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Prisoner Education Guide

Prison Legal News: August, 1993

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Volume 4, Number 8

In this issue:

  1. Law Librarian Liable for Access Violations (p 1)
  2. Choice Between Exercise and Access Struck Down (p 1)
  3. Officer's Family Awarded $120,000 for Contracting TB (p 2)
  4. Service Complete When Delivered to Prison Officials (p 2)
  5. Non-Stenographic Depositions (p 3)
  6. Federal Tort Claims Act Requires Exhaustion (p 3)
  7. No Waiver of Witness Fees for IFP Litigants (p 4)
  8. No Cause of Action for Defamation (p 4)
  9. Opening Legal Mail States Claim (p 4)
  10. Some Evidence Standard Meets Due Process (p 5)
  11. Rules for Appointment of Counsel Clarified (p 5)
  12. Disobeying State Court Order Basis for Section 1983 Liability (p 5)
  13. Texas Studies Housing Prisoners in Foreign Countries (p 6)
  14. Sanctions Against Pro Se Litigant Reversed (p 6)
  15. Ad-Seg WACs Do Not Create Liberty Interest (p 6)
  16. Section 1988 Attorney Fee Awards Explained (p 7)
  17. Texas Proposes to Build State "Jails" (p 7)
  18. California Visitor Search Ruling Modified (p 7)
  19. The Federal SRA: A Social Experiment Gone Astray (p 8)
  20. No Right to Cross Dress (p 8)
  21. Increasing Parole Review Time is Ex Post Facto (p 9)
  22. Shackling Plainitff Violates Right to Fair Trial (p 9)
  23. Money Damages Available for Consent Decree Violations (p 9)
  24. US Marshals Liable for Beating (p 10)
  25. Probation Officers Only Entitled to Qualified Immunity (p 10)
  26. 9th Circuit Announces New Qualified Immunity Rule (p 10)
  27. Dismissal Error for Failing to Obey Local Rules (p 11)
  28. Ad Seg Right to Eyeglasses and Toilet Paper (p 11)
  29. WA Repeals Cons Tolling Statute (p 11)
  30. Retaliatory Transfer States Claim (p 12)
  31. Default Appropriate for Obstructing Discovery (p 12)
  32. Overcrowding Emergency Measures Get Old (p 12)
  33. California Prisons Grow (p 12)
  34. Court Reporters Entitled to Only Qualified Immunity (p 13)
  35. Prisoners Retain Right of Bodily Privacy (p 13)
  36. Disciplinary Isolation Triggers Due Process (p 14)
  37. Florida Conditions Lawsuit Settled After 21 years (p 14)
  38. Periodical Reviews (p 14)
  39. City of Refuge (p 15)

Law Librarian Liable for Access Violations

A Lorton prisoner at the Occoguan Facility brought suit under 42 U.S.C. §§ 1983 and 1988 and the first, fifth, sixth and fourteenth amendments to the constitution. The complaint alleged a pattern of exclusion and harassment in connection with his use of the prison law library. The defendants were the chief law librarian and four administrators and supervisors responsible for providing prisoners with adequate access to library facilities. The defendants moved for summary disposition on a number of grounds, including failure to state a claim and qualified immunity. The district court judge denied the defendants' motion, holding that the allegations of an ongoing pattern of harassment and arbitrary exclusions were sufficient to state a meaningful access to the court's claim for the purpose of surviving a Rule 12(b)(6) motion to dismiss, and that the doctrine of qualified immunity did not shield supervisors or librarian from individual liability.

The plaintiff in this case, Tyrone Martin, claimed that the prison's law librarian would refuse to allow him into the library several times a week, had ejected the plaintiff from the law library without justification, and had locked the law library doors to prevent Martin's re-entry. The ...

Choice Between Exercise and Access Struck Down

The message in this case is that both the right of access to the courts and the right to outdoor exercise are important ones. "To sanction the policy of forcing a prisoner to choose between two important, indeed fundamental, rights," the court held, "is tantamount to denying the prisoner one of the rights."

The plaintiff in this action is a pro se prisoner, named John Allen, who filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against state prison officials in Hawaii. While this case deals with a number of issues, we will address only the question of outdoor recreation versus law library access. Allen alleged it was unconstitutional to make him choose between outdoor recreation and law library time. He claimed that prisoners have a constitutional right of access to the courts, which includes adequate law library time (Bounds v. Smith, 430 US 817, 827 (1977)), as well as a distinct constitutional right to outdoor exercise (Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)).

The state defendants argued that because the plaintiff was allowed out of his cell six hours per week to visit the law library, and could have elected to spend ...

Officer's Family Awarded $120,000 for Contracting TB

In what may be an important precedent setting case, the U.S. Department of Justice awarded almost $120,000 to the family of Peter Petrosino, a 57 year old state prison guard at the Auburn, N.Y. prison, who died Oct.24, 1991, as a result of tuberculosis allegedly contracted ...

Service Complete When Delivered to Prison Officials

Brian Faile is a Nevada state prisoner. He sued the Upjohn company claiming that their product Xanax, a prescription drug, caused him depression and violent outbursts which resulted in his being severely wounded by police and imprisoned. The district court dismissed Faile's suit because his opposition to Upjohn's motion to dismiss was late. Faile submitted a tardy opposition and a motion that the court hear it. The court refused to consider Faile's opposition as a sanction for Faile allegedly being late in responding to Upjohn's court ordered discovery requests. The district court dismissed Faile's suit.

