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Prisoner Education Guide

Prison Legal News: November, 1994

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Volume 5, Number 11

In this issue:

  1. UT DOC Violates Court Access Rights (p 1)
  2. State Must Provide Assistance for Parental Suits (p 2)
  3. UT Section 1983 Statute of Limitations Struck Down (p 2)
  4. Sexual Assault by Police States Claim (p 3)
  5. Change in Parole Eligibility Actionable Under Section 1983 (p 3)
  6. Admin Reversal Doesn't Affect Disciplinary Hearing Suit (p 4)
  7. Refusal to Help Prisoner Eat Illegal (p 4)
  8. RFRA Must Be Argued on Merits (p 4)
  9. Failure to Treat Teeth States Claim (p 5)
  10. Disputed Disciplinary Facts Require Reversal (p 5)
  11. Attorney Fees for Contempt Hearing (p 5)
  12. 4th Circuit Clarifies Eighth Amendment Standard (p 6)
  13. Idaho Cons Entitled to Pen and Paper (p 6)
  14. Transferee Entitled to Sending State Case Law (p 7)
  15. Prison Alcohol Program May Violate Free Speech (p 7)
  16. Retaliation Suit Requires Trial (p 7)
  17. Detainees Can't Be Forced to Work (p 8)
  18. Shortened Pens States Claim (p 8)
  19. Retaliation for Grievances Illegal (p 8)
  20. Evidence Must Support Disciplinary Charge (p 9)
  21. U.S. S.Ct. to Hear Prison and Parole Cases (p 9)
  22. BOP Phone Litigation Update (p 10)
  23. MA DOC Uses New Phone System (p 11)
  24. WI Removes Weights and Tennis Courts (p 12)
  25. Asset Forfeiture is Dysfunctional Policy (p 12)
  26. Hazardous Waste Found in WI Prison (p 13)
  27. DOJ Releases ADA Advisory Report (p 13)
  28. Killer Workplace (p 14)
  29. MI Parole Consent Decree Vacated (p 14)
  30. Overcrowding Leads to Pneumonia (p 14)
  31. Cooling Towers Spread Legionnaire's (p 14)
  32. Lawyers Deny Inmate Discovery Pending Motion to Dismiss in Federal Court (p 15)
  33. Santeros Win PI (p 16)
  34. No Immunity for Beating (p 16)
  35. WA Digital Probe Suits Barred (p 16)
  36. Committing Journalism - The Prison Writings of Red Hog (Book Review) (p 17)
  37. Scared Witless (p 18)
  38. The London Hanged: Crime and Civil Society in the 18th Century (Book Review) (p 18)
  39. Crisis Continues in Salvadoran Prison System (p 19)
  40. A Prison a Week (p 19)
  41. Asian Prison News (p 19)

UT DOC Violates Court Access Rights

Utah state prisoners filed a class action suit against Utah Department of Corrections (UDC) officials claiming a failure to provide them with constitutionally adequate access to the courts. The district court agreed with the prisoners and issued an injunction ordering the UDC to substantially modify its practices with regards to providing prisoners with access to the courts.

The UDC contracts with local attorneys to provide Utah state prisoners with legal assistance. In July, 1990, UDC Director Gary DeLand issued a memo stating that the legal services contract would no longer allow attorneys to provide general legal assistance in civil matters. The only legal assistance allowed under the contract would be assistance in filing writs of habeas corpus and lawsuits challenging conditions of confinement, either in federal or Utah state courts. The prisoners contend that because they do not have access to a law library and are not allowed help from jailhouse lawyers, the minimal legal assistance provided by contract was insufficient to allow them meaningful access to the courts. Specifically, they were denied assistance in the following types of legal action: divorce actions; personal injury suits; civil rights suits under 42 U.S.C. § 1983 against non-UDC employees; workers comp ...

State Must Provide Assistance for Parental Suits

Women prisoners in Michigan filed a class action suit against the Michigan Department of Corrections (DOC) challenging the decision to reduce funding to Prison Legal Services in order to end PLS assistance in parental rights matters. The prisoners argued that the decrease in PLS funding and prohibition of assistance in parental rights matters denied them their right of access to the courts and constituted contempt for previous court orders in this long running suit. In Glover v. Johnson, 478 F. Supp 1075 (ED MI 1979) the court concluded that female prisoners were denied their right of access to the courts, among other equal protection violations, and ordered extensive changes to safeguard the prisoner's legal rights. The court had previously, in 1979, ordered the DOC to fund PLS representation of prisoners in child custody disputes and/or neglect actions. The defendants never sought modification of the order and continued funding PLS to provide representation in these areas. The DOC sought to halt funding for PLS representation in parental rights cases as of February 28, 1994. The court held that this was not allowed by its previous orders and found the DOC to be in contempt of court. The court granted ...

