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Prisoner Education Guide

Prison Legal News: November, 1992

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Volume 3, Number 11

In this issue:

  1. Status of Reformatory Crowding Litigation (p 1)
  2. Grievance Standards Changed (p 1)
  3. Overcrowding and Violence in Washington State (p 2)
  4. Parolees Have a Right to Bodily Privacy (p 3)
  5. Transferred Con Has Right to Books of Sending State (p 3)
  6. Prisoners Have Right to Privacy in Their Mail (p 3)
  7. Medication Must Be Delivered in Timely Manner (p 4)
  8. Contempt Order Appropriate for Consent Decree Violation (p 4)
  9. Expungement of Infraction Reversed (p 4)
  10. Federal Prisoners Must Exhaust Habeas Before Filing Suit (p 4)
  11. State Judges Can Be Sued for Injunctive Relief in Federal Court (p 5)
  12. Parole Officers Can Be Sued (p 5)
  13. BOP Prisoners Must Exhaust Administrative Remedies (p 5)
  14. Washington Smoking Suit Dismissed (p 6)
  15. Muslims Entitled to Prayer Oils (p 6)
  16. Gay Prisoner Entitled to Participate in Religious Services (p 6)
  17. Resistance at Lexington (p 7)
  18. Editorial (p 8)
  19. Committee Formed to Defend Abimael Guzman (p 8)
  20. Walla Walla News (p 9)
  21. Perotti Needs Help (p 9)

Status of Reformatory Crowding Litigation

In 1981 prisoners at the Washington State Reformatory in Monroe entered into a consent decree with the state over the issue of double celling. The original complaint, filed by Evergreen Legal Services for Reformatory prisoners back in 1978, alleged a number of constitutional violations flowing either directly or indirectly from overcrowding at the institution. Yet prisoners put aside many of the specific violations being alleged and settled for a consent decree that would, within a given number of years, result in single celling.

Before the ink was dry on the agreement the state was hard at work trying to sleaze out from under it. Implementation extensions were sought by the state and routinely granted by the courts. Finally, when the state had so many extra beds they rented out 200 of them to the feds and still refused to comply with the consent decree, Evergreen's Bob Stalker filed a motion that resulted in an order mandating single celling. That was several years ago, and ever since the Reformatory has been single bunked. During all of this period, over the years, the state has been in the courts trying to set aside the agreement they had entered into. Today I ...

Grievance Standards Changed

The Justice Department has modified the minimum standards for state prison inmates grievance procedures promulgated by the US Attorney General pursuant to § 7 of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. The amendment is designed to clarify that the regulations do not require that prisoners sit on panels adjudicating other prisoners' grievances. 57 Federal Register 38773 (No. 167).

Overcrowding and Violence in Washington State

Back in 1985 I wrote an article predicting the future impact of Washington State's then recently adopted Sentencing Reform Act (SRA). The article noted that there would be an initial drop in prison populations, followed by a rapid increase until population levels were once again beyond what could be reasonably tolerated. The piece went on to note that because of the SRA's focus on violent offenders, the people making up these increases will largely be young men from minority communities in urban areas of the state. This was because the poorest and most oppressed segments of society are the most desperate, and thus more likely to employ violence during the commission of an offense. Indeed, how many young ghetto residents have the option of committing nice clean crimes such as the recent savings and loan swindle? Whereas the pre-SRA sentencing system was racist by virtue of the individual prejudices of judges and paroling authorities, the racism of the present system is more rooted in the economic inequalities of capitalism. Given this mix of prisons overcrowded with young minorities, the article said, the future for prison stability will be bleak and short lived. This analysis has withstood the test ...

Parolees Have a Right to Bodily Privacy

Parolees Have A Right To Bodily Privacy

Afemale parolee in California was ordered to provide a urine sample for drug testing by a male parole officer. While she was in a bathroom stall providing the sample, the male parole officer entered the stall and stayed there until Sepulveda, the parolee, had finished urinating, cleaned herself and dressed. Sepulveda filed suit under section 1983 claiming her constitutional right to bodily privacy had been violated. The parole officer filed for summary judgement on qualified immunity grounds. The district court denied the motion and on an interlocutory appeal the Court of Appeals for the Ninth Circuit affirmed the lower court.