The discovery requests in question were post marked two days after the deadline date the court had set. Faile contended he had delivered the discovery materials to prison officials for mailing well before the deadline.

The court of appeals for the ninth circuit reversed and remanded the case.

The appeals court ruled that discovery responses are deemed served and filed the day a Pro Se prisoner gives them to prison officials to mail, not the actual date the materials are mailed or received by the opposing party or court. The court gave a good explanation of the important policy reasons ...

Non-Stenographic Depositions

By Paul Wright

The most crucial part or process of a civil rights suit is the discovery phase. In many civil rights cases the defendants are government employees performing state functions and thus have sole control of the relevant evidence the plaintiff will need to prove his/her case. This is true of prison civil actions in particular. Many prisoner litigants conduct little or no discovery, essentially relying on whatever documents they may already possess or perhaps using interrogatories. Extensive and good discovery is essential to winning any case. The defendant's attorneys know this and their function is to hide or obscure the facts to protect their client, the pro se litigant's job is to uncover these facts and bring them to the court's attention.

Interrogatories are useful in cases where the information needed is policy numbers, specific dates, etc., because it allows the recipients to look through their records and verify the information, research answers to questions, etc. The main drawback is that it allows the defendants 30 days to mull over their responses with their counsel, eliminate contradictions if there are multiple defendants, etc. In addition, interrogatories can only be served on parties to the ...

Federal Tort Claims Act Requires Exhaustion

William McNeil was a federal prisoner who was without counsel when he filed his suit under the Federal Tort Claims Act (FTCA). The complaint sought money damages arising from his alleged injury by the U.S. Public Health Service. McNeil submitted a claim for damages to the Department of Health and Human Services, who promptly denied the claim. The district court subsequently dismissed McNeil's complaint as premature under an FTCA provision, 28 U.S.C. § 2675(a), which requires that a claimant exhaust his administrative remedies before bringing suit. The prisoner appealed to the Court of Appeals for the Seventh Circuit (964 F.2d 647), which affirmed the lower court, despite decisions in other circuits that have permitted a prematurely filed FTCA action to proceed if no substantial progress has taken place in the litigation before the administrative remedies are exhausted.

The U.S. Supreme Court granted certiorari and a unanimous court affirmed the court of appeals. The court ruled than an FTCA action may not be maintained when the claimant failed to exhaust his administrative remedies prior to filing suit, even if he did so before substantial progress was made in the litigation. The court held that § 2675 ...

No Waiver of Witness Fees for IFP Litigants

Bobby Dixon is a California state prisoner. He filed suit under § 1983 claiming that he was denied adequate medical treatment by prison officials. The case went to trial before a magistrate judge who granted the defendants' motion for a directed verdict. The ninth circuit court of appeals affirmed the ruling.

The court noted that a party to a federal civil case has a constitutional right to proceed before an Article III judge. Dixon consented to proceed to trial before the magistrate but later changed his mind and wanted a judge. The court notes that "once consent to proceed before a magistrate is given, it can be withdrawn by the court only for good cause shown on its own motion or under extraordinary circumstances shown by any party." There is no absolute right in a civil case to withdraw consent to trial before a magistrate.

Dixon sought to call a witness as a substitute for a previously subpoenaed witness whose illness prevented his attendance at the trial. The appeals court affirmed the magistrate's ruling that 28 U.S.C. § 1915, the In Forma Pauperis statute, does not waive payment of fees or expenses for witnesses, citing Tedder v. Odel, 890 ...

No Cause of Action for Defamation

Two Ohio prisoners approached a unit supervisor to discuss a cell change; one of them sought to be moved into a cell occupied solely by another prisoner. The supervisor then either directly told them or implied that the cell's occupant was a homosexual. This prisoner sued the supervisor for slander.

The court found that the supervisor's mistaken suggestion that the plaintiff prisoner was a homosexual was defamatory, and that the prisoner suffered "harassment and distasteful invitations," as well as injury to his name and reputation within the prison population. However, he was not entitled to an award of damages, because the supervisor's comments were protected by a "qualified privilege" since he made his comments in the course of the performance of a duty to communicate with the prisoners.

The state Department of Rehabilitation and Correction had initiated a program intended to reduce violence between inmates and which focused on reducing conflicts arising from cell assignments. There was ample evidence that incompatibility often resulted when one, but not both, of the cellmates was a homosexual and that this variety of incompatibility had previously resulted in innumerable fights as well as stabbings. Under the requirements of this program, the ...

Opening Legal Mail States Claim

Miguel Castillo is an Illinois state prisoner. He filed suit under § 1983 after three pieces of legal mail were opened by Cook County Jail officials in an eight month period. The items of "legal mail were marked legal mail," two came from the US district court and one came from the US Department of Justice. Castillo had filed grievances with jail officials concerning the openings without satisfactory results. The district court dismissed Castillo's suit as being legally frivolous.

The court of appeals for the seventh circuit reversed and remanded.

