimburse the poll-watching payments.

Serra was arraigned on August 13, 2004. His attorney, Peter Driscoll, proclaimed his innocence.

"He ...

From the Editor

Welcome to the first issue of 2005. The year is starting pretty much the way it ended in terms of political progress for prisoners' rights: not very good at all. The ongoing, simmering outrage of the abuse of Iraqi and Afghan prisoners by the US military in those countries and in Cuba has helped raise awareness about the abuses inflicted on US prisoners. Both in PLN and in other media we have strived to make this connection and it seems to be sinking home. As the cover story of last month's issue noted, all the high ranking commanders who either ordered the torture and abuse of foreign prisoners, or who directly oversaw it, remain employed and in most cases have been promoted since the torture and murders became public knowledge. Some of the low ranking torturers and killers have been given show trials to deflect blame from their superiors.

PLN has consistently pointed out that the treatment meted out to foreign prisoners is pretty much what US prisoners have been experiencing for decades. As this issue, and every issue of PLN reports, corruption, brutality and sadism are not restricted to the armed forces or to foreign prisons. They occur ...

Massachusetts Court Enjoins Sheriff from Charging Jail Prisoners Assorted Fees

Massachusetts Court Enjoins Sheriff from
Charging Jail Prisoners Assorted Fees

by Michael Rigby

The sheriff of Bristol County, Massachusetts, has been enjoined from gouging prisoners and their families on jail service fees in accordance with his Inmate Financial Responsibility Program (IFRP).

Under the program, prisoners in the Bristol County Jail and the Bristol County House of Corrections were saddled with multiple fees. These included a $5 a day fee for the prisoners' "cost of care," $5 for prisoner initiated medical visits, $3 for pharmaceutical prescriptions, $5 for eyeglass prescriptions, $5 for a hair cut or beard trim, and $12.95 to register and take the General Equivalency Diploma (GED) test. These fees were automatically deducted from the prisoners' Inmate Money Account (IMA). If a prisoner had no money in the IMA, the debt accrued for a period of two years and was deducted whenever a prisoner received money.

On July 9, 2002, the day after Hodgson implemented the program, attorney for the prisoners, James R. Pingeon, Litigation Director for Massachusetts Correctional Legal Services, filed a lawsuit challenging Hodgson's fee scheme as unconstitutional. Hodgson removed the case to U.S. District Court, but on July 17, 2003, after the plaintiffs ...

Don't Build It Here - The Hype Versus the Reality of Prisons and Local Employment

Don't Build it Here - The Hype Versus the Reality of Prisons and Local Employment

by Clayton Mosher, Gregory Hooks, and Peter Wood

Fueled by the war on drugs, Draconian sentencing policies, and more general get tough on crime policies, the United States has experienced phenomenal growth in prison populations over the last two decades. As of June 30, 2002, there were more than two million prisoners in prisons and jails in the United States; 1,355,748 prisoners were housed in state or federal facilities, with an additional 665,745 in local municipal and county jails. This represents a more than six-fold increase in the number of prisoners over a 30-year period. More than 5.6 million Americans, or one in 37 adults, are currently in prison or have previously served time in a prison. The disproportionate racial impact of this imprisonment binge exacerbates the tragedy. In 1999, over 44 percent of the prisoners in state and federal prisons and local jails were African-American, and fully 11 percent of black males in the 25-34 age group were incarcerated in that year. While not as severe as those for black males, the imprisonment rates for African-American women, Hispanics, and Native-Americans ...

Washington Jail Settles Wrongful Death Suit For $1.6 Million

On October 12, 2004, Jefferson County, Washington, agreed to pay $1.6 million to settle a lawsuit arising from the wrongful death of Kevin Bledsoe in the Jefferson County Jail. The settlement is one of the largest ever for excessive use of force by a county in the Pacific Northwest, according to the family's attorneys.