The Court of Appeals held that the law is clearly established that parolees and convicted prisoners retain a right to bodily privacy that includes not being directly observed by a member of the opposite sex while performing excretory functions. The court relied primarily on previous cases involving prisoners to reach this conclusion. It notes that parolees have greater rights than prisoners do.

In upholding the denial of qualified immunity, the court held that no reasonable parole officer could have believed such behavior was reasonable or lawful, and stated that such behavior ran "contrary ...

Transferred Con Has Right to Books of Sending State

AUtah prisoner was subjected to what he claimed was an involuntary out-of-state transfer to an Arizona prison. The transferred prisoner filed a pro se habeas corpus petition in Superior Court of Arizona seeking, inter alia , access to legal research materials of the sending state, and trying to secure his return to Utah. Arizona's Department of Corrections (DOC) filed a motion to dismiss the habeas petition, and the Superior Court went along with the state's request and dismissed the petition. The inmate appealed to the Arizona Court of Appeals, where the lower court was reversed.

The appeals court stated the well-settled principle that "[w]hen the prisoner asserts a prima facie claim of lack of access to the courts, the ultimate burden of proving adequate access falls to the state. Petitioner made a prima facie claim when he raised claims in an Arizona court which are controlled by Utah law and which must be asserted in Utah courts, and asserted that he had been denied access to any Utah legal materials." (834) Arizona's DOC tried to get around the principle by arguing that it was Utah, not them, who had the duty to meet that affirmative obligation. But ...

Prisoners Have Right to Privacy in Their Mail

Prisoners Have Right to Privacy in their Mail

David Jolivet is a Utah state prisoner who married Dorothy Pacheco, a member of a prisoner rights group named "Pepper". Prior to marrying Jolivet, Pacheco had been married to another Utah prisoner named Stevenson. Craig Rasmussen is an investigator with the Utah ...

Medication Must Be Delivered in Timely Manner

Medication Must be Delivered in Timely Manner

Raymond Aswegan is a 70 year old Iowa state prisoner serving a life sentence at the Iowa State Penitentiary. Aswegan has numerous health problems including coronary artery disease, arthritis, obstructive pulmonary disease and a history of heart attacks. He filed suit claiming prison ...

Contempt Order Appropriate for Consent Decree Violation

Contempt Order Appropriate For Consent Decree Violation

In 1978 San Francisco jail prisoners filed suit over jail conditions. In 1982 the parties entered into a consent decree that included a limit on the number of prisoners that could be housed in the jail. Over the years the district court entered several contempt orders against the defendants for violating this part of the decree. The district court authorized the sheriff, in violation of state law, to release prisoners early, placing them on home release, work release, etc.

The Ninth Circuit Court of Appeals affirmed the finding of contempt but vacated the portion of the district court's order expanding the sheriff's early release authority.

The court gives an extensive discussion of the differences between consent decrees and injunctions for purposes of contempt motions designed to secure compliance with either. The court notes that good faith is irrelevant for purposes of contempt motions. In this case the city had ample notice of its overcrowding problem at the jail but did not take adequate steps to address the problem. The constitutional standards affecting the prisoners are also irrelevant because the defendants consented to improve jail conditions by imposing a population cap. The ...

Expungement of Infraction Reversed

Michael Elkin is a New Jersey state prisoner. During the process of obtaining and testing a urine sample from Elkin, prison officials did not comply with the terms of a consent decree requiring urine samples to have a "continuity of evidence" attached and completed. Elkin was infracted for having opiates ...

Federal Prisoners Must Exhaust Habeas Before Filing Suit

Federal Prisoners must Exhaust Habeas Before Filing Suit

Amilcar Marchetti is a federal prisoner who filed a Bivens civil rights suit against various state and federal law enforcement agencies and officials. He complained that his civil rights were violated by the government manufacturing false evidence and suborning perjury to secure his conviction. The district court stayed the suit until Marchetti had exhausted his habeas corpus remedies. He appealed the decision and the Ninth Circuit Court of Appeals affirmed.