The appeals court reviewed the dismissal for an abuse of discretion. In finding the dismissal unwarranted the court held that the allegations in the complaint were more than adequate to indicate a constitutional violation. The court also held that it was not bound by dicta from Martin v. Brewer, 830 F.2d 76 (7th Cir. 1987), which had held that mail from the courts were public documents not subject to the privileged communications protection of being sent "legal mail." It found Martin to be inappropriate because in this case "Castillo's mail was marked as legal mail."

Castillo's naming of the Cook County Mail Room Department, a non-suable entity ...

Some Evidence Standard Meets Due Process

Prison discipline imposed on the basis of "some evidence" that an inmate has violated prison regulations does not violate the fourteenth amendment's due process clause, a majority of the Court of Appeals for the Eighth Circuit held. In the prison setting, due process guarantees only that inmates will not be subjected to "arbitrary" deprivations, the majority explained. The "some evidence" standard is adequate to safeguard this limited due process right, it said.

Describing the scope of the appellate review, the U.S. Supreme Court has stated that "due process is satisfied if some evidence supports the decision by the prison disciplinary board," Superintendent, Massachusetts Correctional Inst. v. Hill, 472 U.S. 445, 455 (1985). The majority rejected the prisoner's argument that Hill states only a standard for appellate review. The right to a hearing prior to imposition of prison discipline, established in Wolff v. McDonnell, 418 U.S. 539, 555-558 (1974), does not guarantee a full-fledged factfinding hearing, the court said. Wolff's due process standard is a flexible one, leaving considerable discretion to prison officials regarding the day-to-day operation of correctional institutions. After observing that many constitutional deprivations are tolerated on no more than notice and an ...

Rules for Appointment of Counsel Clarified

Dee Farmer is a male to female transsexual federal prisoner. She filed suit against BOP officials claiming they were deliberately indifferent to her serious medical needs, in violation of the eighth amendment, by not providing her with medical and psychiatric treatment for her transsexualism. After a two day jury trial Farmer's suit was dismissed.

The court of appeals for the seventh circuit affirmed. The opinion provides an overview of the law regarding transsexuals in prison. The sole issue on appeal in this case was whether or not the district court had abused its discretion in refusing to appoint counsel to represent Farmer at trial.

The court noted that Jackson v. County of Maclean, requires that a pro se litigant first attempt to secure counsel on their own. Only after that has failed should the court consider a request to appoint counsel.

The court gave an overview of its past cases governing the appointment of counsel and listed the reasons multiple factor tests have proven difficult to implement in practice.

The key question the district court must resolve is whether, before trial, the pro se litigant appears competent to try the case. If the judgement was sensible when made, the ...

Disobeying State Court Order Basis for Section 1983 Liability

Ernest Walters is an Iowa state prisoner. He was infracted for allegedly lying to a guard. He was found guilty at a disciplinary hearing and punished. Walters filed a post conviction action in state court and won a default judgement against the defendant prison officials. The state court ordered prison ...

Texas Studies Housing Prisoners in Foreign Countries

by F. Lee Weiss

The Texas Senate approved a measure calling for a study to investigate the desirability of housing state inmates in foreign countries.

State Senator John Leedom, a Republican from Dallas, said that his proposal could save Texas $500 million per biennium. When asked what motivated his proposal, Leedom said he was irritated that the costs to society to house an inmate in Texas is approximately $1,500 per month and that his plan was a way to cut costs.

If the study determines that the plan is feasible, Texas would house habitual and violent offenders in foreign countries. Leedom said he believes that Texans would overwhelmingly approve the plan because they are fed up with the current costly system. "The money saved on housing prisoners and building more facilities could be applied to school funding," he said.

When asked about which countries might be used, Leedom replied "Red China." He added that the Red Chinese are "very sweet people" and that it's certainly "far enough away from Texas." Leedom explained that "two dollars a day hard cash is a lot of money over there, so they will probably have the lowest cost."

If the plan is ...

Sanctions Against Pro Se Litigant Reversed

Raymundo Mendoza is a Texas state prisoner. In 1980 he suffered cervical and spinal injuries in a prison accident. He filed suit and his claims were eventually dismissed. In 1991 he filed suit alleging that he had received negligent medical treatment; been denied essential medical care and been unjustly disciplined for refusing to work. The district court held an evidentiary hearing where it found Mendoza's pre-1989 claims were time barred and dismissed the suit as legally frivolous by finding that the allegations did not rise to the level of constitutional violations. The court also imposed Rule 11 sanctions against Mendoza, holding that two suits in an 11 year period were an abuse of the judicial system. As a result of the sanction Mendoza was required to obtain permission from the chief judge before he could file any suits in the future.

Mendoza appealed and the court of appeals for the fifth circuit affirmed dismissal of Mendoza's lawsuit, but reversed the imposition of sanctions. The court noted that negligent medical care does not violate the constitution and thus the suit was properly dismissed.

The court gave a detailed discussion about the imposition of Rule 11 sanctions against pro se ...