On the morning of March 24, 2001, the lawsuit alleged, Kevin Bledsoe, 23, was forcefully restrained by four Jefferson County sheriff's deputies in a Port Hadlock parking lot. The deputies were Andy Pernsteiner, Michael Stringer, Benjamin Stamper and John Saum. In the course of restraining Bledsoe, the deputies threw him to the ground, sprayed him in the face with pepper spray, and placed a hood over his head. Bledsoe was then hog-tied and placed on his stomach in the back of a police car while the deputies continued to interview witnesses.

Although Bledsoe was in obvious need of medical attention, the lawsuit contended, he was taken to the Jefferson County Jail rather than to a hospital. At the jail Bledsoe was stripped of his clothes and held face down on the floor of an unlit "crisis cell" until he lost consciousness. There he ...

California Initiative To Soften "3-Strikes" Law Defeated; DNA Collection From Arrestees Approved

California Initiative To Soften "3-Strikes" Law Defeated;
DNA Collection From Arrestees Approved

Proposition 66 (Prop. 66), a voter Initiative Act placed on the ballot by prisoners' families to soften California's unforgiving "3-Strikes" law by qualifying an offense as a third strike only if it is an enumerated "serious" or "violent" felony (rather than the current "any felony") was crushed by an intense eleventh hour media fear-campaign. Only one week before the election, polls showed that Prop 66 enjoyed a 65% "sure win" sentiment, with $2.8 million donated to support its passage and only $133,000 to oppose it. But that evaporated to a losing 46% vote by November 4, 2004, the big money, special interest, contributions of $6.2 million poured in and changed 1.5 million voters' minds. The media-blitz of misinformation was paid for with over $2 million donated by Governor Arnold Schwarzenegger's initiative campaign fund, $3.5 million from southern California billionaire Henry Nicholas III and at least $700,000 from the powerful California prison guards union (CCPOA). Separately, the voters approved Proposition 69 (Prop. 69) which provides for collection of DNA samples from all current prisoners as well as from sex offender and ...

Washington Prison's Water System and Meat Contaminated With Feces

On August 20, 2004, fecal coliform and E. coli were found in the water system at the McNeil Island Correction Center (MICC) near Steilacoom, Washington. E. coli was also found in about 6,000 pounds of ground beef produced at a meat processing plant on the Island prison. Both types of bacteria are caused by fecal contamination and can cause serious illness and death in humans.

Bottled water was provided for MICC prisoners for about a week while the bacteria were flushed from the water system. All subsequent tests have shown the water to be contaminant-free.

The meat in question was supposed to go to other Washington prisons and meal programs for the elderly, said Howard Yarbrough, head of the correctional industries work program in Washington prisons. Yarbrough said that the contaminated meat had been isolated for more tests and eventual destruction.

Yarbrough said that water used for meat processing on the island tested positive for the bacteria, without commenting on its source. Additionally, MICC administrators claim they do not know the bacteria's origin.

However, minimal investigation reveals the likely source of the fecal coliform. Between 1999 and 2002, the MICC wastewater p1ant operator submitted 36 falsified water reports ...

Qualified Immunity Denied to Supervising Driver's License Examiner in Oklahoma Prisoner's Rape

by David M. Reutter

The Tenth Circuit Court of Appeals has held that a state driver's license examiner who exercised supervisory control over a prisoner acted as a state actor and can be held liable for raping her. Pamela Smith, a former prisoner of Oklahoma's Tulsa Community Correction Center (TCCC), brought this action. TCCC prisoners are required to participate in the prisoners' works program. Smith was assigned to perform janitorial services at the Oklahoma Department of Public Safety (DPS) at the Tulsa Northside Center.

TCCC trained two DPS employees, Ed Spencer and defendant Don Cochran, in the supervision of prisoners. Spencer would pick Smith up at TCCC each work day and return her to TCCC. While Spencer was the supervisor of two DPS Centers, Cochran normally supervised Northside. So, supervision of Smith was Cochran's responsibility.

DPS was allowed to use TCCC prisoners to perform DPS work, but TCCC retained "full jurisdiction and authority over discipline and control of prisoners." Prisoners were prohibited from using alcohol or drugs, engaging in sex, receiving visitors, using the telephone, or leaving the DPS facility except to return to TCCC. Any violation was to be reported by the supervisor to TCCC.

