Prison Legal News:
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Volume 4, Number 12
In this issue:
- Gender Based Treatment Disparity Violates Equal Protection (p 1)
- Retaliation for Legal Action States Claim (p 2)
- Prison Medical Treatment Law Explained (p 3)
- Damages Awarded to Paraplegic Prisoner (p 3)
- Lead Poisoning (p 4)
- Segregation of HIV+ Prisoners Upheld, Again (p 5)
- Washington Civil Commitment Law Upheld (p 6)
- BOP Must Disclose Medical Records (p 6)
- Nearly Third of All Prison Deaths Due to AIDS (p 6)
- No Witnesses for IFP Litigant (p 7)
- Riot Hits FCI Sheridan (p 7)
- Lucasville: A Brief History (p 7)
- Bullet Smuggling Guard Sentenced (p 9)
- Irish POWs Battle Extradition (p 10)
- From The Editor (p 10)
- A Bunch of Scumbags (p 11)
- Christopher "Naeem" Trotter Needs Support Against Injustice! (p 12)
- A Call for an Investigation of the U.S. Parole Commission (p 13)
- Cop's Perjury Conviction Upheld (p 13)
- Prosecutorial Liability Explained (p 14)
- Threat States 8th Amendment Claim (p 14)
- Qualified Immunity for Black Box (p 14)
- Family Visiting Info Wanted (p 15)
- TB Test Info Needed (p 15)
- Corruption at McNeil Island (p 15)
- Ex Post Facto Conflict Within Ninth Circuit (p 16)
- No Right to Unmonitored Mail to Media, Clergy (p 16)
The case was a complicated one. The district court's opinion is 95 pages long. The trial lasted for a month, there were 5,450 pages of transcript, and more than 350 pages of post trial briefs. The judge was being asked to rule, in terms of programs and services, whether female prisoners have been given a fair share by Nebraska prison officials when compared to male prisoners. The answer to that question was no.
There were a number of preliminary questions to resolve before addressing the substance of the plaintiff prisoners' equal protection claim. Were female prisoners "similarly situated" to male prisoners, did the "heightened ...
If you are a woman and you break the law in Nebraska, and if you are required to serve a prison sentence, you will be sent to the Nebraska Center for Women (NCW). NCW is located in York, a small town located about 100 miles from Omaha. It's the state's only prison for women. Prisoners at NCW filed a class action civil rights complaint alleging that the programs and treatment accorded to female convicts were inferior to those available at men's prisons, and that this disparity violated the equal protection clause.
Schroeder filed suit in federal court on eleven separate causes of action. These included that he had been retaliated against for having filed law suits, that he was transferred to another prison in retaliation for having complained about the inadequacy of the law library and for exercising his constitutional right of access to the courts. The district court granted the defendants motion for summary judgement in part and denied it in part.
The court dismissed Schroeder's claims against the guard who used the anti-semitic slurs by noting that, while reprehensible, such behavior does not violate the constitution.
The court held that Schroeder had, however, stated a first amendment claim by alleging he was retaliated against ...
Eric Schroeder is a Hawaii state prisoner. While at a minimum security prison he was assigned to a work crew under the supervision of a guard he had previously sued. Schroeder claims that the guard threatened him, used anti-semitic slurs and falsely infracted him in retaliation for the previous suits. Schroeder also filed complaints that the facility's law library was inadequate, that heating in the segregation unit was inadequate and that the prison disciplinary committee had reinstated disciplinary charges it had previously dismissed.
The judge noted that under the eighth amendment, prison systems have a constitutional duty to provide prisoners with adequate health care. However, mere allegations of negligent medical malpractice do not present a constitutional violation. In order to succeed in a § 1983 action claiming inadequate medical treatment, a prisoner must show more than negligence on the part of a prison doctor. He must show that the doctor exhibited "deliberate indifference" to a prisoner's serious medical need.
In the instant case the prisoner alleged that he reported to sick call at SCI Graterford seeking a "special diet" for medical reasons, and the doctor who saw him should have known that according to the plaintiff's prison medical records, he suffered from ulcers and torn ...