As a preliminary matter the court of appeals held that it has jurisdiction to review stays of civil rights actions under its "collateral order" exception to the general rule that only final judgements disposing of civil actions on their merits will be reviewed by the court of appeals. Stays of civil rights suits are immediately appealable to the court of appeals.

This case announces the rule that in the Ninth Circuit, concurring with the Fifth and Eleventh Circuits on this issue, federal prisoners must first exhaust their habeas corpus remedies before they can file a civil rights action seeking money damages and injunctive relief contesting the constitutionality of their convictions. See: Marchetti v. Bitterolf , 968 F.2d 963 (9th Cir. 1992).

State Judges Can Be Sued for Injunctive Relief in Federal Court

State Judges Can be Sued for Injunctive Relief in Federal Court

Carrol Olson is a Kansas state probationer convicted of issuing a worthless check. Olson sought to appeal his conviction in the Kansas Court of Appeals. The state court of appeals was unable to hear his appeal because it lacked jurisdiction to do so. In order for the court of appeals to have jurisdiction to hear the appeal the trial court had to submit a journal entry of sentencing. The trial court refused to sign the journal entry.

Olson petitioned the Kansas state Supreme Court for an order of mandamus to force the judge to sign the sentencing journal. The state Supreme Court denied the petition without opinion.

Olson then requested In Forma Pauperis (IFP) status to proceed in the U.S. District Court in Kansas without paying the filing fees. Without opinion the district court denied the request for IFP status. On appeal the Court of Appeals for the Tenth Circuit remanded the case to the district court for a statement of the reasons it had denied IFP status. The district court stated it had denied IFP status because it viewed the petition for mandamus as a matter within ...

Parole Officers Can Be Sued

Stephen Mee was a Colorado parolee whose parole was revoked by Jose Ortega, his parole officer, for alleged harassment. Ortega kept Mee in jail despite being told by the local prosecutor that because no violation of criminal law had occurred, Mee could not be kept in jail. Despite this advice Ortega kept Mee in jail pending the parole revocation hearing. A state court denied Mee's petition for habeas corpus on the basis of Ortega's testimony that a prosecutor he could not name would be revoking Mee's parole. The parole board chose not to revoke Mee's parole and released him.

Mee filed suit under § 1983 claiming his constitutional rights had been violated by Ortega holding him in jail prior to his hearing and by committing perjury at the state habeas hearing. The district court dismissed the suit holding parole officers are absolutely immune from suit. On appeal the Tenth Circuit Court of Appeals affirmed in part and reversed in part.

The court of appeals held that parole officers are not entitled to absolute immunity. They are entitled only to the qualified immunity that protects most government officials from suits for money damages. The court gives a lengthy ...

BOP Prisoners Must Exhaust Administrative Remedies

PLN recently reported the U.S. Supreme Court decision in McCarthy v. Madigan , 503 US ___, 112 S.Ct. 1081 (1992), which held that federal prisoners did not have to exhaust administrative remedies (the grievance system) prior to filing suit in federal court. In McCarthy a Bureau of Prisons (BOP) prisoner sought only money damages for violation of his constitutional rights.

William Irwin is a federal prisoner who filed suit claiming violation of his constitutional rights and the Racketeering Influenced and Corrupt Organizations (RICO) Act by BOP officials. Irwin claims BOP officials conspired to cause him to fail in legal proceedings, denied him access to witnesses and legal materials for those proceedings and were deliberately indifferent to his medical needs. Irwin seeks money damages and injunctive relief from the court. The BOP moved to dismiss the case on the grounds that Irwin had not exhausted his administrative remedies.

District Judge Alaimo granted the governments motion by interpreting McCarthy to require exhaustion of administrative remedies where a prisoner seeks injunctive relief. The court holds that the institutional interest in giving the BOP an opportunity to correct its own errors outweighs a prisoners individual interest in a prompt judicial hearing of his ...