During ...

New York Prisoner's Retaliation Suit Remanded for Trial

The Second Circuit Court of Appeals has reversed a district court's grant of summary judgment to guards in a prisoner's retaliation suit. This action was filed by New York prisoner Anthony Bennett, alleging he was retaliated against for successfully prosecuting a previous lawsuit and filing grievances.

In 1995, Bennett filed an action alleging that guards retaliated against him for filing grievances, and they instituted false misbehavior reports against him and punitively transferred him to a different prison. In September 1997, settlement negotiations ensued, and the defendants agreed to pay Bennett $3,000 and transfer him to another facility. In the spring of 1997, Bennett had been transferred from Attica Correctional Facility, a maximum security prison, to Collins Correctional Facility, a medium security prison. Before the settlement was finalized, Collins officials tried to transfer Bennett back to Attica. That attempt was administratively denied because of "insufficient reason for placement."

Three days after that denial, Bennett received two disciplinary reports: one for defacing library books, the other for "working to consolidate unauthorized groups to a common purpose to the detriment of the safety and security of the facility." Both charges were sustained and Bennett was transferred to Attica. Bennett administratively ...

HIV Is Occupational Disease for Connecticut Prison Guards

HIV is Occupational Disease for Connecticut Prison Guards

The Connecticut Supreme Court held that the human immunodeficiency virus (HIV) is an occupational disease for prison guards who are members of prison emergency response units. The court also held that the estate of a deceased guard filed a timely claim for death benefits under Conn. Gen. Stat. § 31-294c, by filing the claim within three years.

A Connecticut Department of Corrections (DOC) guard who worked at the Bridgeport Correctional Facility from 1986 to 1991 was diagnosed in April, 1992, with HIV. In March, 1993, he died from Acquired Immune Deficiency Syndrome (AIDS), and his estate filed a notice of claim with the workers' compensation commission, alleging that he contracted HIV through his contact with prisoners.

The "claim was filed more than one year after the decedent's last date of employment, and was, therefore, untimely under the one year limitation period set forth in § 31-294c for accidental and repetitive trauma injuries." The estate argued "that the claim was timely under the three year limitation period set forth in § 31-294c for occupational disease claims. The defendant [DOC] disagreed, and filed a motion to dismiss. . . for lack of jurisdiction."

Ultimately, "the Commissioner found that ...

DNA Profiling of Conditionally Released Federal Offenders Upheld

DNA Profiling Of Conditionally Released Federal Offenders Upheld

by John E. Dannenberg

A sharply divided en banc Ninth Circuit U.S. Court of Appeals held that the United States does not violate the Fourth Amendment when it requires "DNA profiling", a practice compelling the submission of DNA samples from certain conditionally released federal prisoners in the absence of individualized suspicion that they have committed new crimes.

In enacting the DNA Analysis Backlog Elimination Act of 2000 [DNA Act] (see 42 U.S.C..§ § 14135a(a)(1)(2) and a(c)(1)(2)), Congress ordered that individuals convicted of "qualifying federal offenses" [e.g., homicide; aggravated and sexual assaults, robbery, burglary, arson (or attempts)] must provide blood samples for DNA "genetic fingerprinting" for use in a national law enforcement data base. The DNA coding authorized may use only nongenic "junk DNA" code not associated with any known physical or medical characteristics. The practice is intended to aid forensic crime-scene identification while avoiding invasion of privacy as to personal DNA genetic characteristics. The constitutional question raised here is whether such "fingerprinting" in the absence of individualized suspicion of one's having committed a new crime violates the Fourth Amendment's protection against ...

Los Angeles Voters Reject 5,000 More Cops; Invest In Clear Ocean Instead

by John E. Dannenberg

Los Angeles, California voters, in a November 2004 campaign marred by scare tactics, rejected a 1/2 cent sales tax measure (Measure A) that would have raised $560 million per year to pay for 5,000 added cops. At the same time, the voters approved a $500 million bond measure for improvements to the city's storm drainage system to prevent polluted runoff from entering the Pacific Ocean.