APennsylvania state prisoner brought a 42 U.S.C. § 1983 complaint against a prison doctor and hospital administrator, alleging that the medical treatment provided to him violated the eighth amendment to the U.S. constitution. The defendant hospital workers moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. Even though the pro se plaintiff did not submit a response to the motion to dismiss, the district court nonetheless denied the motion.
Robert Hicks was a pretrial detainee in the Jefferson County jail in Kentucky. He attempted to escape by climbing out of a window, his rope broke and he was severely injured in the resulting fall. After a stay in the local hospital he was returned to the jail, bedridden and ...
There is no proper way to explain how vital "lead poisoning" is without causing alarm. I am writing this in the hopes that prisoner advocates will step forward and explore the lead poisoning problem in the institutions in which they are presently incarcerated. If there are any unanswered questions after you read this, please contact me.
My intentions are to give you enough information to investigate the possibility of your institution poisoning prisoners, when they know or should have known that lead plumbing is installed in that institution, yet they have done nothing to correct the problem since 1974. If the prison that you are incarcerated in was built before 1974 then there is a 100% chance that it contains lead in the plumbing system. However, if this briefing is followed closely, you can file with the Environmental Protection Agency (EPA).
Lead poisoning is a time bomb in any correctional institution in the US because it goes undetected. Those placed in authority to run a check and balance are directly tied in with those in authority to keep us confined in these hell holes; therefore, no real concern is shown towards this issue.
My suggestions are ...
by Ronald Ronniel Wren
The defendants filed an interlocutory appeal claiming that they were entitled to qualified immunity on this issue as well. The court of appeals for the ninth circuit agreed and reversed and remanded the case.
The defendants did not raise qualified immunity as an affirmative defense in their answer to the complaint. The appeals court notes that qualified immunity is an affirmative defense that should be plead by the defendant in his or her answer to the complaint. However, in the absence of a showing of prejudice, an ...
James Camarillo was an HIV positive California state prisoner. He has since been released on parole. While in custody of the California DOC he was transferred to a housing unit of HIV+ prisoners. Camarillo filed suit under § 1983 claiming that the transfer violated his right to equal protection, privacy, due process, freedom from cruel and unusual punishment and freedom of association. On the defendant prison officials' motion for summary judgement the district court dismissed the first four claims holding that they were entitled to qualified immunity for their actions. The court did not address the issue of qualified immunity on the freedom of association issue and ordered the case to proceed to trial.
Under the statute, when a person's sentence for a sexually violent offense has expired or is about to expire, the state is authorized to file a petition alleging the person to be a sexually violent predator. A judge must determine ex parte if "probable cause exists to believe that the person named in the petition is ...
The Washington State "Civil Commitment" law was upheld by the Washington Supreme Court In Re Young, Wash Sup. Ct, No. 578637-1, 8/9/93. In this case, the sexually violent predator provisions of the 1990 Community Protection Act, RCW 71.09, are challenged by two people who have been civilly committed under it. A "sexually violent predator" is someone "who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence." Crimes of sexual violence are listed in the statute, and include some not usually considered sex offenses if they are determined beyond a reasonable doubt to have been "sexually motivated." "Predatory" acts are those directed at strangers, or individuals chosen by the offender for the purpose of victimization
Benavides filed suit under the Privacy Act (5 U.S.C. § 552a). The BOP moved for summary judgement against Benavides. The district court denied the BOP's motion and instead granted summary judgement in Benavides' behalf holding that as legal matter the Privacy Act specifically requires federal agencies, including the BOP, to produce medical records when so requested.
The Court ordered the BOP to produce all medical records to Benavides. See: Benavides v. Bureau of Prisons, 771 F. Supp 426 (DC DC 1991).
Eduardo Benavides is a federal prisoner who sought to review his medical prison records. The BOP release 56 pages of his medical file to him but withheld 66 pages, including those containing the evaluations and opinions of Benavides treating physicians.
Two thirds of the prisoner deaths in New York and New Jersey prisons that year were from AIDS, said a study issued by the Justice Department's Bureau of Justice Statistics.
