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Prisoner Education Guide

Prison Legal News: November, 1993

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Volume 4, Number 11

In this issue:

  1. Well Established Right to Release From Control Unit (p 1)
  2. Litigation and Service Protected by First Amendment (p 1)
  3. Florida Conditions Victory Reversed (p 2)
  4. WI Ad Seg Rules Don't Create Liberty Interest (p 3)
  5. Standard for Modifying Consent Decrees Explained (p 3)
  6. Statement of Claim Must Rely Solely on Complaint (p 4)
  7. Section 1983 Not Estopped by State Court Ruling (p 4)
  8. No Right to Forfeit Goodtime (p 4)
  9. Prosecutorial Liability Explained (p 5)
  10. Seg Prisoners Entitled to Congregate for Religious Services (p 5)
  11. Chain of Custody on Urine Sample (p 6)
  12. Pages from a Jailhouse Journal (p 6)
  13. Biased Hearing Officer Violates Due Process (p 9)
  14. Lack of Shower/Bathroom Curtains Violate Privacy (p 9)
  15. Republicans Introduce Crime Bill (p 10)
  16. Editorial (p 10)
  17. Report from the Hole (p 11)
  18. Chained Detainee Wins Restraint Case (p 12)
  19. The Politics of Imprisonment (p 13)
  20. Political Prisoner Information Wanted (p 15)
  21. Brazil's Final Solution to the Crime Problem (p 15)
  22. 700 Moroccan Prisoners Escape (p 15)
  23. Stop the Forced Psychiatric Treatment of Georges Cipriani (p 15)

Well Established Right to Release From Control Unit

Well Established Right To Release From Control Unit

Harvey hall is a Missouri State prisoner. While in protective custody at the Missouri State penitentiary (MSP) Hall was found in possession of contraband and placed in the Special Management Facility (SMF). After six months in the SMF the classification committee recommended that hall be returned to protective custody, the warden" designee approved the recommendation but Hall remained in the SMF. Over the next year this process was repeated four times and yet Hall remained in SMF. Hall was eventually reassigned back to protective custody. He filed suit under § 1983 claiming that Missouri prison officials had violated his eighth and fourteenth amendment rights by failing to release him after the recommendations for release had been approved. The defendants moved for summary judgment and sought qualified immunity from damages. The district court denied both motions and the state appealed. The court of appeals for the eighth circuit affirmed the lower court ruling.

The appeals court gives a detailed discussion of the doctrine of qualified immunity which allows prison officials to "generally rely on the defense for qualified immunity to protect them from liability for civil damages." That defense fails, however, when the right ...

Litigation and Service Protected by First Amendment

Eric Schroeder is a Hawaii State prisoner. While working in the prison law library he assisted other prisoners with their legal problems. Another prisoner asked Schroeder to serve Tranquillino Mabellos, a staff education specialist at the prison, with a summons and complaint in a civil action. Schroeder agreed and served Mabellos in Mabellos' office. Mabellos ordered him to retrieve the summons which Schroeder refused to do and walked away. The next day Schroeder was suspended form his law library job. Mabellos infracted Schroeder for refusing to obey an order (not recalling the summons), lying to staff and that his possession of the summons was unauthorized. Schroeder was found guilty of the first charge and not guilty of the others and sentenced to 14 days of segregation. Schroeder filed suit claiming that the actions were in retaliation for his having engaged in constitutionally protected activities.

The district court notes that assisting another person in litigation is a form of expression and association protected by the first amendment which prisoners still retain. Service of process is also an expressive act protected by the first amendment. The court notes that Fed.R.Civ.P.4 and Benny v. Pipes, 799 F.2d 489 ...

Florida Conditions Victory Reversed

This 42 U.S.C. § 1983 case was initiated by ten present and former prisoners at Glades Correctional Institution (GCI) in Florida. They sought money damages and injunctive relief for cruel and unusual punishment and other unconstitutional conditions of confinement. The district court held a trial and granted damages and issued the requested injunction in favor of the prisoners. The state appealed to the U.S. court of appeals for the eleventh circuit, which reversed the lower court and remanded the case for a new trial.

On May 14, 1982, Anthony LaMarca filed a hand-written pro se complaint in the U.S. district court stating he had been countlessly approached, threatened with physical violence and assaulted by other inmates at GCI because he refused to participate in homosexual activities, or to pay protection to be left alone. He alleged that "a severe lack of protection" existed at GCI and "the institution seemed unable or unwilling to handle the situation." The complaint was subsequently amended to, among other things, add more prisoner plaintiffs who had been raped or assaulted at Glades.