UT Section 1983 Statute of Limitations Struck Down

In 1987 the Utah state legislature enacted section 78-12-28(3) which provided a two year period in which to bring an "action for injury to the personal rights of another as a civil rights suit under 42 U.S.C. § 1983." This is the only law of its type in the country. In the past, other states have passed similar statutes affecting § 1983 actions and they have been struck down. § 1983 does not provide a statute of limitations to actions brought under its provisions. Federal courts generally rely on a state's general or personal injury statute of limitations in determining if a § 1983 action has been filed in a timely manner. Because § 1983 suits only apply to state government officials (and their agents) for violating citizens' constitutional rights, state legislatures have periodically sought to limit its reach by imposing severe time limits on its exercise.

In 1988 a Utah citizen arrested but later acquitted on charges of selling a stolen firearm sued a county, sheriff and two deputies under § 1983 alleging false arrest. The district court dismissed the suit holding that it was not filed within the two years required by 78-12-28(3). See: Arnold v. Duchesne County, 810 ...

Sexual Assault by Police States Claim

Susan Huffman was arrested by Pacific Grove Police and taken to the police station to be held pending a recognizance hearing. During the booking procedure a policeman molested and sexually assaulted her as two other policemen ignored her cries for help, looked on and laughed at her. She remained in jail for three days and during this period jail officials refused to allow her to shower, make phone calls or have reading material. While in jail she was hog-tied in her cell and taken to court where she remained hog tied on the floor of a holding cell for four hours. The restraints caused her significant injury. On another occasion, while returning to jail her bare feet were stomped on by police after she told them she was going to file suit in federal court concerning her treatment. Huffman did file suit claiming that the above treatment violated her constitutional rights. The district court granted her In Forma Pauperis status to proceed and gave a brief legal analysis of the claims.

While pretrial detainees are not subject to the protection of the eighth amendment's ban on cruel and unusual punishment they are protected by the 14th amendment's due ...

Change in Parole Eligibility Actionable Under Section 1983

Thomas Lewis is a Tennessee state prisoner convicted in 1984 and sentenced to 30 years in prison. At the time of his conviction prisoners became eligible for parole consideration after serving thirty percent of their sentence. In 1989 the Tennessee DOC enacted Administrative Policy and Procedure 502.02 which allowed a prisoner's parole eligibility date to be extended if the prisoner were found guilty of assault by a prison disciplinary board. In 1990 Lewis was found guilty of assault by a disciplinary board and his parole eligibility date was extended by an additional thirty percent.

Lewis filed suit under 42 U.S.C. § 1983 claiming that policy 502.02 violated the Ex Post Facto provisions of the US constitution by increasing the punishment of a crime after it occurred. The district court dismissed the suit and held that the claim had to be brought under the habeas corpus statutes. Lewis duly filed his claim as a writ of habeas corpus and the court dismissed it for having failed to exhaust state remedies. Lewis filed a motion asking the court to reconsider its ruling and the court did.

The court relied on Roller v. Cavanaugh, 984 F.2d 120 (4th ...

Admin Reversal Doesn't Affect Disciplinary Hearing Suit

Robert Walker is a New York state prisoner. During a search of Walker's cell prison guards found a knife and excess bedding and infracted him for their possession. At his disciplinary hearing Walker pleaded not guilty and maintained the knife and bedding belonged to the cell's previous occupant as he had only recently moved into the cell. Walker specifically requested the unit sergeant and the guard assigned to the area to appear as witnesses at the hearing to support his defense. The hearing officer denied the request without explanation, found Walker guilty of the offenses and sentenced him to six months in segregation. Walker administratively appealed the decision which was reversed over two months after he began serving the sentence. No new hearing was held and he was released from segregation about two weeks after the reversal. Walker then filed suit under § 1983 claiming that the denial of witnesses at his disciplinary hearing violated his right to due process.

The district court dismissed the suit ruling that the administrative dismissal of the infraction cured any due process defect in the initial hearing. The court of appeals for the second circuit reversed and remanded holding that a cause of ...

Refusal to Help Prisoner Eat Illegal

A Wisconsin state prisoner suffering from amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease, had difficulty eating due to weakness in his arms, hands, jaw, facial and throat muscles used in eating due to the disease's progression. Part of the treatment for ALS is good nutrition. He filed suit in Wisconsin state court claiming that prison doctors were deliberately indifferent to his serious medical needs by not providing him with assistance in eating after it was clear it had become difficult for him to eat without assistance. The suit also claimed that the DOC classification chief had acted with deliberate indifference by delaying his transfer to another prison where such assistance was more readily available. The trial court dismissed his suit.

A Wisconsin state appeals court reversed, ruling that the prison official defendants were not entitled to qualified immunity. It held that the facts, as alleged by the suit, were sufficient to state a claim for violating the prisoner's eighth amendment rights. Because the prisoner "suffers from a serious medical condition, and treatment of the condition includes adequate nutrition," deliberate indifference to the need for feeding assistance violates the eighth amendment. "And if he cannot ...

RFRA Must Be Argued on Merits

Prisoners at the Nebraska State Penitentiary filed suit under the Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb claiming that prison officials had violated their right to practice their religion. The prisoners are adherents to Asatru, an Icelandic term for the ancient religion of the Teutons of Northern Europe. Prison officials moved for summary judgment claiming that the restrictions they had placed on the prisoners religious exercise were related to prison security.