With a current staff of 9,099 city police sheriff deputies to serve 3.8 million residents, Los Angeles County Sheriff Lee Baca and L.A.P.D. Chief William Bratton tried to sell the public on the idea that they were understaffed compared to cities like Chicago, which has 13,500 cops for 2.9 million people Indeed, they were so understaffed that in the past 2 ? years, 119,577 prisoners had been let out of L.A. County jails early - often doing only 10% of their sentence - because the jails were full, Further analysis showed that 62,090 of those left jail within just a day or two, notwithstanding sentences of many months for burglary, drunk driving and minor assaults. Baca lamented that the jail population ...

Washington ISRB Departure From Standard Sentencing Range Upheld

Washington ISRB Departure from Standard Sentencing Range Upheld

The Washington Supreme Court has affirmed the State Indeterminate Sentence Review Board's (ISRB) extension of a sex offender's sentence beyond the standard range under the state's Sentencing Reform Act (SRA). Chapter 9.94A RCW.

In 2002 Lincoln Addleman had served 23 years of a life sentence for a 1979 First Degree Statutory Rape conviction. Even so, the ISRB extended his sentence by 14 years. Addleman then sought relief in a Personal Restraint Petition (PRP), arguing that the ISRB abused its discretion by extending his sentence.

Until 1981, Washington trial courts sentenced felons to the statutory maximum for the crime they committed. The parole board (now the ISRB) then set the prisoner's minimum term. RCW 9.95.100 required the parole board not to grant parole to a prisoner it had not found to be rehabilitated.

In 1981, the legislature enacted the SRA, which required trial courts to set felons' minimum and maximum terms, without ISRB involvement, based on a grid that establishes standard range sentences. Trial courts are required to impose a standard range sentence under the grid unless aggravating factors exist.

The legislature tried to achieve consistency ...

Misidentification Requires Washington Jail Officials Take Reasonable Steps to Confirm Identity

The Washington State Supreme Court has held jail personnel have a duty to take steps to promptly release a detainee once they know or should know, based on information provided to them that the person they are holding is not the person named in an arrest warrant.

This matter was before the Court in consolidated appeals resulting from lawsuits filed by two persons arrested by warrant and held in the Pierce County Jail in Tacoma, Washington. The Pierce County Superior Court granted jail officials summary judgment. The Division Two Court of Appeals reversed the orders granting summary judgment on the negligence and false imprisonment claims, but affirmed dismissal of the 42 U.S.C. § 1983 claim. See: Statler v. State, 113 Wa.App. 1, 51 P.3d 837 (2002).

The Supreme Court found that Kevin Lee Statler was arrested by a Washington State Patrol trooper under a Pierce County warrant issued for Robert John Statler, which listed, "Kevin Lee Statler" as an alias. Kevin adamantly asserted he was not the person named in the warrant. His physical appearance differed from the individual described in the warrant by 27 pounds, four inches in height, three years in birth date and eye ...

Texas Supreme Court clarifies Procedures For Civil Court Prisoner Appearances

Texas Supreme Court Clarifies Procedures For Civil Court Prisoner Appearances

by Matthew T. Clarke

The Supreme Court of Texas recently clarified the procedures a prisoner must follow to secure the right to personally appear in a civil court proceeding. In doing so, it partially overruled most of the case law on the issue.

The Texas Attorney General filed suit to establish the parent-child relationship between Zeb Lee Thompson, a Texas state prisoner, and three minor children. Thompson filed a pro se motion for a bench warrant (also referred to as an application for a writ of habeas corpus ad testificandum). The motion wasn't ruled on. Trial was held in Thompson's absence. The trial court entered an order establishing the parent-child relationship, requiring child support of Thompson and setting visitation. Thompson appealed.

The en banc court of appeals reversed the case, holding that the trial court abused its discretion by failing to rule en the mention before trial. In re Z.L.T. , 82 S.W.3d 100 (Tex.App. San Antonio 2002) [ PLN , Nov. 2003, p. 24]. The state appealed to the Supreme Court of Texas.