Ad-Seg WACs Do Not Create Liberty Interest

PLN recently reported Farr v. Blodgett, [PLN, Vol. 4, No. 6] in which the district court for the Eastern District of Washington held that the Washington Administrative Code (WAC) created a due process liberty interest for Washington state prisoners to remain out of administrative segregation (ad seg). In another case the ninth circuit court of appeals has ruled the WAC's do not create such a liberty interest.

Scott Smith is a prisoner at the Washington State Penitentiary (WSP) at Walla Walla. Smith was placed in administrative segregation while WSP officials claimed to be investigating allegations that he had threatened to assault a prisoner and a guard. Smith filed suit under § 1983 contending his ad seg placement violated his right to due process. The lower court dismissed the suit on grounds of qualified immunity, that because the WAC's had not previously been held to create a liberty interest the right was not "clearly established" and the defendants were thus immune from damages. The court did rule that Smith retained a due process liberty interest, created by the WAC's, in remaining out of ad seg.

The court of appeals for the ninth circuit affirmed dismissal of Smith's suit ...

Section 1988 Attorney Fee Awards Explained

In two cases involving attorney fee awards for class action prison civil rights suits the ninth circuit court of appeals clarified and explained the standards district courts should follow when they award attorney fees to the prevailing party.

In Gates prisoners at Vacaville, CA, sued concerning their conditions of confinement and lack of adequate medical care. The parties entered into a consent decree and the district court awarded the prisoners' counsel over $6 million in attorney fees. The court of appeals for the ninth circuit affirmed in part, vacated and remanded in part.

The court notes that the fee applicant must document hours expended in the litigation and provide evidence in support of their application. The opposing party bears the burden of challenging the prevailing party's hours charged.

Citing extensive cases the court held that lower courts must give clear and concise reasons for its fee awards. Appeals courts review the fee awards for an abuse of discretion. In this case the appeals court vacated the lower court's fee award because the lower court did not give an adequate explanation for its fee award, thus not allowing the appeals court to determine whether or not the lower court ...

Texas Proposes to Build State "Jails"

Texas Proposes to Build State "Jails"

After decades of costly prison reform litigation under the Ruiz decree the Texas Department of Criminal Justice (TDCJ) continues to have serious problems of overcrowding. Overcrowding of state prisons has reduced the TDCJ's ability to receive new prisoners, this has created a huge backlog of convicted felony prisoners in the state's county jails and resulted in litigation to challenge crowding and conditions there. One effect of this has been efforts by the Texas Legislature to create "state jails."

The Texas legislature is considering several proposals to create a "state jail" division of the TDCJ. State jails would differ from prisons in that they would be more "spartan" and less expensive to construct and to operate. They are designed to reduce the county jail backlog, to avoid Alberti decision fines in Harris county, and to reserve prison space for violent offenders. The "jails" would adhere to lower standards than prisons.
SB 171- For construction of 10,000 state jail beds has already been signed into law by Governor Richards.

SB 532- Creates a state jail division.

SB 1067 (Whitmire)- Construction of 40,000 more prison beds and creation of a State Jail Felony ...

California Visitor Search Ruling Modified

A 13-point injunction concerning searches of visitors to California prisons was scrutinized March 23 and modified in some particulars by the California Court of Appeals, First District. The injunction was the result of a suit challenging a program under which visitors' vehicles were subjected to random inspections by drug-detection dogs.

The court said that searches under the program could be upheld as administrative searches, for which probable cause is not required, even though they are more intrusive than searches previously validated under that rationale in California. As for the injunction, the court approved requirements concerning notice and a minimum distance between dogs and visitors. It also said the lower court properly reserved jurisdiction to decide whether to appoint a master or monitor to supervise implementation of the injunction. The court approved some of the time limits imposed by the lower court but added that once a dog alerts to the scent of contraband, probable cause exists and time limits become inoperative.

The court disapproved of portions of the injunction limiting the authorities in taking certain steps when contraband was found. Under the injunction, the discovery of contraband in a vehicle would not be enough, by itself, to justify extending the ...

The Federal SRA: A Social Experiment Gone Astray

In 1984 Congress confronted the rise in drug and firearm related crimes by instituting a social experiment. The social experiment became known as the Sentencing Reform Act (SRA) of 1984. Congress assumed longer federal prison sentences--without parole--would serve as a serious deterrent to crime, particularly in the case of those convicted on federal drug and firearm charges. The SRA dealt exclusively with federal sentences and certain facets of federal prisons. To manage the philosophical approach to crime, Congress created the United States Sentencing Commission (Commission) under the SRA. Congress then armed the Commission with the power to promulgate Federal Sentencing Guidelines--to be applicable to those arrested and later convicted on federal charges after the date of the SRA's inception.

The SRA abolished federal parol and opposed rehabilitation. Consequently, the SRA rejected imprisonment as a means of promoting rehabilitation and stated that punishment should serve retributive, educational, deterrent, and incapacitation goals. See, e.g. 18 U.S.C. § 3553(a)(2). In addition, Congress claimed the SRA was created to offset serious disparities among the sentences imposed by federal judges upon similarly situation offenders and make certain the actual date of a prisoner's release. See Mistretta v. United States ...

No Right to Cross Dress

Tonya Star, AKA Anthony Jones, is an Illinois state prisoner. Star filed suit contending prison officials had violated his first amendment and equal protection rights by refusing to allow him to wear women's clothing and makeup. Star did not claim to be a transsexual nor to have a medical need to wear women's clothing. The district court dismissed Star's suit.