On July 16, 1981, then warden Turner wrote a letter to his superior in which he described the prevailing atmosphere ...

WI Ad Seg Rules Don't Create Liberty Interest

Wisconsin regulations governing the transfer of state prisoners to "temporary lockup" status do not create a protected liberty interest under the fourteenth amendment due process clause, a majority of the Wisconsin supreme court ruled June 3, 1993. The majority agreed with Smith v. Shettle , 946 F.2d 1250 (7 th Cir. 1991), that a statute that permits, but does no specifically require, administrative segregation may nonetheless be sufficiently "mandatory" to create a protected liberty interest. Nevertheless, the majority identified a feature of Wisconsin Administrative Code Section DOC 303.11 that precludes due process scrutiny. The regulation does not sufficiently confine the discretion of prison officials to create a protected interest, the court said, because under it an inmate may be segregated based merely on an official's subjective belief that certain conditions are met; "it is not dependent on the realities of the situation." Because a prisoner's rights are "in no way dependent on the realities of the situation, but only upon the perceptions of the officers, Russ v. Young , 895 F.2d 1149 (7 th Cir. 1990), Section DOC 303.11 does not create a protected liberty interest," the majority held. Dissenting on this point, Justice Abrahamson, joined ...

Standard for Modifying Consent Decrees Explained

Standard For Modifying Consent Decrees Explained

In 1976 prisoners in the Hamilton County, OH, jail filed suit challenging their conditions of confinement. The parties entered into a consent decree which settled all claims. Within five weeks of the decree's entry, in 1985, the jail's population began to exceed its design capacity. The plaintiffs filed a contempt motion based on the overcrowding and the use of 300 cots to accommodate the excess prisoners. The parties then negotiated another modification to the consent decree which set population caps, prohibited the use of cots and allowed some double celling of low risk prisoners.

The defendants failed to comply with these and other stipulations. In 1991 the district court on its own motion ordered a hearing why its supervision of the case shouldn't be terminated. The district court then modified the decree by lifting the population cap and expanding the categories of prisoners to be double celled. The court of appeals for the sixth circuit vacated and remanded.

The appeals court listed the facts a district court must determine in deciding whether and when to terminate jurisdiction over a consent decree. The factors include: specific terms providing for continued supervision and ...

Statement of Claim Must Rely Solely on Complaint

Scott Swoboda was a jail detainee in Doniphan County, Kansas. He filed suit under § 1983 over numerous conditions of confinement at the county jail. The district court dismissed the suit pursuant to Fed.R.Civ.12(b)(6), concluding that the lawsuit failed to state a claim upon which relief could be granted.

The court of appeals for the tenth circuit affirmed in part, reversed in part and remanded. As a preliminary matter the appeals court held that it had jurisdiction to hear the appeal even though Swoboda gave his notice of appeal to jail officials the day it was due in court. The court concluded this was sufficient because "We decline to second guess whether Swoboda, if not incarcerated, would have mailed his notice of appeal or made other efforts to insure that it was filed timely."

Addressing the merits of Swoboda's claims the court held that the lower court had correctly dismissed the jail conditions claims because Swoboda had not stated how they directly affected or harmed him and were thus conclusory allegations not entitling him to relief.

Swoboda fared better on his excessive force claim. In his suit he stated that the County sheriff "assaulted, beat ...

Section 1983 Not Estopped by State Court Ruling

Santiago Ramirez is a New York state prisoner. An informant told a prison sergeant that Ramirez had a shank concealed in his cell. Acting on this information Ramirez's cell was searched and a shank was found. Ramirez was infracted and at his disciplinary hearing he requested that the sergeant and the informant appear to answer his questions. The hearing officer denied these requests, found Ramirez guilty and sentenced him to 30 days loss of good time, 60 days in segregation and loss of phone and commissary privileges.

Ramirez brought an Article 78 proceeding in New York state supreme court. The state court annulled the disciplinary board ruling holding that the denials of his requests for the witnesses was improper. The court reinstated his lost good time but by that point Ramirez had already served the segregation time and loss of privileges. The defendants did not appeal the state court ruling.

Ramirez then filed suit under § 1983 in federal court seeking compensatory and punitive damages for the denial of his request to call witnesses at the hearing. Money damages are not available in Article 78 proceedings. He sought summary judgment based on the Article 78 ruling, by arguing that the ...