The Supreme Court of Texas held that, although prisoners have a limited ...

Uprisings at CCA Prisons Reveal Weaknesses in Out-of-State Imprisonment Policies

by Matthew T. Clarke

States strapped by tight budgets and pressed by a swell of prisoners are faced with the Hobson's choice of releasing prisoners early to ease overcrowding or building prisons they can ill afford to construct and staff. Private prison corporations seem to offer a third choice. They claim to be able to house the state's excess prisoners without the substantial outlay of capital required to build prisons and at a lower cost of incarceration than the government can manage.

How do private prison corporations achieve this miracle of modern capitalism? By running a much more efficient operation than is possible with moribund state bureaucracies say private prison proponents. Opponents of private prisons reply that the savings are achieved by locating prisons in distant states with distressed labor markets and cutting the number of employees, union busting, slashing employee salaries and benefits, and the quality and/or quantity of food, medical care, and programs offered prisoners, as well as by plain, old-fashioned cooking the books. Regardless of the quality of programs and services offered, relocating prisoners to prisons in distant states traumatizes them and their families, making communication and visitation difficult and expensive, if not impossible ...

Colorado DOC Report: CCA At Fault for Crowley Uprising

by Matthew T. Clarke

On October 12, 2004, the Colorado Department of Corrections (DOC) issued an extensive, 179-page After Action Report on the July 20, 2004, riot at the Crowley County Correctional Facility (CCCF) which is run by Corrections Corporation of America (CCA). The report places most of the blame on CCA, citing understaffing, inexperienced staff, lack of staff training, and a delayed response to the initial prisoner disturbance as the main reasons the relatively minor disturbance grew into a major riot.

The most important recommendations in the report for CCCF are improved emergency plans and increased emergency procedures training, clarification of lines of authority and command structure, additional authority for local administrators, improving relationships with local law enforcement, renovating cells using more resilient construction materials, improving staffing, and reporting staff shortages to the DOC. Also recommended was more private prison monitors and giving the DOC the ability to make private prisons comply with Colorado DOC standards.

There were only 33 guards at the prison the day of the riot. This represents only one guard for every 33 of the prison's 1,122 prisoners and contrasts strongly with the DOC's ratio of one guard for every five prisoners ...

City Settles In Death of Prisoner at CCA-Operated Tulsa Jail

The City of Tulsa, Oklahoma, has agreed to settle its part in a federal lawsuit over the death of a Native American prisoner in the Tulsa Jail. According to the November 7, 2003 settlement, the city will pay the man's family $200,000 and improve its police training program.

Shane Spencer, 27, was arrested by Tulsa police on the evening of October 24, 2001. Sometime after midnight a surveillance camera recorded police as they dragged the inebriated man into the jail and deposited his limp body face-down on the lobby floor. Left unattended by jail staff, he soon died. The troubled jail is operated on contract by the for profit Corrections Corporation of America.

As part of the settlement, police will be trained in how to recognize alcohol poisoning, and how to restrain intoxicated prisoners without suffocating them, said attorney Chris Davis, who represented the family.

"This is the result that we wanted," he said. "This case was never about the money. It was about making sure that what happened to Shane Spencer will never happen to anybody else."

Corrections Corporation of America, which operates the jail, was not part the settlement and is still a defendant in the ...

Kansas Supreme Court Upholds Gift Subscription Ban

The Kansas Supreme Court ruled that the Kansas Department of Corrections' (KDOC) rule IMPP 11-101, which prohibits prisoners from receiving gift subscriptions to magazines and newspapers, does not violate the prisoners' constitutional rights under the First Amendment.

Reversing the Kansas Court of Appeals' decision contra in Rice v. Kansas, 76 P.3d 1048 ( Kan. App. 2003) [which had reversed the District Court's ruling below that upheld the ban], the Supreme Court applied the familiar four-part test of Turner v. Safley, 482 U.S. 78 (1987) to determine that KDOC had a legitimate penological interest in banning gift subscriptions and that the complaining prisoners, while inconvenienced and constrained in this regard, were not being denied access to the media.