The court held that prison officials have a legitimate security interest in preventing cross dressing. According to the court, cross dressing would create a security risk by provoking attacks by intolerant or sexually aggressive prisoners. Accommodation would also be burdensome due to the cost and difficulty of stocking women's clothing and make up on the prison commissary.

The court did not find an equal protection violation because other male prisoners are treated equally, i.e. they cannot wear women's clothing either. The court held that women prisoners wearing pants are not comparable to male prisoners wearing dresses and thus justifies differential treatment by prison officials. See: Star v. Gramley, 815 F. Supp 276 (CD IL 1993).

Increasing Parole Review Time is Ex Post Facto

South Carolina's legislature passed a statutory amendment decreasing the frequency of parole reconsideration hearings from every year to every two years. A prisoner filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, claiming the amendment was an unconstitutional ex post facto law when applied to prisoners whose offense were committed before the change in the law took place. Gary Roller was convicted of a crime in 1983. In 1986 the law requiring review every two years, instead of the previous one year, was passed by state law-makers. The South Carolina parole board heard Roller's case in 1990, whereupon it advised him that his next review would not be until 1992, some two years later. Roller promptly filed suit. The district court granted the state's motion for summary judgment, mostly on various immunity grounds. Roller appealed.

The court of appeals for the fourth circuit reversed, holding that Roller's claims for declaratory and injunctive relief were not affected by the state's various immunities. The court noted that four other circuits have held that retroactive reduction in the frequency of parole consideration violates the ex post facto clause. These were the 7th, 8th, 9th, and ...

Shackling Plainitff Violates Right to Fair Trial

Edward Lemons is an Illinois state prisoner. He claimed that while in segregation he was attacked and severely beaten by prison guards. When his case went to trial the judge went along with the defendant's request that Lemons be handcuffed and manacled in front of the jury during the trial. The jury entered a verdict in favor of the defendants and Lemons appealed.

The court of appeals for the seventh circuit reversed and remanded the case for a new trial.The court noted there is a constitutional right to a fair trial in civil cases. Relying on a long line of criminal cases which hold that shackling a criminal defendant in front of a jury may deprive him of a fair trial, the court held that shackling a prisoner-plaintiff in a civil trial may also unfairly prejudice a jury.

This is a case of first impression for the seventh circuit. The court held that the lower court abused its discretion in allowing Lemons to be shackled in front of the jury. The lower court did not hold a hearing to determine what restraints, if any, were needed but erred "by relying on the self serving opinion of fellow penal ...

Money Damages Available for Consent Decree Violations

Two prisoners at the Georgia State Prison (GSP) filed suit under § 1983 concerning the confiscation of personal property and the procedures at prison disciplinary hearings. In the mid-70's these issues had been litigated as part of a class action suit by other prisoners. The plaintiff class of prisoners and prison officials had entered into a consent decree concerning these and other aspects of GSP's operation. In these two cases the district court dismissed the suits holding that the previously entered consent decrees barred individual litigation on these issues. It ruled that the prisoners only avenue for relief was to file a motion for contempt against the prison officials through the class action counsel.

The court of appeals for the eleventh circuit affirmed in part, reversed in part and remanded the case.

The appeals court held that GSP prisoners seeking injunctive relief for violations of the consent decrees must file contempt motions through class counsel. However, claims for money damages are not subject to this requirement and can still be brought by individual prisoners under § 1983. This ruling clarifies the eleventh circuits recent rulings on this issue in Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993), and ...

US Marshals Liable for Beating

Fred Sandoval is a federal prisoner. While being transported to a court hearing the Marshals Service placed him in a private jail run by the Wackenhut corporation, contracted to the US government. A Wackenhut guard antagonized another prisoner who, thinking Sandoval was the culprit, attacked Sandoval breaking his nose, teeth and cheekbone. Sandoval filed suit against the Marshals Service under the Federal Tort Claims Act (FTCA) seeking damages for the violation of his right to personal safety.

The district court dismissed Sandoval's suit as being "frivolous" under 28 U.S.C. § 1915 (d), the In Forma Pauperis (IFP) statute. The district court held that the federal government is not liable for actions by its contractors (the Wackenhut employee). Because the assault was not committed by government employees, it was excluded from FTCA coverage.

The court of appeals for the fifth circuit vacated and remanded. The appeals court held that the FTCA's bar to assault claims (28 U.S.C. § 2680 (h)) does not apply in this case because the intentional tort that injured Sandoval was not perpetrated by a government employee thus S 2680 (h) does not apply.

The appeals court held that Sandoval had adequately alleged a ...

Probation Officers Only Entitled to Qualified Immunity

Charlene Gelatt is a New York state probationer. After being convicted of grand larceny she was placed on probation and ordered to pay restitution. She had her probation supervision transferred to Florida. Richard Wahila is a New York state probation officer. He wrote to Gelatt after noticing she had not paid her restitution. The letter was returned as undeliverable and Wahila sought an arrest warrant claiming Gelatt had absconded from supervision and failed to pay restitution. Gelatt was arrested in Florida and extradited to New York, spending some three weeks in various jails and prisons.