The court denied the motion on its merits because prison officials had based their argument around the Supreme Court decision in O'Lone v. Estate of Shabazz, 482 US 342, 107 S.Ct 2400 (1987) which dealt with prisoner's 42 U.S.C. § 1983 challenge to prison officials restrictions on religious exercise. The district court noted that the RFRA was especially enacted to overrule O'Lone and applied to state prisoners retroactively. [See: PLN, Vol. 5, No 6 and 7]. Because prison officials had crafted their argument around O'Lone they had not addressed one of the RFRA issues on which they bore the burden of proof: whether they employed the "least restrictive" means of furthering a compelling governmental goal. Thus they could not succeed ...

Failure to Treat Teeth States Claim

Mark Kinney is a Missouri state prisoner. Kinney went to the prison dentist, Dr. Kalfus, for removal of a tooth that was chipped and decayed, to have a cavity filled and for treatment of gum disease. Kalfus pulled the wrong tooth and acknowledged doing so at the time. The extraction site later became infected requiring further treatment. Kalfus refused to fill in the cavity, extract the infected tooth or treat the gum disease despite Kinney's complaints that he was in pain, his gums were bleeding and he had difficulty eating.

Kinney told Kalfus he would sue him for malpractice for having removed the wrong tooth and failing to treat him. Kinney filed several administrative grievances requesting to receive immediate dental treatment from a dentist other than Kalfus. Kalfus was the official who reviewed the grievances and, not surprisingly, he denied the requests. Six months after he had initially sought treatment, Kalfus filled the cavity and another dentist extracted the infected tooth. Kinney filed suit under § 1983 claiming that the lengthy delay in treatment of his tooth problems violated his eighth amendment rights. The defendants moved for summary judgment and sought qualified immunity from damages. The district court denied both ...

Disputed Disciplinary Facts Require Reversal

Michael Mays is a New York state prisoner who was infracted for allegedly refusing to return to his cell when a guard ordered him to do so. After a disciplinary hearing Mays was found "guilty" and sentenced to segregation, loss of good time and privileges. He appealed the finding to the prison warden claiming that he was never served with a copy of the infraction report nor advised of his rights at the hearing, which was held without him. The warden reversed the infraction for "procedural error" and ordered Mays' records expunged. By that time Mays had served the segregation and loss of privileges sentence imposed at the hearing.

Mays filed suit under 42 U.S.C. § 1983 claiming that his due process rights were violated at the hearing. The district court dismissed the suit ruling that even if Mays' rights were violated the administrative reversal by the warden cured any constitutional defect at the hearing.

The court of appeals for the second circuit reversed and remanded. The state claimed that Mays was served with a copy of the report but refused to sign for it, that he was advised of his rights at the disciplinary hearing but waived them ...

Attorney Fees for Contempt Hearing

Jail prisoners of the Natrona County jail in Wyoming initiated contempt proceedings against jail officials for not having complied with the terms of a consent decree entered into between prisoners and jail officials over jail conditions. The district court concluded that the county jail officials were indeed in contempt and ...

4th Circuit Clarifies Eighth Amendment Standard

In the May, 1994 issue of PLN we reported Norman v. Taylor, 9 F.3d 1078 (4th Cir. 1994) in which the appeals court reversed the dismissal of a Virginia jail prisoner's § 1983 suit which alleged that a jail sergeant had hit him in the face and thumb with a set of keys after he had tried to smoke. After that opinion was published the appeals court granted a rehearing en banc and reinstated the dismissal of the suit. In doing so the court held that the prisoner, Norman, had not alleged sufficient injury to state a claim for an eighth amendment violation.

In Hudson v. McMillian, 112 S Ct. 995 (1992) the Supreme Court ruled that prisoners filing eighth amendment claims involving excessive use of force in non-emergency situations need not claim "significant injury" in order to succeed. The appeals court in this case has taken that to mean that "Hudson does not suggest, much less hold, that the extent of injury is irrelevant to whether excessive force has been employed and therefore that an excessive force claim cannot be defeated by evidence that the plaintiff's injury was de minimis." In making this ruling the court agreed ...

Idaho Cons Entitled to Pen and Paper

This is an Idaho criminal case which addresses prisoner's right of access to the courts in the habeas context, we address only that part of the case dealing with prison conditions. In 1989 James Free was convicted and sentenced to a term of three to ten years with the district court retaining jurisdiction for 180 days. Free was committed to an Idaho DOC facility and near the end of the 180 day period the DOC held a hearing to review Free's suitability for probation. The DOC held he was not suitable for probation and the district court duly ordered him to serve his sentence.

Free appealed claiming that his due process rights were violated by the DOC Jurisdictional Review Committee, which was the body that submitted the prison recommendation to the judge. At the time of the hearing Free was held in administrative segregation and he had requested paper and writing tools to prepare a written rebuttal statement at the hearing. Prison officials refused his request. The Idaho court of appeals held that the denial of writing materials violated Free's right to due process and of access to the courts

Probation recommendation hearings held by the Idaho ...