No Right to Forfeit Goodtime

Helen Woodson was a federal prisoner serving twelve years on four counts of destroying government property arising out of protests at ICBM missile sites. She is a member of the Plowshares, a Christian group that takes literally the bible's command to beat swords into plowshares (i.e., they enter military bases and attack missiles, submarines, etc., with hammers). Since Woodson has been in prison she has lost good time credits for escape, arson, destruction of government property, inciting to riot and lock tampering. She is concerned about good time credits she has accumulated and not lost. She filed suit in United States district court to forfeit all of her good time credits. Her view is that accepting good time credits, and an early release from prison, would violate her religious beliefs.

The district court granted Woodson's cross motion for summary judgment, Woodson v. U.S. Department of Justice , 770 F.Supp 25 (DC DC 1991), holding that she had a right protected by the ninth amendment to waive her good time credits. The district court ruling is premised on the theory that the ninth amendment protects the "right' to refuse privileges or rights" and one cannot be compelled ...

Prosecutorial Liability Explained

Stephen Buckley sought damages, under 42 U.S.C. § 1983, from prosecutors for fabricating evidence during the preliminary investigation of a highly publicized rape and murder case in Illinois, and for making false statements at a press conference announcing the return of an indictment against him. He claimed the prosecutors violated his rights when three separate lab studies failed to make a reliable connection between a bootprint at the murder site and his boots, and when they obtained a positive identification from on Robbins, who allegedly was known for her willingness to fabricate unreliable expert testimony. Thereafter, the prosecutors convened a grand jury for the sole purpose of investigating the murder, and 10 months later, the prosecutor announced the indictment at the news conference. Buckley was arrested and, unable to meet the bond, held in jail. Robbins provided the principle evidence against him at trial, but the jury was unable to reach a verdict. When Robbins died before Buckley's retrial, all chargers were dropped and he was released after three years of incarceration.

In the § 1983 action, the district court held that respondents were entitled to absolute immunity for the fabricated evidence claim but not for the press conference ...

Seg Prisoners Entitled to Congregate for Religious Services

Richard Salahuddin was a Muslim New York State prisoner. In 1985 he was transferred to the Sullivan Correctional Facility (SCF), which was still under construction. At the time of his transfer and during his stay at SCF he was on "keeplock" status, as were all other prisoners at the prison at that time. He requested that congregate Muslim services be held at SCF. Prison officials denied his requests and he filed suit under § 1983 claiming violation of his right to free exercise of religion.

The district court granted summary judgment to prison officials, dismissing the lawsuit, by finding that the DOC had acted reasonably in denying Salahuddin's request for congregate religious services. The court of appeals for the second circuit reversed and remanded.

The appeals court noted that prisoners have a constitutional right to participate in congregate religious services. Confinement in segregation does not deprive prisoners of this right. But these rights are not absolute. Applying the Supreme Court's test for prisoner's free exercise claims, O'Lone v. Estate of Shabazz , 482 US 342, 107 S.Ct 2400 (1987), the court held the defendants had failed to meet their burden of proof.

The court noted that SCF ...

Chain of Custody on Urine Sample

Federal courts in New York have held that due process requires a prison disciplinary body to establish a reasonably reliable chain of custody as a foundation for introducing the results of urinalysis tests into evidence at prison disciplinary hearings. This chain of custody requirement, the courts have said, mandates a continuous, physical nexus between the source of the substance in issue, the testing or analytical process to which the substance is subjected, and the proponent of the substance as real evidence.

It is from within the above legal context that Christopher McCormack used a civil rights complaint to argue that the chain of custody on his urine sample was defective and that the EMIT tests results were unreliable. McCormack had been found guilty of marijuana use at a prison disciplinary hearing. His challenge of the EMIT screening test failed by he did win the chain of custody battle. The court ruled that he should have been permitted to call a guard as a witness to explain discrepancies in the urinalysis request form, and that no valid reason for not calling the witness was given.

This is one of those borderline cases that will be of little interest to anyone other ...

Pages from a Jailhouse Journal

By Nick DiSpoldo

The present Supreme Court, led by Chief Justice William Rehnquist, has modified nearly all of the rights granted prisoners under the Warren court (1953 -- 69). Mr. Rehnquist, whom I suspect serves as technical advisor for television's Night Court , was appointed to the court in 1972 by Nixon and named Chief Justice by Reagan in 1986. Rehnquist has consistently voted against expanding prisoner rights and has sought to reconstruct the historical iron curtain that, prior to the Warren court, always existed between the constitution and the American prisoner.

It would be difficult to understand the relative regressiveness of the Rehnquist court without understanding the historical evolution of prisoners' rights.

I have structured this evolution in what I call the four R's: Revenge, Repentance, Rehabilitation, Regression.