The AIDS deaths among prisoners in both states appears to reflect widespread intravenous injection of drugs among males in New York City and neighboring cities, said Dr. Mervyn Silverman, president of the American Foundation for AIDS Research.
In 1991, 210 of the 318 prisoner deaths in New York state were the result of AIDS, the study said. Of prisoner AIDS victims, 199 were men and 11 were women, the study found.
In New Jersey that year, 66 of the 96 prisoner deaths were attributed to AIDS. All the AIDS victims were male.
Florida ranked third with 59 AIDS deaths among prisoners, followed by 38 in California, 19 in Pennsylvania, 18 in Texas, 14 in both North Carolina and Maryland, 13 in Georgia, 12 in South Carolina, 11 in Connecticut, 10 in Illinois and ...
More than half the prison inmates nationwide who died from AIDS in 1991 were in New York and New Jersey, where widespread drug abuse has caused much of the disease's spread, a government study said.
On appeal the prisoner's principal argument was that the lower court judge should have secured the attendance at trial of two witnesses because he was unable to do so himself. The court refused to pay the necessary witness fees, even though the prisoner was proceeding in forma pauperis .
The court of appeals affirmed the judgment of the district court and held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. In reaching this conclusion the second circuit court said: "We agree with our sister circuits [3rd, 6th, 7th, 8th, and 9th, but not the 1st, 4th, 5th, 10th, and 11th] that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay [for the plaintiff's] witness fees." See ...
Apro se civil litigant was prosecuting a § 1983 civil rights complaint in forma pauperis . The plaintiff was a prisoner and suit was filed against two guards for use of excessive force. After a bench trial, the U.S. district court entered a judgment against the prisoner. He appealed to the U.S. court of appeals for the second circuit.
The prison was designed to hold 756 prisoners and holds 1,297. One guard suffered a broken wrist and two other guards and several prisoners suffered cuts and bruises. According to FCI-Sheridan spokesman Robert Palmquist, "The officers were injured while running away from rioting inmates and they were caught in the melee." "We do not think there was any attempt to do harm to staff."
The 3,500 square foot building that was destroyed was worth at least $185,000. There was also less extensive fire and water damage to the prison chapel and recreation complex.
On Sep. 2, 1993, a riot broke out at the overcrowded FCI in Sheridan, OR. According to a report in The Columbian , of Sep. 3, 1993, an office building at the four year old medium security prison was burned to the ground after 20 to 30 prisoners stormed out of the recreation area armed with baseball bats and pool cues. It took guards about two hours to regain control. The prison was subsequently locked down for officials to investigate the reason for the riot.
The pinnacle of the prisoners' rights movement had about reached its peak when I arrived at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, in 1977. I had been transferred from the Ohio State Reformatory (OSR) in Mansfield, Ohio, to what was before the Ohio State Penitentiary, renamed the Columbus Correctional Facility (CCF) in Columbus, Ohio. The OSR was built in the late 1880's, as was CCF, had a huge wall with guard towers around it and looked like a castle. CCF looked the same but was located in downtown Columbus. Both had no hot running water or electrical outlets in the cells and were vermin infested. Both OSR and CCF were the subjects of a class action suit, see: Stewart v. Rhodes , 473 F.Supp. 1185 (S.D. OH 1979), appeal dismissed 661 F.2d 934 (6 Cir. 1981), consent decree entered 656 F.2d 1216 (6 Cir. 1981), and the federal court had ordered the OSP shut down, so the state got around it by changing the name to CCF. It should be noted that one of the eighth amendment violations found was using shackles and chains to four-way prisoners to <%1>bunks for ...%1>
By John Perotti
SOCF is in Lucasville, Ohio, which was the scene of a bloody riot in April, 1993, that left 10 people dead.
Former Southern Ohio Correctional Facility (SOCF) guard Robbie Stringer, was sentenced to two years in prison and a $5,000.00 fine for smuggling seven bullets into the prison in a bag of corn chips. The sentence imposed by Judge Everett Burton was the maximum allowed by law. Stringer pleaded guilty on May 24, 1993, to one count of conveying contraband into a detention facility.