At the probation revocation hearing, Gelatt's Florida probation officer testified that she had monitored Gelatt since she moved to Florida and that Gelatt had fallen behind in her restitution payments after losing her job because of her probation status. The judge dismissed the warrant and released Gelatt.

Gelatt filed suit seeking $5 million in damages for violation of her state and federal rights. Wahila and the defendants moved for summary judgement claiming that probation officers are entitled to absolute immunity from suit.

The district court denied their motion. The court gave an extensive, detailed analysis of the doctrines of absolute and qualified immunity for ...

9th Circuit Announces New Qualified Immunity Rule

This case arises from the strip searching of arrested AIDS protestors at a federal building demonstration in Portland, OR. While this is not a prison case the appeals court has announced a new rule concerning the qualified immunity doctrine which is often raised by prison officials as a defense in civil rights litigation.

The plaintiffs in this case sued the federal marshalls who strip searched them, after they were arrested, at the federal courthouse. This is a Bivens action. The marshalls sought summary judgement on the basis of qualified immunity. The district court denied their motion because in 1989, when the searches occurred, it was well established law in the ninth circuit that law enforcement officers could only search misdemeanor arrestees upon having probable cause to believe the arrestees were concealing contraband. The district court held that the question of whether the defendants had "reasonable suspicion" to strip search the plaintiffs was a factual question for a jury to decide.

The court of appeals for the ninth circuit reversed and remanded. The court held that whether or not "reasonable suspicion" existed is a legal, not a factual, question that can be resolved on summary judgement by a judge and not ...

Dismissal Error for Failing to Obey Local Rules

Ronald Kilgo is a Georgia state prisoner. When he was in the Fulton County Jail he filed suit under § 1983 because jail officials had repeatedly refused his requests for medical treatment of a back injury and had subjected him to punishment which aggravated the condition.

Kilgo was transferred to different prisons several times over the next two years. He advised the court of his address changes but due to an error by the court, the address changes were not noted. The court continued to mail documents to Kilgo at the county jail whereupon they were returned to the court as undeliverable. Convinced by the string of returned mail that continuing the action was futile, the district court dismissed the complaint for violating local court rules requiring parties to keep the court advised of address changes.

The court of appeals for the eleventh circuit vacated and remanded. The court held that the district court had based its dismissal on the erroneous belief that Kilgo had willfully disobeyed the courts orders. Thus, dismissal was an abuse of discretion. The appeals court held that before dismissal is an appropriate sanction the lower court must find that lesser sanctions would not suffice.

The court ...

Ad Seg Right to Eyeglasses and Toilet Paper

Vernon Williams is a California state prisoner in administrative segregation (ad seg) at San Quentin. He filed suit challenging numerous conditions of his confinement. The court granted Williams leave to proceed In Forma Pauperis. This is not a ruling on the merits of the case but a determination of whether William's claims, if true, would entitle him to relief from the court. The court gave numerous ninth circuit cites on the issues it discusses which will be helpful to anyone litigating these issues.

The court held that deliberately depriving a prisoner of eyeglasses, soap and toilet paper shows deliberate indifference to a prisoner's eighth amendment rights.

The confiscation of Williams' legal papers states a claim of the denial of his right of access to the courts. The confiscation of a letter sent to him by his mother states a cause of action under the first amendment.

The court discussed Williams' ad seg claims by noting California prisoners have a state created due process liberty interest in remaining out of ad seg. Ad seg may not be used as a pretext to indefinitely confine prisoners. Because Williams made only conclusory allegations about his ad seg placement the court granted ...

WA Repeals Cons Tolling Statute

The 53rd Washington Legislature unanimously amended RCW 4.16.190 to repeal the provision which tolled the statute of limitations for prisoners serving less than natural life terms. The new law went into effect on July 1, 1993. The statute of limitations in Washington State for civil rights and personal injury claims is set by RCW 4.16.080(2) at three years. Until now, that statute of limitations was tolled while a person was in prison. For example, a person had three years from the time they were released from state custody to file suit for any civil rights violations they suffered while in prison.

With the repeal of the tolling statute Washington prisoners will only have three years from the time the incident occurs in which to file suit. The reasoning behind having such a tolling statute was that prisoners were unlikely to sue prison officials while still in their custody and vulnerable to retaliation and that a free person was more likely to be able to find and retain counsel to represent them than a prisoner was.

With the repeal of the tolling statute Washington prisoners will now have to file suit within three years after an ...

Retaliatory Transfer States Claim

Michael Guglielmo is a New Hampshire state prisoner involuntarily transferred to Connecticut. Guglielmo filed suit claiming that his involuntary transfer was in retaliation for his legal activities. He also claimed that prison officials keeping materials about his litigation in his prison file labelled him a "jailhouse lawyer" and would be used against him in future prison classifications, transfers and post conviction proceedings. He also claimed he was found guilty of misconduct at a hearing he was not allowed to attend or contest. The district court granted the defendants' motion to dismiss in part and denied it in part.

The court held that Guglielmo did not state a claim concerning retention of his pro se legal materials in his prison file. The court held there was no evidence Guglielmo's litigation had been impaired or that he had been, or would be, penalized by the documents. Moreover, there is no constitutional right in not being labelled a "jailhouse lawyer" (or for that matter, as the court notes, a criminal or terrorist).