Transferee Entitled to Sending State Case Law

James Clayton is an Oklahoma state prisoner subjected to an involuntary out of state transfer to New Mexico. Clayton had several pro se legal matters pending in Oklahoma state courts at the time of his transfer. The New Mexico prison system did not have any Oklahoma legal materials and relied extensively on an "exact cite" paging system to provide law library access. Clayton sued New Mexico prison officials under 42 U.S.C. § 1983 claiming that they had violated his right of access to the courts by not providing him with Oklahoma legal materials and by using the "exact cite" paging system.

The district court dismissed the suit holding that the proper defendants were Oklahoma prison officials, not New Mexico officials. The court did not address the "exact cite" claims. The court of appeals for the tenth circuit affirmed in part and remanded in part.

"In the context of denial of access claims, the general rule imposes upon the sending state authorities the responsibility for ensuring their prisoners incarcerated in sister state facilities are afforded access to state courts." The appeals court rejected Clayton's argument that Rich v. Zitnoy, 644 F.2d 41 (lst Cir. 1981) required receiving prison ...

Prison Alcohol Program May Violate Free Speech

The Iowa Civil Liberties Union (ICLU) and prisoners at the Clarinda Correctional Facility (CCF) filed suit under § 1983 challenging the DOC's expenditure of taxpayer funds on an alcohol rehabilitation program called "The Other Way." According to the complaint, this program has a heavy religious component which requires participants to believe in god in general and christianity in particular. CCF prisoners were required to attend the program in order to receive parole consideration. In this case the court did not reach a ruling on the merits in considering prison officials' motion for summary judgment but it did give a detailed analysis of the relevant case law to be used in analyzing this type of claim.

The court held that because the establishment clause of the constitution prohibits the expenditure of government funds on religious activity, the ICLU and any taxpayer has standing to challenge such expenditure. In this case, the ICLU had taxpayer standing, both in its own right and as a representative of its members, to challenge the expenditure of prison funds on "The Other Way."

The defendant prison officials sought dismissal of the action on grounds of mootness because none of the prisoner plaintiffs are still at CCF ...

Retaliation Suit Requires Trial

Allan Dillon is a Virginia state prisoner who was raped by another prisoner. Lawrence Dury was the Virginia DOC (VDOC) internal affairs investigator assigned to investigate the rape. During a search of Dillon's cell pursuant to the investigation, Dury discovered papers indicating that Dillon was in the process of filing a lawsuit against him and another VDOC employee. Dillon claimed that while interviewing him concerning the assault Dury ordered him to remove him from the suit and threatened to impede Dillon's early release from prison if he did not comply. Dury filed charges of filing a false report against Dillon, which were later dismissed by a state judge who found there was sufficient evidence to suggest that a rape had in fact occurred as Dillon claimed. Dillon filed suit under 42 U.S.C. § 1983 against Dury and other VDOC employees claiming that their actions violated his right of access to the courts by retaliating against him after they learned he was in the process of filing suit against them.

The defendants filed for summary judgment and the district court granted it with regards to some of the defendants and denied it for others. The court notes that ...

Detainees Can't Be Forced to Work

Dickie Cokeley is an Arkansas state prisoner. While confined in the Arkansas DOC his criminal conviction was reversed by a federal court. Upon reversal of his conviction Cokeley asked prison officials to place him on an unassigned work status. They refused to do so and ordered him to work, when he refused to work he was infracted and punished. Cokeley filed suit under 42 U.S.C. § 1983 claiming that forcing him to work while his status was that of a pretrial detainee violated his right to due process and forced him into involuntary servitude, i.e. slavery. He also claimed his right of access to the courts was violated when prison officials denied his request to call his attorney. The district court dismissed the suit as being frivolous under 28 U. S.C. § 1915(d). The court of appeals for the eighth circuit reversed and remanded.

The appeals court held that Cokeley had stated a valid legal claim in his complaint. A successful habeas petitioner, like a pretrial detainee, has not been convicted of a crime and is being held in custody pending trial to determine guilt. "Pursuant to the due process provisions of the Fourteenth Amendment, a pretrial ...

Shortened Pens States Claim

Two prisoners in the segregation unit of the Waupun Correctional Institution at Waupun, Wisconsin, filed suit challenging the prison's practice of issuing segregation prisoners only the ink tube portion of a ball-point pen with which to write. Prisoners who modify the ink tube in anyway are only allowed a crayola crayon with which to write. The prisoners claimed they had litigation pending in the courts and as a result of the ink tube practice it was difficult for them to write pleadings in a legible manner; making carbon copies is impossible due to the tube's softness and writing with the tubes causes painful cramps and aches which discourages the prisoners from pursuing legal and administrative remedies. The prisoners filed suit under § 1983 claiming that the ink tube practice violated their right of access to the courts and sought a Temporary Restraining Order (TRO) to halt the practice while it is litigated.

The court did not rule on the merits of the case. But, in its published opinion the court reviewed the claim under 28 U.S.C. § 1915(d) and held the claim was not legally or factually frivolous and that it stated a claim upon which relief ...