For several hundred years the Irish people have battled the English occupation of their country. In more recent years the Provisional Irish Republican Army (PIRA) and Irish National Liberation Army (INLA) have continued this tradition of struggle by militarily engaging the British political-military establishment to force a withdrawal of British troops from Ireland and an end to the forced partition of the country, imposed by England after the 1922 civil war.
One of the results of this continuing struggles is that over 650 PIRA and INLA POWs now languish in prisons in the Irish Republic, occupied Northern Ireland, England and several European countries and the United States. For over twenty years Irish POWs have waged a long, bitter struggle to improve their prison conditions and gain recognition of their political status. The British government tries to deny the legitimacy of the Irish people's struggle for freedom by maintaining the fiction that there is no political struggle taking place but that PIRA/INLA attacks on British occupation forces are "criminal" acts no different than liquor store hold ups.
In 1981 Bobby Sands and other Republican prisoners held in Long Kesh prison began a hunger strike to gain ...
By Paul Wright
Welcome to another issue of PLN . The big news at this point is that Ed was recently paroled from the Washington DOC to a federal detainer and from there released by the feds. When we started PLN back in 1990 we agreed we would do it as long as it paid for itself and we'd reconsider the project when one or both of us got out. At the time it didn't seem like we had much to worry about in terms of either of us getting out any time soon.
We plan to continue with PLN and hopefully now that Ed is out we will be able to improve and expand it even more. In the meantime, while Ed gets situated and attends to minor things like finding housing and employment, I'll be handling PLN 's mail and such. If you write and don't get a reply right away please bear with me. Everything will otherwise continue as it has in the past. Except now Ed will be able to help with the fun tasks of folding and stapling PLN !
We are still working on expanding our subscriber base and are doing well ...
From the Editor
Awhile back a friend wrote in her letter to me that, as she was writing, her son walked into the room and asked what she was doing. Upon hearing her answer, the son said, "Those guys in prison are a bunch of scumbags."
That's certainly not an uncommon belief, and the Department of Corrections does what it can to promote such thinking. Anyone who suggests to correctional administrators that perhaps prisoners should be afforded humane treatment will hear a lot about how prisoners are unscrupulous and hypocritical. A favorite rhetorical tactic of prison official is to say that prisoners are hypocrites because they're concerned about their own rights while they ignored the rights of their victims.
Prisoners vary quite a bit from one to the next, so it's difficult to generalize. In my observation, some prisoners are unscrupulous and hypocritical, others less so. Prisoners certainly have seriously flawed members among their ranks, so I can't refute prison officials' claims that prisoners are unscrupulous and hypocritical, or, in the words of my friend's son, scumbags. But are prisoners really so different in that respect than the rest of society? More specifically, are prisoners ...
By Adrian Lomax
In April 1987, Chris was tried and convicted by an all white jury on 2 counts of attempted murder, 4 counts of confinement and 1 count of rioting. Chris was given the maximum sentence for each of ...
Christopher "Naeem" Trotter is incarcerated at the Indiana State Prison in Michigan City. Christopher is a young man, 30 years old from a working class Black family. Chris is serving a 142 year sentence as a result of his participation in the February 1, 1985 prison rebellion at the Indiana State Reformatory. In the rebellion, 7 correctional guards were stabbed and 4 other guards taken hostage for a period of 16 hours. The rebellion was in direct response to the racist and unprovoked beating of a Black prisoner while handcuffed and shackled by white guards, during a shakedown of the Maximum Restraint Unit. These beatings had become an established pattern among the guards. Out of the more than 300 prisoners who participated in some form in the rebellion, only 6 including Chris (all Black) were hand-picked and charged on various counts. The counts included battery, attempted murder, confinement and rioting. Before the rebellion occurred, Chris had only a few more months to serve.