There was a time when Dante's phrase for the gates of hell -- "Abandon hope, all ye who enter" -- would have been an appropriate inscription to have placed at the gates of America's prisons. In the eighteenth century, new York's Auburn Prison employed the "silence system"; prisoners were not permitted to even speak to one another, the Bible was the only permissible reading material and prisoners ere encouraged to ...

Biased Hearing Officer Violates Due Process

Biased hearing Officer Violates Due Process

Robert Ramirez is a federal prisoner. He had been imprisoned at the US penitentiary in Marion, IL, and had gone through that prison's transfer process and was moved to Leavenworth. While at Leavenworth Ramirez was infracted for involvement in a drug operation and was transferred back to Marion. He filed a habeas corpus petition in the district court claiming that the transfer to Marion and the discipline imposed violated his due process rights. The district court held that no due process liberty interest was at stake and dismissed the petition. The court of appeals for the seventh circuit reversed and remanded.

The appeals court rejected Ramirez's argument that his transfer to Marion violated his due process rights. The court applied the Supreme Court's ruling in Montayne v. Haymes , 427 US 236, 96 S.Ct.2543 (1976), which held that prisoners have no liberty interest as to what prison they are confined in.

Ramirez also argued that because he had "earned" his way out of Marion in 1986, that was an official decision which created a liberty interest in being housed in a less harsh environment than Marion. The appeals court rejected ...

Lack of Shower/Bathroom Curtains Violate Privacy

Douglas Arey is a Maryland State prisoner. While at a recently built pre release center he complained that the lack of shower curtains and bathroom partitions, which allowed female guards to observe his genitals, violated his right to privacy. Prison officials took no corrective action.

While Arey was using the toilet a female guard observed him from less than a foot away. Arey protested and she infracted him for insolence. She later infracted him for not having his ID badge and for having expired athlete's foot cream. Arey filed suit under § 1983 claiming that the lack of shower curtains and bathroom partitions violated his right to privacy, and that the infraction violated his right to due process.

The district court noted that prisoner "do retain some constitutional right to privacy protecting them against unnecessary exposure of their genital areas to person of the opposite sex." Weighing the factors set forth in Turner v. Safely (the supreme court tests to be used in determining if a federal court will strike down prison rules that violate constitutional rights) the court held that the design of the facility violated the prisoner's right to privacy. The state had not indicated any security ...

Republicans Introduce Crime Bill

By Paul Wright

In last month's issue of PLN , I reported on President Clinton's crime bill, which he unveiled at an August 11, 1993, press conference. It turns out that a week before this, with considerably less fanfare, Senate Minority Leader Robert Dole (R-Kansas) and House Minority Leader Michel (R-Illinois) introduced the Republican Party's anti-crime package. In many ways it mirrored the democrat's plan.

British writer Graham Greene, in referring to American politics, once commented that the republican and democratic parties were "two empty bottles with different labels." The respective crime bills introduced by each party tends to illustrate this point.

Both plans envision a massive increase in local police hiring funded by the federal government. Both bills expand the death penalty and limit appeals by death row prisoners and would limit the availability of federal habeas corpus review of state imposed convictions. Both would also promote boot camps for you prisoners using closed military bases for that purpose.

However, the major difference between the two plans is that the republicans want to significantly increase prison space and get the federal government into the prison rent a cell business. Clinton's plan does not address the ...


Editorial Comments

By Ed Mead

Welcome to another issue of Prison Legal News . This month I want to bring you up-to-date on how we have been doing with our efforts to increase our subscriber base and the number of paying readers. Since last May, every month we have been sending out sample copies of the newsletter to various groups and individuals. The number of free copies mailed each month range from a couple of hundred to well over a thousand. The results of this effort have been encouraging. We have reduced the percentage of free subscriptions from 38 to 27 percent. Whereas before less than half of our readers paid enough to cover our costs of our sending them the newsletter, today 57% have paid the amount per year it costs us to produce and mail the PLN to them. Some 16% of our subscribers pay something, less than the amount it costs us to produce and mail the newsletter to them. Most of those who pay nothing, or pay an amount less than the cost of production, are prisoners housed in control units or else locked down on death row.

The bottom line continues to be that the paper ...

Report from the Hole

Report From The Hole

By Adrian Lomax

The guard stood in the middle of the seg unit, counting, 26 of the 40 cells had the 3x12 inch Plexiglas windows in the cell doors covered with paper form the inside. The 5:00 PM count approached, and the guard knew that if the prisoners kept their windows covered so that they couldn't be seen, the Lieutenant would order the guards to suit up in riot gear to forcibly enter each of the 26 cells to remove the window covering.

