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Prison Legal News: August, 1993

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...