The court ruled that Guglielmo had pleaded sufficient facts to support his retaliation claim by showing a chronology of events that infers he was transferred in retaliation for his litigation ...

Default Appropriate for Obstructing Discovery

This is not a prison case but a personal injury suit concerning the faulty design of Suzuki Samurais. We are reporting it in PLN because obstruction of the discovery process by litigants is quite common and this is a good case explaining the sanctions available against not only the parties but also the lawyers who obstruct the discover y process.

A Suzuki Samurai tipped and rolled, severely injuring the driver. The driver and his family sued claiming the design was faulty. Suzuki continually and willfully refused to provide requested discovery material, even after the lower court had ordered them to produce it. The defendants also tried to conceal evidence damaging to their case (namely, a "smoking gun" memo where General Motors declined to sell the Samurai in the US due to its high center of gravity which made it unsafe. The plaintiffs were able to subpoena the memo from GM which exposed the defendant's misconduct). The district court entered default judgement against the defendants and in addition fined each defendant $5000 and each attorney $500 for their discovery violations and also made them pay the plaintiffs attorney fees and costs in bringing the motion to compel.

The court of ...

Overcrowding Emergency Measures Get Old

In Worthington v. Fauver, 440 A2d 1128 (1982), the New Jersey Supreme Court upheld an order by the governor, under the state's Civil Defense and Disaster Control Act, transferring state prisoners from overcrowded state prisons to county institutions. After more than a decade of extensions by successive governors, the court decided that enough is enough--almost. An 'emergency' within the meaning of the act no longer exists, the court declared, and the executive order is therefore invalid. However, the court gave the state a year to comply with its decision. The court refused to establish a temporal rule of thumb for determining when an 'emergency' ceases to exist. However, noting that the state's good-faith efforts to control overcrowding in prisons have failed, it said that the problem calls for an executive and legislative solution rather than an executive order under the Disaster Control Act. It acknowledged that the legislature could declare a continuing emergency and confer on the governor the authority to deal with it by executive order; or the legislature could enact a statute providing for the permanent centralization of power to allocate state prisoners among county facilities. See: Gloucester County v. State, NJ SupCt, No. A-96, 53 ...

California Prisons Grow

Since 1973 the U.S. prison population has tripled. According to a recent study by the Sentencing Project, a record 1.1 million Americans are now behind bars at a cost of $20.3 billion a year. We now have the highest rate of incarceration in the world, far surpassing second place South Africa and more than four times as large as Great Britain. For black males, our incarceration rate is nearly five times that of South Africa. And while the U.S. has been busy building jails, the South African government and the conservative British government have been developing policies aimed at reducing prison populations.

This unprecedented warehousing of prisoners has done virtually nothing to reduce crime. In California, for example, the state spent $3.2 billion in the last decade to build prisons, mostly under Republican regimes, and the prison population has nearly tripled. Yet today the state has the nation's third highest violent crime rate--and the prison system is the most overcrowded in the country. [Editor's Note: Last year in Washington State, at the height of a similar prison-building binge, violent crime increased 5.8 percent statewide and 8.5 percent in King County.] Meanwhile ...

Court Reporters Entitled to Only Qualified Immunity

Jeffrey Antoine was convicted of bank robbery in the US district court in Tacoma, WA. He appealed his conviction and ordered a copy of the trial transcript from the court reporter, May Ruggenberg. After two years of delays, filing deadlines passing, time extensions being granted, etc., Ruggenberg admitted she had lost many of her trial notes. Eventually another court reporter was able to piece together enough material from the trial to provide a partial trial transcript. The ninth circuit heard Antoine's criminal appeal some four years after he was convicted. After an evidentiary hearing in the district court it was held Antoine was not prejudiced by the lack of a verbatim transcript in his case and his conviction was affirmed.

In the meantime, Antoine had sued Ruggenberg, and her employers, for money damages resulting from her failure to provide the trial transcript in a timely manner. The district court dismissed the case, ruling that court reporters are entitled to absolute immunity. The court of appeals for the ninth circuit affirmed on that basis, see: Antoine v. Byers & Anderson, Inc., 967 F.2d 592 (9th Cir. 1992). The US Supreme Court granted certiori to resolve a conflict between the circuits ...

Prisoners Retain Right of Bodily Privacy

Male Georgia state prisoners filed suit concerning the assignment of female prison guards to prison living units. The prisoners claim that the female guards act unprofessionally when they view male prisoners in their undershorts, showering and using the toilet. They claim that the female guards flirt, seduce, solicit and arouse them to masturbate and exhibit their genitals for viewing. To cover up their unprofessional conduct when discovered by other prison officials, the guards file false disciplinary charges for obscene acts and insubordination. The prisoners claim these practices violate their rights to bodily privacy and due process.

The district court dismissed the suit holding prison officials were entitled to qualified immunity on the privacy claims. The court held the due process claims were barred by a consent decree entered in another suit on the Georgia DOC's disciplinary practices.