But as reported extensively earlier (see: PLN, April 2004, p.6), at the same time the Kansas state appellate court disapproved the ban, the United States District Court in an independent action (Zimmerman v. Simmons, 260 F.Supp.2d 1077 (D. Kans. 2003)) upheld the ban. Since the latter case focused on a ban of Prison Legal News, PLN took an appeal (sub. nom. PLN v. Simmons) to the Tenth Circuit U.S. Court of Appeals. That court heard oral arguments ...

Non-Contact Visits for Pennsylvania Sex Offenders Upheld

The Pennsylvania Court of Appeals held that a convicted sex offender confined at the State Correctional Institution at Waymart (SCI-Waymart) did not have a right to contact visits with minor children.

Jeffrey Garber, a prisoner of the Pennsylvania Department of Corrections (PDOC) filed a Petition for Review, challenging the constitutionality of PDOC Policy DC-ADM-812, which prohibits contact visits between convicted sex offenders and minor children. Under the Policy, Garber is permitted only non-contact visits with minors, including family members.

The court agreed with the PDOC that Garber's petition should be treated as a mandamus action, thereby imposing upon him the "threshold burden" of establishing a clear legal right to relief.

The court ultimately concluded that "[b]ecause Garber cannot show a clear legal right to the relief requested, we agree with the Department that Garber has failed to state a cause of action." In doing so, the court explained that the relevant "question . . . is whether the Department is obligated to provide sex offenders contact visitation with minor children."

The court rejected Garber's argument that the Court should follow the reasonable relationship test of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), concluding that Garber ...

Total Confinement: Madness and Reason in the Maximum Security Prison

Total Confinement: Madness and Reason
in the Maximum Security Prison

by Lorna A. Rhodes, University of California Press, 2004 (329 pages, $19.95).

Reviewed by David C. Fathi

Like chain gangs and boot camps before them, "supermax" prisons were a raging fad in the 1990syet another round in the perpetual "tough on crime" political bidding war. By one count, more than thirty states were operating a "supermax" facility or unit by 1999. Some were freestanding prisons; the state of Washington, however, built a number of smaller "intensive management units" (IMUs) within larger facilities.

Lorna Rhodes, a professor of anthropology at the University of Washington, conducted a three-year study of Washington's IMUs as part of the University of Washington/Department of Corrections Correctional Mental Health Collaboration. She attended meetings, classes, hearings, and other prison events, and conducted extensive interviews with prisoners and staff.

Rhodes' description of these units will not be news to those who follow prison issues. Through the work of psychiatrists like Terry Kupers and Stuart Grassian, reports from human rights organizations, and accounts that have emerged from litigation, the extreme sensory deprivation and social isolation that characterize supermax confinement have become depressingly familiar. But for a more ...

Gang Validation in Retaliation for Filing Grievances Is Actionable

The Ninth Circuit U.S. Court of Appeals held that a state prisoner stated a valid claim under the First Amendment when he claimed that in retaliation for his having filed several grievances, prison officials revisited previously rejected gang affiliation insinuations and now branded him a gang member.

California prisoner Vincent Bruce had been investigated by the prison Institutional Gang Investigator (IGI) in 1995 and again in 1996 for alleged association with the Black Guerilla Family (BGF), but the IGI found insufficient evidence to validate this. However, in 1998, after coming out of administrative segregation for battery, he was told he was now being gang validated upon orders from "higher-ups," expressly because he had filed numerous grievances. But the "new" validation was based only upon the old evidence that had been repeatedly found insufficient. As a validated BGF associate, he was given an indeterminate term at the Pelican Bay State Prison (supermax) Security Housing Unit.

Bruce's 42 U.S.C. § 1983 suit against prison officials was decided against him in U.S. District Court (N.D. Cal.) on summary judgment. On appeal, he claimed denial of due process because of lack of evidence, and denial of equal protection on ...