Washington Smoking Suit Dismissed

Ronald Guilmet is a Washington state prisoner at Walla Walla. Guilmet does not smoke and a smoker was placed in his cell. Five days later Guilmet complained to the unit sergeant that cigarette smoke bothered him. About five days after this Guilmet was assigned a non-smoking cellmate. Guilmet filed suit claiming that his eighth amendment rights had been violated by his exposure to Environmental Tobacco Smoke (ETS). District Judge Van Sickle granted the defendant's motion for summary judgment and dismissed the suit.

The court notes that in the Ninth Circuit compelled exposure to ETS violates a prisoner's Eighth amendment rights if prison officials repeatedly deny a prisoner's request to be moved out of a cell occupied by a heavy smoker.

The court held that because Guilmet was moved in with a non-smoker within ten days of complaining about his cellmate's smoking, no eighth amendment violation had occurred, as a short delay does not show deliberate indifference to a prisoner's medical needs. The court implies that had prison officials delayed moving Guilmet longer the outcome of this case would have been different. See: Guilmet v. Knight , 792 F. Supp. 93 (ED WA 1992).

Muslims Entitled to Prayer Oils

Three Michigan state prisoners at the Jackson State Prison filed suit under section 1983 claiming that a policy banning all use of prayer oils to Muslim prisoners violated their first amendment rights. The district court appointed counsel to represent the prisoners. Both parties moved for summary judgement and the district court denied both motions.

The court held that the policy totally banning prayer oils was unconstitutional. The court noted that other Michigan prisons allowed prayer oils, that the inmate store at Jackson sold various oils and lotions as well as light bulbs and glass mirrors.

The court denied prison officials qualified immunity by holding the unconstitutionality of the prayer oil ban was readily apparent in 1988, when it occurred, even though no case law specifically allowed prayer oil in prison. Because so many alternatives were available to provide prayer oil to prisoners the total ban was clearly unreasonable. The district court set a trial date to resolve remaining disputed issues of fact and damages. See: Munis v. Scott , 792 F. Supp 1472 (ED MI 1992).

Gay Prisoner Entitled to Participate in Religious Services

Paul Phelps is a gay Kentucky state prisoner who sued a volunteer prison chaplain and deputy warden claiming they had violated his first amendment right to practice his religion when they refused to allow him to participate in chapel services. The district court granted summary judgment to the defendants at 770 F.Supp. 346. The Court of Appeals for the Sixth Circuit reversed and remanded the case to the lower court for trial.

Phelps had uneventfully attended christian services in the prison chapel for over a year. During this period he sang in the chapel choir and as a soloist, was the chapel janitor and gave testimony at services. The regular prison chaplain, Polk, knew Phelps was gay and did not object to his participation. When Polk went on vacation a volunteer prison chaplain, Edwards, took over the chapel operation. Edwards believes homosexuality is incompatible with christianity and banned Phelps from the chapel and from attending services. Phelps filed an administrative grievance which the warden granted in his favor. Despite this, the deputy warden and Edwards still did not allow Phelps to attend chapel services. Phelps alleges that after winning his grievance he was subjected to retaliatory harassment, threats and ...

Resistance at Lexington

On August 12-14, the first sustained act of resistance by women prisoners in the u.s. federal prison system in 20 years took place.

On Wednesday night, August 12, there was an argument between two prisoners in the central yard area ("Central Park") at about 8:30. It was over quickly, and everyone was walking away, towards the housing units, because we have to be inside at 9:00. A lieutenant came over running to see what had happened -- pulling on his black leather gloves. He yelled, "Hey, you! Stop!" When no one stopped, he grabbed the first Black woman he saw, lifted her in the air, and body-slammed her to the ground. Other women yelled at him that she wasn't even involved in the argument, but he kept on attacking her, dragged her to her feet, and another guard took her to the lieutenant's office.