The court of appeals for the eleventh circuit affirmed in part, reversed in part and remanded. It held that qualified immunity defenses protect prison officials only from claims for money damages, not from claims for injunctive and declaratory relief. Thus, the lower court erred in dismissing the suit in its entirety.

The appeals court held, for the first time in the eleventh ...

Disciplinary Isolation Triggers Due Process

Prisoners suffered a violation of their due process rights when they were ordered into disciplinary isolation with out the notice and hearing procedures outlines in Wolff v. McDonnell, 418 U.S. 539 (1974), the Massachusetts Supreme Court held. The less demanding procedures prescribed in Hewitt v. Helms, 459 U.S. 460 (1983), for administrative segregation are inadequate in this context, the court said.

The inmates were ordered into disciplinary isolation for violations of prison rules but were not provided with 24 hours' notice of the disciplinary proceedings or with a written copy of the disciplinary board's findings and decision. The due process clause itself does not safeguard convicts from being sent to the "hole," but mandatory language in state prison regulations governing disciplinary isolation do provide inmates with a protected liberty interest, the court decided. As to the issue of the process due, the court distinguished disciplinary segregation from administrative segregation.

"Disciplinary segregation is a major sanction that deprives an inmate of exercise time and other privileges, an opportunity to earn good-time credits, and contact with visitors," the court noted. Accordingly, it held that whenever prison authorities impose isolation as a disciplinary sanction, they must follow the advance notice ...

Florida Conditions Lawsuit Settled After 21 years

After 21 years of protracted, time consuming and tedious litigation involving three correction's secretaries, four governors, thousands of inmates and millions of dollars, the Department of Corrections of Florida has finally resolved the legendary Costello lawsuit.

"For the first time in 21 years, the state of Florida--not the Federal Courts--has control of our prison system," Governor Lawton Chiles said.

The original suit was brought about because of overcrowding conditions and poor medical care. At a later date the prison food service also became an issue.

According to Corrections Secretary Harry K. Singletary, Jr., resolution of the long standing lawsuit was the result of much hard work by many parties. The lawsuit has been a major focus of many areas in the Florida Department of Corrections. "We are very pleased the courts have recognized our positive efforts aimed at improving care and treatment of our inmates," Singletary said. "It says we've made a great deal of progress." U.S. District Judge Susan Black even said that "we could be viewed as a model for other departments nationwide when it come[s] to dealing with overcrowding and corrections health care. I think her decision speaks for itself."

In delivering the ...

Periodical Reviews

Journal of Prisoners in Prisons is a biannual publication from Canada. Each issue is about 140 pages in length in a bound soft cover book type format. The latest issue (Vol. 4, No. 2) has several excellent articles regarding control units including lengthy, detailed pieces on Marion and events that led to the current lockdown (going on ten years now) there as well as its use as an experimental behavior modification lab. It also contains poems, letters and the articles tend to be well footnoted and referenced. Subscriptions are $10.00 a year for free people, $4.00 a year for prisoners. Write: JPP, P.O. Box 60779, Edmonton, Alberta, T6G 2S9, Canada.

Lifelines is the quarterly tabloid of the National Coalition to Abolish the Death Penalty. Each issue contains articles, news, resources and updates on abolitionist news concerning opposition to the death penalty. It has a religious focus. Recent issues have covered the death of Thurgood Marshall, the execution of Wesley Dodd in Washington state, Supreme Court rulings making executions easier for the states, etc. Subscriptions are $25.00 a year from: NCADP, P.O. Box 600, Liberty Mills, IN. 46946.

TB & Prisons: The Facts for Inmates and Officers is a 17 page booklet published by the National Prison Project of the ACLU. As readers of PLN know, there is an epidemic of the resistant tuberculosis (TB) sweeping the nation's prisons. This timely and informative booklet gives the reader a rundown on what TB is, how it is spread, how it is treated, how to know if you have TB, how to safeguard against getting it, etc. This is an excellent booklet on an issue that vitally affects everyone in prison, prisoners and staff alike. The booklet is free for single orders; bulk copies are available. I would ...

City of Refuge

Everyone has heard about alternative sentencing. What about alternative incarceration? The debate should be expanded to encompass this issue too.

When people get put in prison the great majority become distrustful, angry and radicalized. It is a symptom of theseemingly arbitrary and unfair nature of the environment. This is clearly counterproductive. Fully 99% of prisoners will, at somepoint, be released into the community. Wouldn't it be more sensible and efficient if prisoners were paroled, not alienated, but fully functioning and contributing members of society?

The unconscionably high recidivism rate conclusively proves that contemporary prisons are an unmigitated failure. They are, for the most part, destructive environs. It is time to consider a different model for incarceration.

Surveys commonly show that citizens are overwhelmingly in support of incarcerating felons. The results of surveys are often superficial, can be misleading (dependent upon how they are structured) and, most importantly, don't tell the whole story. Focus groups, in contrast, are formed to examine individual reasoning for opinions and beliefs; thus, producing erudite commentary.

When focus groups are conducted to get a better understanding of the dynamics for support of incarceration an interesting phenomenon is revealed. The underlying motivations disclose the primary ...


Federal Prison Handbook



Disciplinary Self-Help Litigation Manual



Federal Prison Handbook




Disciplinary Self-Help Litigation Manual