Retaliation for Grievances Illegal

Gary Hines is a California state prisoner. Hines filed suit claiming that prison guards had broken his television set in retaliation for administrative grievances he had filed against them. After filing a grievance against the guards who allegedly broke his television, another guard infracted him for allegedly tampering with the seals on his television and confiscated the TV. At a disciplinary hearing Hines was found guilty and told that if he received another infraction within 90 days he would be forced to ship his TV out of the prison. Hines was later infracted and as a result lost his TV. He filed suit under 42 U.S.C. § 1983 claiming that the breaking of his TV set and the different infractions were a result of retaliation against him by prison officials after he filed administrative grievances against prison staff.

The defendant prison officials sought summary judgment claiming that the filing of administrative appeals by prisoners is not a constitutionally protected activity and therefore retaliation for such filings is not actionable under § 1983. The district court denied the motion and gave an extensive discussion of the law relevant to retaliation claims in general and those involving prison administrative grievances in particular ...

Evidence Must Support Disciplinary Charge

Indiana is unique in that it does not provide any state court remedy for prisoners who lose good time in prison disciplinary hearings. As a result, Indiana state prisoners seeking the restoration of lost good time or expungement of infractions must file directly in federal court pursuant to 28 U.S.C. § 2254, the federal habeas corpus statute.

Steven Huffman, a Westville Correctional Center prisoner, was observed in a staff bathroom with a female prison guard. Prison investigators obtained the employee's home phone records which showed she had received numerous calls from Huffman over a two week period. As a result of this investigation Huffman was infracted for "trafficking" by giving messages to Huffman over the phone and in person at the prison (i.e. speaking to her). Huffman was found guilty of the charges and an unspecified punishment was imposed. The case does not state what action, if any, was taken against the guard.

Indiana Code Section 35-44-3-9 defines trafficking as taking an article to or from a prisoner in a penal facility without the warden's authorization. In granting Huffman's petition for habeas corpus the district court held that the infraction report did not list any ...

U.S. S.Ct. to Hear Prison and Parole Cases

The 1994-95 term of the United States Supreme Court began on October 3, 1994. Among the cases scheduled for hearing by the Supreme Court are two cases previously reported in PLN which will have wide ranging effect.

California Department of Corrections v. Morales, 93-1462, is the state's appeal from the ninth circuit ruling at 16 F.3d 1001 [See: July, 1994, PLN] in favor of Morales. Morales is a California state prisoner who was convicted of murder for the second time in 1980. At the time of his second conviction California law provided for annual parole hearings once a prisoner was eligible. This law was later amended to allow for parole hearings every three years. Morales went to his first parole hearing in 1989 and was scheduled for another one in 1992. He filed a habeas corpus petition challenging the change in parole hearings as a violation of the Ex Post Facto clause of the constitution. The Ex Post Facto clause prohibits increasing the penalty or punishment of crimes after they were committed or criminalizing conduct after the fact.

The ninth circuit court of appeals agreed with Morales and granted his writ of habeas corpus, stating that he was ...

BOP Phone Litigation Update

In the March, 1994, issue of PLN we reported on Washington et al. v. Reno, et al., a lawsuit filed by women prisoners at FCI Lexington challenging the federal Bureau of Prisons (BOP) newly implemented Inmate Telephone System (ITS). [Editor's Note: For a full account of the ITS operations and the issues raised in the suit and the preliminary rulings please refer to the March, 1994, issue.] The suit was initially filed in May, 1993, and the court appointed counsel to represent the plaintiffs in the action. In the amended complaint, the plaintiffs challenge the ITS on grounds of free speech, due process, eighth amendment, equal protection and constitutional taxing powers. They also challenged the BOP's violation of its own administrative rules regarding the ability of prisoners to place collect calls and the BOP's failure to comply with the Administrative Procedures Act (APA). The BOP's "Request for Telephone Privilege" was challenged under the Privacy Act as unduly intrusive. Also challenged was the BOP's attempt to condition phone use upon participation in the Inmate Financial Responsibility Program (IFPR), i.e. payment of fines and such. The suit attacked the use of profits from the Commissary/Inmate ...

MA DOC Uses New Phone System

By Paul Wright

As part of the nationwide trend towards more restrictive and more expensive prison phone systems, the Massachusetts DOC signed a contract with NYNEX on January 27, 1994, for the provision of phone services to Massachusetts prisons. The new phone system includes monitoring and taping of all calls; the pre-approval by the prison warden of all numbers to be called; the listing, by name, of each person the prisoner will call; the limiting of total personal numbers to ten per prisoner; limiting of all attorney numbers to five. All calls are made by a recorded voice announcing that the call is coming from a prison. The length of calls is limited and the new system disallows use of third party and call waiting services. Prisoners seeking to change or add a number to their approved list (say a relative moves) can only do so once every three months.

In order to use the system prisoners must accept a Personal Identification Number (PINS). Massachusetts prisoners have actively resisted the imposition of the new phone system., which went on line in April, 1994. At Bay State, a prison housing mainly long term prisoners, of 266 prisoners only 17 took PINS ...