The Sentencing Reform Act (SRA) that went into effect in Novermber of 1987, abolished parole and the U.S. Parole Commission (USPC). Section 235(b)(3) of the SRA required the USPC to hear all of the old law prisoners and set them a parole date within their guidelines, leaving office in November of 1992. They were given five years to finish their work.
The USPC objected to the part in 235(b)(3) that directed them to set a date for old law offenders. The USPC convinced Congress to change that section so that they could make decisions outside the respective guidelines. This took effect in December, 1987. The five year work period remained intact.
At that point, old law offenders began asking for hearings. The USPC refused. They agreed that old law offenders had to be granted their hearings, but said that they could do so at any time within the five year period. They chose to wait for the last six months they would be in office. There are over 20,000 old law offenders in U.S. prisons. The USPC never explained how they were going to process, in six ...
By Elton R. Winchester #31778-138, Leavenworth
Springer was charged and convicted of aggravated perjury and sentenced to ten years in prison, suspended after serving 30 days in the Harris County jail. His conviction was affirmed by state and federal courts.
It is interesting to note that Springer was only charged with lying to the grand jury. He was not charged with any of the actual beatings of the prisoners and suspects. One way to look at this is that by beating prisoners he was only committing crimes against the people which don't merit prosecution. By lying to the grand jury he was committing a crime against the government which is not to be tolerated. See: Springer v. Coleman , 998 F.2d 320 (5th Cir. 1993).
Normally PLN does not report on criminal cases but we thought this one might interest our readers. R.B. Springer was a Houston policeman. A Texas grand jury questioned him about numerous complaints of brutality and choking of prisoners and suspects. Springer denied any knowledge or actions of the sort. The district attorney then presented eight witnesses who testified that Springer had choked or physically abused them while they were in his custody.
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 claim. However, the court ...
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 form making false statements as a press conference announcing the return of an indictment against him. He claimed that when three separate lab studies failed to make a reliable connection between a bootprint at the murder site and his boots, and when the prosecutors obtained a positive identification from one Robbins, who allegedly was known for her willingness to fabricate unreliable expert testimony. Thereafter, they 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 charges were dropped and he was released after three years of incarceration.
The district court dismissed the suit as being frivolous and revoked Smith's in forma pauperis status. The court of appeals for the fifth circuit vacated and remanded.
The appeals court, in a brief opinion, ruled that the district court had abused it's discretion in dismissing the suit. The legal question presented was whether the eighth amendment's ban on cruel and unusual punishment covers purely psychological injury. The court cited several supreme court and appellate court decisions holding that it does.
The court expressed no opinion as to the merits of Smith's claim or whether he had in fact pleaded a claim upon which relief could be granted. The case was remanded back to the district court ...
Lloyd Smith is a Texas state prisoner. While working in the prison kitchen Smith witnessed a prison guard, Raymond Aldingers, order another prisoner to hold out his hand, which Aldingers then proceeded to cut open with a kitchen knife. Aldingers then turned to Smith and asked "You want some of this too?" Smith claims he was frightened and as a result had to seek psychiatric counseling. Smith filed suit under § 1983 claiming that Aldingers' actions violated his eighth amendment rights.
Knox filed suit under § 1983 claiming that the black box caused him severe discomfort and physical injury, to include bleeding, indentations, numbness and continuing pain. The district court dismissed the suit holding that the defendants were entitled to qualified immunity from damages, that the eleventh amendment barred claims against the defendants in their official capacities. The court also ruled that Knox lacked standing to seek injunctive relief because he had been released from segregation and could not show a likelihood of future harm. The court of appeals for the seventh circuit affirmed.
The appeals court reviewed all published cases which challenge use of the black box. Noting that ...
Paul Knox is an Illinois state prisoner. After prison officials discovered four knives in his cell, Knox was infracted, found guilty and placed in segregation. Pursuant to prison policy, every time Knox left the segregation unit, to receive visitors, go to the hospital or law library, he was required to wear handcuffs, a waist chain and a black box. The black box is a hard plastic box placed over the locks of the handcuffs between the prisoner's hands. The box's purported purpose is to prevent the picking of handcuff locks.