The turnkey walked back to the control booth, shaking his head. Five hours and 26 "cell extractions" later, the second shift guards were tired and mad. They put in a lot of work that day.

The whole ordeal could have been averted had the sergeant not decided to cancel use of the segregation law library that evening, apparently for no reason other than to avoid the work involved in escorting prisoners to and from the small room containing law books. In protest 26 of the seg unit's prisoners decided to "make 'em suit up."

From November to June, I as confined in the disciplinary segregation unit at Wisconsin's Racine ...

Chained Detainee Wins Restraint Case

At the Madison County Jail in Indiana a pre-trial detainee named Jones became despondent and tried to hang himself, after learning that his four months pregnant girlfriend had taken a job as an exotic "topless" dancer. Jail officials busted Jones and moved him to a barren detox cell, where he ...

The Politics of Imprisonment

By Ed Mead

Peoples' fear of being victimized by crime has steadily risen over the past couple of decades. This has been particularly true for women, the elderly, and minority communities.

While there has always been a substantial amount of crime in the U.S., its general level (rate of crime per capita) and overall intensity (degree of violence) have increased sharply in recent history. Although a portion of this increase is due to population increases and more efficient methods of collecting and reporting crime data, there has nonetheless been a substantial rise in individual victimization levels.

The fear of being victimized by crime is heightened by the sensationalized coverage of criminality by the bourgeois news media and the ranting of law enforcement agencies seeking to further expand their already bloated budgets. Preying on this fear, the overwhelming bulk of bourgeois politicians call for locking up more people for longer periods of time. This is termed "getting tough on crime," and it is an approach that is enjoying widespread public support these days. As a direct result of this policy new prison population records have been set within both the state and federal prison systems.

Sending malefactors to prison creates ...

Political Prisoner Information Wanted

We are an autonomist collective in Spain. Right now we are working on releasing a compilation tape of music to help fund the distribution of a booklet on political prisoners. We would like to receive as much information as possible from political prisoners and groups that work with and around prison issues and political prisoners so that our booklet will be as complete as possible.

You can write to us in English or Spanish, but we prefer the latter if possible. For more information write: Fobia Apdo. 46443, 28080 Madrid, Spain.

Brazil's Final Solution to the Crime Problem

The American media has recently reported on the massacre of street children in Brazil by policemen paid by merchants to "get rid of" their crime problem. Due to massive poverty there are hundreds of thousands of homeless children in Brazil who survive any way they can, even if it means stealing.

The Uruguayan weekly Brecha recently reported that between 1976 and 1990 the military police killed over 7,000 people in Brazil. Of these cases homicide charges were filed in 200 cases and in 198 of these cases the defendant policemen were acquitted of the charges by military tribunals. These figures do not include the killings by the city, state and other federal police forces, nor those of death squads which are usually made up of off duty policemen and soldiers. Diverse human rights groups in Brazil report that not even the recruits in the militarized police escape the brutality and poor treatment by their officers and are forced to serve as drivers, butlers and manual laborers for high ranking officials.

At a recent national congress of military policemen a member said that organization 'defends the improductive plantation system by repressing the landless, marginalizing the popular movements by means of ...

700 Moroccan Prisoners Escape

Close to 700 Prisoners of the Utita prison, about 60 miles east of the Moroccan capital of Rabat, escaped on May 22, 1993. The escape took place after the prisoners rioted and burned down virtually the entire prison. The 1,600 prisoners rioted when one of the guards brutally beat a prisoner.

Stop the Forced Psychiatric Treatment of Georges Cipriani

Stop the Forced Psychiatric Treatment of Georges Cipriani!

Georges Cipriani was captured in February, 1987 together with three other militants of Action Directe in France. The French government charged them with several armed actions against the military industrial complex and NATO. The took responsibility for the actions as members of AD.

After their arrest they were totally isolated. They have fought for improvements in their prison conditions with several long hungerstrikes. After a second hungerstrike in 1989 they were able to gain some minor improvements. The two women, Joelle Aubron and Nathalie Menigon, were housed together in a special part of the prison in Fleury and the two men, Georges Cipriani and Jean Marc Rouillan, were housed together in a special part of the prison in Fresnes.

They are held under modified isolation conditions of sensory deprivation similar to those employed in Germany and other imperialist countries in an effort to break political prisoners mentally and physically. The conditions are of total isolation from other prisoners, special cells, continuous lock down, extreme limits on mail, visitors, etc.

After more than two years they stopped their unsuccessful chain hungerstrike for better conditions. Solitary confinement is proscribed as torture by several international ...


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