WI Removes Weights and Tennis Courts

Wisconsin's hard-line Republican Governor Tommy Thompson, apparently concerned about his upcoming re-election bid, has ordered all weights and tennis courts removed from the Wisconsin prison system by October 1, 1994. Wisconsin prison officials were in the process of conducting an inventory of weights and tennis equipment after which the weights and tennis equipment would be declared surplus and disposed of.

Prison officials claimed that the tennis courts were expensive to maintain and could be converted to more useful space. However, most of the "tennis courts" are simply nets and stripes on blacktop parking lots or other unused prison space.

In a letter to prison director Michael Sullivan, Governor Thompson ordered the prison boss to convene a task force "to increase employment for prisoners, to link prisoner jobs to jobs in the community after release and to recommend changes in laws that inhibit these efforts." Thompson, who has gained national publicity for his aggressive attacks on welfare recipients, said "there is no free lunch in Wisconsin prisons" and that it was time to cut prisoner idleness and expand their workload.

Asset Forfeiture is Dysfunctional Policy

Two sociologists received the l994 Academy of Criminal Justice Sciences Award for their undercover study and critical analysis of asset forfeiture's impact on police procedure. Drug Enforcement 's Double-Edged Sword: An Assessment of Asset Forfeiture Programs, by Mitchell Miller, Tennessee State University, and Lance H. Selva, Middle Tennessee State University, a scholarly examination of drug enforcement's use of asset forfeiture, will appear in a forthcoming issue of Justice Quarterly.

The study is based on twelve months of covert observation from within narcotics enforcement agencies by one of the authors who assumed the role of confidential informant in undercover drug investigations. The researchers assessed the effect of forfeiture on police conduct and case selection. Their findings "suggest asset forfeiture is a dysfunctional policy that has, in implementation, strayed from its original intent.... Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice."

The undercover researcher observed agencies abandon investigations of suspects they knew were trafficking large amounts of contraband simply because the case was not profitable. Agents routinely targeted low level dealers rather than big traffickers, who are better able to insulate themselves ...

Hazardous Waste Found in WI Prison

Since 1993 the Wisconsin Department of Corrections has been the subject of several scathing investigations by that state's Department of Natural Resources (DNR). The investigations have made several alarming discoveries, concluding that the DOC is failing to keep track of and properly dispose of hazardous industrial and agricultural waste.

An unlicensed dump at the Oregon prison farm, south of Madison, was discovered in the aftermath of a June, 1993, tornado that swept through the area. When DNR staff investigated they discovered pesticides, paint, tires, barrels containing unidentified liquid waste, empty fuel oil tanks and other refuse, according to Mike Degan, DNR hazardous waste unit leader for that district. The DOC, when questioned about the dump, said they were not aware of the dump site and blamed it on prisoners. [See: Dec. 1993, PLN.] In July, 1993, Dodge County Court Judge Joseph Schultz ordered the DOC and Badger State Industries (the DOC run industrial company) to write an environmental clean up plan because the prison at Waupun had earlier been found in violation of state hazardous waste storage and disposal laws. The court said the plan was needed "to avoid violations of environmental laws" and gave the DOC a December ...

DOJ Releases ADA Advisory Report

In 1990, Congress passed the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12134, which prohibits discrimination against the disabled by state and local government entities. The ADA applies to criminal justice agencies, including prisons and jails. The Department of Justice (DOJ) is one of eight federal agencies charged with enforcing the ADA and has issued its report: The Americans With Disabilities Act and Criminal Justice: Providing Inmate Services, which gives an excellent, comprehensive overview of what accommodations to the disabled must be provided by state agencies. The ADA allows citizens to privately sue agencies for money damages and injunctive relief in order to ensure compliance with the ADA. As PLN has reported in the past, this private right of action applies to prisoners and jail detainees as well. See: Noland v. Wheatley, 835 F. Supp. 476 (ND IN 1993).

The DOJ report gives a legal overview of the ADA's requirements as applied to prison programs and advice aimed mainly at prison administrators on how to comply with the ADA and thus avoid violating its provisions. This includes identifying prisoners with disabilities during intake classification and ensuring that an evaluation of existing prison programs is made, then modified ...

Killer Workplace

On June 15, 1994, a conference on workplace violence was held at Boeing's Renton campus near Seattle, WA. The topic was growing workplace violence, defined as workers striking out rather than companies maiming, poisoning, exploiting workers and the community. According to Dr. Kevin Flynn, a consultant to Fortune 500 companies, homicide is the No. 1 cause of death in work force for women and the No. 3 cause for men. He said it accounts for 12 percent of all work related deaths and 42 percent of female deaths on the job. In 1993, 110,000 incidents of workplace violence were reported in the US. An estimated 750 people were killed in the workplace, according to Flynn.

Six weeks later the Justice Department issued a report on this topic that differs from Flynn's numbers. On July 25, 1994, the Department of Justice's statitistics bureau issued its first ever report on "violence" in the workplace (not that done by employers of course). According to the report, almost 1 million violent crimes occur in the workplace each year. Ten percent of such crimes involve offenders armed with handguns. Based on national household surveys the report found that men are more ...