This was witnessed by about 100 women. They were all very upset by it, and they gathered to talk to the Captain. At 9:00, all but about 15 returned to their housing units, after being assured that the beaten woman would be released back into general population, and that a thorough ...


Editorial Comments

by Ed Mead

It's evidently necessary for us to repeat some messages every so often. Our increasing readership turnover is such that we will always have new groups of convicts to educate. And educating folks is what we're all about. Anyway, this month's "message rerun" will be to re-emphasize that Paul and I don't do legal work for our readers. In particular, we do not do prisoner's personal criminal cases or appeals. Search the pages of the PLN as you will, you won't find any criminal law citations. We're about political and civil rights for prisoners. We are not about trying the secure some form of judicial vindication for you in the courts (we've got more sense than to expect something so unrealistic as "justice" for the masses of poor people).

So please, dear readers, don't send us those letters explaining the particular injustices surrounding your individual imprisonment, and asking us to assist you in rectifying this terrible wrong. We don't have the time or inclination to do so. Paul and I are looking for people willing to give energy to the struggle to abolish slavery and to ...

Committee Formed to Defend Abimael Guzman

Abimael Guzman (also known as Chairman Gonzalo), the leader of the Communist Party of Peru, was captured by Peruvian government troops on September 14, 1992, in Lima, Peru. Mr. Guzman had been sought by government troops since 1980, when the PCP initiated the military aspect of the current people's war to liberate Peru. The Peruvian government has a long history of torturing and killing PCP members (real or accused) it captures [see PLN , Vol. 3, Nos. 4 and 9]. The Peruvian government is ranked as the leader in human rights violations involving the murder and disappearances of anti-government activists, aaaccording to human rights groups.

It is under these circumstances that the International Committee to Defend the Life of Abimael Guzman has been formed. Mr. Guzman is to be tried by a military tribunal where he faces life without parole when he is convicted of "treason". In April of this year the Peruvian government suspended its constitution and abolished its judiciary. Guzman will not receive anything close to a fair or impartial trial. The government had earlier filed murder and subversion charges against Guzman but the Supreme Court of Peru dismissed the charges for lack of evidence. This led to ...

Walla Walla News

The prison chaplain has shut down our Indian group. Stating that we are getting too political. On August 11th, 1992, he called the squad to the chapel, and they surrounded all of the Indians, and asked us to leave the area. Our "Indian" rep from Olympia won't do anything, but agree with what the prison administrators say to him. His name was Ben Stiffarm. I have a "bunch" of correspondence out on this issue. And, am waiting to hear something from anyone of them.

This prison is getting worse and worse. There's nothing but a "bunch" of youngsters here now. And, it's still really overcrowded. They've been having fights left and right. A lot of people [are] going to [the] "hole" for fighting...In the last month, there's been 10 fights or so, and three rapes, and one stabbing. I have to laugh on how they keep the officers real busy running all over the place. The officers are not in good condition either, always running out of wind before they get to their area.

K.B., Walla Walla, WA

Perotti Needs Help

John Perotti, Mansfield, OH

On August 7, 1992, MANCI prisoncrats Bill Rachael (unit manager), Terry Knight (SHP Investigator), Mr. Fleming (SHP) and Capt. Jackson and Sgt. Harrell called a prisoner named Jerome Evans to their office and made a deal that if he set me up they would get him out of AC (isolation) and to another prison. These prison officials are defendants in a class action lawsuit litigated by myself challenging overall conditions at MANCI and retaliation.

A mini-cassette recorder was secreted inside a role of toilet paper and planted outside my cell. Evans was placed in the recreation cage and unsuccessfully attempted to get me to discuss criminal activities. When this didn't work, I spotted the roll of toilet paper, pulled it into my cell and recovered the tape recorder. I removed the tape and called for a supervisor. The supervisor(Jackson) wouldn't come as he intended to cover up the incident. The guards confiscated the recorder, then, when they noticed the tape was missing, a goon squad was brought in to tear up my cell and those of all prisoners on the range with me. No tape was recovered. In retaliation all of my legal ...


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