15108 Fayette Blvd.
Brookpark, OH. 44142-2465
Policies, analytical charts and studies and any documentary evidence on family visiting programs (also known as trailer visits, extended family visiting, etc.) and their beneficial qualities are needed in an effort to implement such a program in Ohio. Any documentation, articles, etc., that may be helpful are also needed. Send all materials to:
I have filed suit in federal court on the New York DOC's practice of requiring the TB skin test. During discovery I came across a document which allowed prisoners to take a chest X-Ray in lieu of a the skin test. I need support from brothers and sisters to show that although prison officials established the chest X-Ray alternative to deal with prisoners religious objections to the skin test, as a matter of practice they do not extend the X-Ray to religious prisoners.
In replyinge, please send your materials of support to:
Milton Musa Pacheco
C/O Neal Gonet
3545 Jamison Way, # 10
Castro Valley, CA. 94545
I am presently seeking information from Muslims (prisoners and civilians), who oppose taking the TB skin test on religious grounds because it violates their Islamic beliefs by having the serum injected into the skin. I am seeking affidavits, articles, legal articles (either American or Islamic law), literature and other references to the TB test being objectionable on religious grounds which are recognized by prison officials. People of other religious denominations (Christians, Jews, Rastafarians, etc.) are also encouraged to submit their input.
Once it was on the other side of the water the cops followed the truck all the way into Tacoma, where the cops saw it enter a shop owned by the auto body man. On monday morning when they saw that the crew bosses were on the morning boat to come to work here at the prison, they had the Tacoma police raid the shop. Inside they found over $200,000 of materials that had been bought with the people's hard earned tax dollars!
Why this story has not yet ran in the bourgeois media is anyone's guess. Maybe it's a cover up, it should be big news and yet, as of this morning, not a peep in the papers or electronic media.
R.P. McNeil Island, WA.
On October 4, 1993, they locked down all the outside shops here at McNeil Island. There has been a three month investigation into the activities of the crew bosses who headed the motor pool, plumbing shop and auto body repair shop. Last thursday the cops filmed two of these individuals with their crews loading up a huge truck which they then put on a barge to the mainland.
Three days after the Powell decision, a different panel of the ninth circuit reached a different conclusion. They ruled that the retroactive application of an Oregon parole regulation that lessened the amount of sentence reduction an inmate could receive violated the ex post facto clause. The regulation cannot be defended on the ground that the amount of the sentence reduction was purely discretionary under either version of the parole regulation, the court explained. The U.S. Supreme Court's cases in this area, such as Miller v. Florida , 482 U.S. 423 (1987), and Weaver v. Graham , 450 U.S. 24 (1981), make clear that the loss of an opportunity for sentence relief constitutes a substantial hardship, which may not be imposed on a prisoner consistently with the ex post facto clause. The regulation at issue ...
In the October PLN we reported on the case of Powell v. DuCharme , 998 F.2d 710 (9th Cir. 1993) in which a panel of the ninth circuit court of appeals held that the ex post facto clause was not violated by the application of Washington state's new parole scheme to first degree murder cases. See, PLN , Vol 4, No. 9, page 4.
The prisoner filed suit when Missouri officials changed the status of outgoing mail to the media and the clergy from "privileged" to "not privileged." "Privileged" mail, such as that directed to attorneys, is not read by prison officials.
The majority noted that the decisions of prison officials are upheld so long as they are "reasonably related to legitimate penological interests." Turner v. Safley , 482 U.S. 78 (1987). Despite the prisoner's assertions otherwise, no other test applies here, the majority said.
Inmates have no right of unmonitored communication with clergy and the media, the court concluded. It noted that the defendant was free to write whatever he wanted and have his letters mailed. He could also make phone calls or even receive visits from those with whom he wished to communicate. On the other hand, prison security interests are served ...
Astate prison regulation that requires inspection of outgoing mail directed to members of the media and the clergy does not violate inmates' first amendment rights, a majority of the U.S. court of appeals for the eighth circuit recently held. The majority noted that the mail in question would only be censored if it contained threats or escape plans.