MI Parole Consent Decree Vacated

In 1977 Michigan state prisoners filed a class action suit challenging the procedures by which they were granted or denied parole. In 1981 the US district court in Michigan entered a consent decree settling a lawsuit between the Michigan state Parole Board and Michigan state prisoners. The decree required the state to follow detailed procedures for the conduct of parole hearings and rehearings, to publish parole board rules, establish and follow parole rules, allow prisoner access to parole files and to staff parole units. After entering into the decree the state never fully complied with its contents and repeatedly motioned the district court to vacate the consent decree. The district court refused to do so and entered an injunction ordering the defendants to comply with the decree and also appointed an independent monitor to ensure compliance. The parole board appealed the rulings. After seventeen years of litigation and several trips through the courts the sixth circuit court of appeals, en banc, reversed and remanded the case to the lower court with instructions to dissolve the decree.

In its ruling the appeals court gives a brief analysis of the standard of review to be applied in reviewing and modifying consent decrees ...

Overcrowding Leads to Pneumonia

On September 8, 1994, the New England Journal of Medicine published the report of an investigation conducted by the U. S. Centers for Disease Control and Prevention into the outbreak of a deadly form of pneumonia in the Harris County (Houston) jail in Texas in 1989. The outbreak was caused by a bacteria known as streptococcus pneumoniae which causes pneumonia or more serious blood infections. This outbreak was the first in what has become a series of pneumonia infections in crowded places, including prisons, jails, military bases, day care centers and nursing homes.

Dr. Robert Breiman, whose team investigated the Harris County jail outbreak, said "We think this was a sentinel in the reemergence of that disease." The study concluded that the bacteria was fostered by the cramped, airless conditions that gave each jail prisoners less than 34 square feet of living space. The 13 story jail was designed to hold 3,500 prisoners but at the time of the outbreak held 6,700, with half sleeping on the floor on mattresses. The outbreak affected 46 prisoners in one month, killing two. Investigators discovered that no prisoners with more than 80 square feet of living space were affected. They also ...

Cooling Towers Spread Legionnaire's

The Federal Centers for Disease Control (CDC) has issued a report stating that cooling towers holding contaminated community water can lead to serious outbreaks of Legionnaire's disease, a pneumonia like illness that can be fatal. The bacteria causing the disease are spread by water or air conditioning systems. More than 1,000 cases a year are reported to the CDC but health officials say most cases are not diagnosed and that about 25,000 people a year fall ill from it.

One outbreak in a Michigan state prison earlier this year affected 17 people, killing one. Investigating that case and several others in civilian communities, health officials concluded that cooling towers were the source of the contamination. Cooling towers had been previously identified as possible transmission routes but this is the first time they were identified with actual outbreaks of Legionnaire's disease. The CDC is now developing guidelines for the prevention of Legionnaire's disease, including improved maintenance of cooling towers. Many prisons, especially those in rural areas, are supplied by water cooling towers.

Lawyers Deny Inmate Discovery Pending Motion to Dismiss in Federal Court

In all the lawsuits brought by federal prisoners against prison staff, the U.S. Attorney who defends them will usually file a Motion to Dismiss or in the Alternative for Summary Judgement in favor of the defendants. Plaintiffs should respond quickly and firmly requesting the court to review the matter or appeal.

A prisoner files his complaint, then attempts discovery proceedings. The government then files their response, and a motion to dismiss. If you pursue your discovery proceedings, they will file a motion to stay discovery waiting for the judge to rule on their motion to dismiss.

The usual defense by the government says; 1. Plaintiff has failed to state a claim for violation of his constitutional rights. 2. The defendants are entitled to qualified immunity. 3. In the alternative, the defendants are entitled to summary judgement because there are no disputed issues of material fact and they are entitled to a judgement as a matter of law. 4. Plaintiff has failed to state a claim for which relief can be granted.

Of course, this is a boilerplate response and you should expect them to try to avoid responding to your discovery request. But they do it under what they ...

Santeros Win PI

Santeria is a religion which combines aspects of Catholicism and African animism. Believers worship saints, or orishas, who have their own personalities and characteristics. Santeria is widely practiced in Caribbean and Latin American countries. In Church of the Lukumi Babah Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217(1993), the supreme court discussed Santeria and its entitlement to constitutional protection. One of the requirements of Santeria is that its adherents wear colored beads with the colors of their patron Orisha as well as colored beads for the Orisha of specific days.

On January 4,1994, the New York Department of Corrections (DOC) promulgated directive 4202 which allowed Santero prisoners to own but not wear beads. The DOC claimed that the policy was necessary to prevent the use of beads by gangs in the prison system. Two prisoners filed suit claiming that the directive violated their rights to religious freedom and expression. The district court appointed counsel and granted the plaintiff's motion for a Preliminary Injunction (PI) preventing the DOC from forcing compliance with its directive. The court's well reasoned opinion will be useful to anyone litigating a religious freedom claim.

In granting the PI the court ...