Verdict for Other Defendants Cannot Negate Jury Question of Warden's Liability in Transsexual's Assault

Section 1983 May Be Used To Challenge Disciplinary Hearings Not Affecting Total Length of Confinement

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals joined four other circuits in holding that when challenging the procedure or result of a prison disciplinary hearing, one may utilize 42 U.S.C. § 1983 if the relief sought would not necessarily affect the total length of one's confinement. It is not necessary in such a case to first obtain a "favorable termination" of the hearing result by winning a writ of habeas corpus.

Luis Ramirez, a California prisoner at Corcoran State Prison, was found guilty in a September, 1997 prison disciplinary hearing of battery on his cellmate with a weapon, resulting in serious bodily injury for which he was sentenced to 24 months in administrative segregation. At his hearing, he was denied his request to call his cellmate and attending medical staff as witnesses. His two administrative appeals were denied.

Ramirez sued Warden George Galaza, Appeals Chief Linda Melching and other prison officials in U.S. District Court (E.D. CA) under § 1983 for damages, declaratory relief and injunctive relief, alleging that the procedures used violated his constitutional rights of ...

Illinois ETS Injury Claim Allowed To Proceed; Out-of-State Legal Materials Ordered Provided

by John K Dannenberg

Resolving two distinct complaints of an Illinois state prisoner, the Seventh Circuit U.S. Court of Appeals ruled that (1) where injury from ETS [second-hand cigarette smoke] was alleged at one prison, transfer to another prison with the same problem did not provide the state with a mootness defense, and (2) for so long as an Illinois prisoner's classification status and privilege restrictions remained elevated due to an old, un-prosecuted Maryland indictment, Illinois was constitutionally obligated to provide the prisoner with Maryland legal materials to accommodate his access to Maryland courts to attack that indictment.

Illinois state prisoner Donald Lehn is an unusually qualified prisoner to bring a 42 U.S.C. § 1983 action claiming Eighth Amendment injury from exposure to second-hand smoke. Holding a Ph.D. in biochemistry, Lehn did research in carcinogenic materials at the National Cancer Institute, affiliated with the National Institutes of Health in Bethesda, MD.

In his four years at the Big Muddy River Correctional Center (BMR), he was repeatedly denied his requests for a non-smoking cellmate. Alleging ETS injury of headaches and nausea, and after filing unsuccessful grievances, he finally sued in U.S. District Court (S.D. Ill ...

Public and Press Have First Amendment Right to Access Court Docket Sheets

by David M. Reutter

The Second Circuit Court of Appeals has held that the public and press enjoy a qualified First Amendment right of access to court docket sheets. This case was filed by the Hartford Courant and The Connecticut Law Tribune, challenging the Connecticut state court system's practice of sealing cases and hiding their existence from the public and press. PLN previously reported the filing of this action. [PLN, December 2003, pg. 1].

Between 2002 and 2003, the newspapers learned that, over the prior 38 years, the Connecticut state court system had adjudicated what appeared to be thousands of cases where sealing procedures prohibited court personnel from allowing the public to access the files in those proceedings and, in certain comparatively rare instances, from acknowledging the existence of these case altogether.

Some of the cases were sealed pursuant to a variety of statutory authorizations, including those directed at protecting juvenile offenders or involving bar grievance procedures. On February 9, 2003, The Hartford Courant published an account that insinuated that judges selectively sealed divorce, paternity, and other cases involving fellow judges, celebrities and wealthy CEOs at the behest of these prominent individuals.

The Connecticut General Assembly began an investigation ...

Prisoner Stated Deliberate Indifference Claim, But Summary Judgment Denial Reversed

Prisoner Stated Deliberate Indifference Claim, but Summary Judgment Denial Reversed

In a case with a long, unusual procedural history, the U.S. Sixth Circuit Court of Appeals affirmed a federal district court's denial of prison officials' motion to dismiss for failure to state a claim in a prisoner's civil rights complaint of deliberate indifference to his serious medical needs. The appeals court held, however, that the district court incorrectly deferred its decision on officials' summary judgment motion.

Robert N. Wallin was incarcerated at the Southern Michigan Prison from March 4, 1986, to February 18, 1988. He sued various prison officials in 1990 under 42 U.S.C. § 1983, claiming that they were deliberately indifferent to his serious medical needs. The case was inactive for eight years, then was reopened in September 2000. Wallin filed four amended complaints, and several defendants were dismissed.

The remaining defendants filed a motion to dismiss for failure to state a claim, Fed.R.Civ.Proc. 12(b) (6), and a motion for summary judgment on grounds of qualified immunity, Fed.R.Civ. Proc. 56. The district court ruled that Wallin stated a claim for relief. The court deferred ruling on the defendants' summary ...

Verdict for Other Defendants Cannot Negate Jury Question of Warden's Liability in Transsexual's Assault

The Sixth Circuit Court of Appeals held a warden may be found to be deliberately indifferent to a male-to-female transsexual prisoner's safety where the prisoner was housed in the Protective Custody Unit (PCU) with a predatory prisoner. Traci Greene, a prisoner at Ohio's Warren Correctional Institution, was preoperative, but still displayed female characteristics, including developed breasts and a female demeanor, and was undergoing hormone therapy.

Because of the female appearance, Greene was placed in the PCU. In July 1996, a second prisoner in the PCAU, Hiawatha Fezzel, assaulted Greene on several occasions, culminating a severe attack on July 12 in which Fezzel beat Greene with a mop handle and then struck her with a fifty-pound fire extinguisher.

Warden Anthony J. Brigano moved for summary judgment, which the Ohio federal district court granted. At the same time that Court denied summary judgment to three other defendants. Those defendants appealed, resulting in affirmance of the denial for two defendants and reversal for one. A jury trial ensued, rendering a verdict in favor of the remaining defendants. See: DOC v. Bowles, 254 F. 3d 617 (6th Cir. 2001) [PLN Sep. 2002]. After entry of final judgment, Greene appealed the summary judgment ...

News in Brief

News in Brief:

Afghanistan: On December 17, 2004, troops of the American puppet regime stormed the Pul-e Charkhi jail in Kabul where four prisoners, three Pakistanis and an Iraqi, had attempted to escape by killing and disarming a jail guard and using his automatic rifle to escape the prison. The four prisoners and four guards were killed in the escape attempt and an additional three soldiers, three policemen and two prisoners were wounded in the ensuing ten hour gun battle. The prisoners had originally been captured by U.S. forces and accused of fighting on behalf of the Taliban. They were eventually released and later arrested on unspecified criminal charges before the current escape attempt.

Brazil: On December 15, 2004, six guards at Rio de Janeiro's Ary Franco prison were convicted of torturing Chinese businessman Chan Kim Chan, 46, to death. Chan had been arrested and was in the jail for attempting to leave Brazil with $30,000 in undeclared cash. The guards apparently wanted to know if he had more money. The guards were each sentenced to 18 years in prison. Three prisoners who assisted in the torture were sentenced to 13 years in prison. Chan was beaten ...

Arizona Adopts Favorable Termination Rule in Attorney Malpractice Suits

The Arizona Supreme Court has ruled that a cause of action accrues for attorney malpractice on the date the case is finalized in favor of the defendant because of the attorney's ineffective assistance. This rule is called the favorable termination rule, and is employed by many states.

James R. Glaze, an Arizona man, was convicted by a jury of sexual abuse and sentenced to one year of probation. His conviction was affirmed on appeal in 1997. Glaze was represented at trial and on appeal by an attorney named Eric A. Larson.

Glaze later filed a petition for post conviction relief, contending that Larson provided him ineffective assistance at trial by not requesting a jury instruction for lack of sexual motivation. The superior court dismissed the petition, but the court of appeals reversed on September 30, 1998. On remand, the superior court found Larson to have been ineffective during Glaze's trial and dismissed the charges against Glaze with prejudice on July 6, 1999.

On December 14, 2000 Glaze filed a civil legal malpractice suit against Larson. The superior court dismissed the suit as barred by the 2 year statute of limitations. The court took that position believing that Glaze ...

 

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