No Immunity for Beating

Thomas Munz was an Iowa state prisoner called to testify in federal court. Munz was taken to the court by federal marshals. En route to the court, while bound hand and foot, Munz became violent and vandalized the interior of the marshal's car. When Munz and his escort arrived at the Linn County jail, where he would be held pending his testimony in court, he was passive and cooperative with the marshals. Munz claimed that he was pulled out of the car, slammed against a wall, taken to a padded cell where marshals and jailers proceeded to beat, kick and stomp him. Throughout the beating Munz was handcuffied, with leg restraints and a belly chain. Munz filed suit claiming that the beating violated his eighth amendment right to remain free of cruel and unusual punishment.

The marshals sought summary judgment on various grounds, which the district court denied. The court specifically held that the marshals were not entitled to qualified immunity because a reasonable Marshall would have known that beating a bound prisoner in a cell was neither reasonable nor lawful. The defendants appealed the lower court denial of their summary judgment motion and the court of appeals for ...

WA Digital Probe Suits Barred

In 1984 the Washington state DOC opened two control units and initiated a policy whereby all prisoners transferred to the Intensive Management Units (IMU) were subjected to a digital rectal probe, or digital rape, upon entry. The "searches" were conducted on a blanket basis with no individual suspicion being required. Thousands of such "searches" were conducted and no contraband was recovered. After extensive litigation the practice was found unconstitutional, see: Wetmore v. Gardner, 735 F. Supp 974 (ED WA 1990), but on appeal the defendants were awarded qualified immunity from personal liability and thus no damages were awarded, see: Hemphill v. Kincheloe, 987 F.2d 589 (9th Cir. 1993). The ruling in Hemphill affected the damage claims of more than 100 Washington prisoners who had been subjected to the "searches" and who filed suit seeking money damages. Their claims were all consolidated into Hemphill for the purposes of addressing the qualified immunity question.

David Castillo, a Washington state prisoner, filed suit seeking only money damages for a digital rectal search conducted pursuant to the unconstitutional blanket search policy. The district court granted summary judgment to defendants Larry Kincheloe, the former prison warden, and Booth Gardner, the former governor, on collateral ...

Committing Journalism - The Prison Writings of Red Hog (Book Review)

By Dannie M. Martin & Peter Y. Sussman

Review by Bill Jeffcott

"I committed bank robbery and they put me in prison, and that was right. Then I committed journalism and they put me in the hole. And that was wrong." This is the opening statement in Dannie M. Martin's first book, Committing Journalism. Joining him in his effort is Peter Y. Sussman, a long time editor of the San Francisco Chronicle's"Sunday Punch" section.

Dannie Martin, also known as "Red Hog" throughout the prison system for his red hair and long past dispute over a pork chop, was serving a 33 year sentence at the United States Federal Penitentiary in Lompoc, California. And during this course of time, Sussman published a compelling report on AIDS in the federal prison system written by Martin. And with a powerful public response, this behind the walls prison journalist and free world newspaper editor, teamed up and went on to publish over fifty editorals over the next several years.

Martin, a self educated man, is well known for his alcohol/drug abuse troubles and his fighting abilities in his younger years. And in his book, he takes you down the road of ...

Scared Witless

The fear in her voice reverberated throughout talk-radio land. The elderly woman was among a parade of callers who passionately supported the caning of 18-year-old Michael Fay, who'd pled guilty to vandalism in Singapore. When the host asked why such a brutal punishment was appropriate, she replied that something, anything, had to be done to stop the epidemic of crime. She went on to say that she was unable to walk to her car right in front of her house without fear of attack. Noting that the caller lived in Foxborough, a reasonably bucolic suburb of Boston, the host asked if she or anyone she knew had been a victim of crime or even an attempted crime in the past five years. "No." "Well, then how do you know it's so dangerous out there?" "Because they say it is." "Who are they?" "The people on television."

In January of this year, George Gerbner, who has been studying the social impact of television for decades, released a draft report on TV violence that comes the closest to connecting cause and effect. Dividing subjects into light viewers (under two hours of television viewing daily), medium viewers (two to four hours ...

The London Hanged: Crime and Civil Society in the 18th Century (Book Review)

by Peter Linebaugh
(Cambridge University Press, 1992)

Review by Sandy Judd

A title like The London Hanged might make a person think this is another book about death--an 18th century version of those true crime books about people like Ted Bundy--but it isn't. Instead, it's about the struggle to survive. Author Peter Linebaugh is a social historian who has taught at such institutions as the Federal Penitentiary in Marion Illinois and Harvard University, giving him both the academic and the real-life credentials to write authoritatively about a struggle to survive that took place two centuries ago.

The book opens with the story of Jack Sheppard, a carpenter turned burglar who was famous for his ability to escape from prison. A folk hero hated by the ruling class for his attitude, Sheppard embodied Linebaugh's definition of idleness: "the refusal of discipline, subordination or obedience." After being sentenced to die, he received a visit by a prison official interested in saving his soul. Sheppard replied, "One file's worth all the Bibles in the world."

Linebaugh's main theme is that most of the people who were hanged in London during this period were executed for trying to support ...

Crisis Continues in Salvadoran Prison System

As reported in the October, 1994, issue of PLN, the prison system of El Salvador remains locked in a crisis of overcrowding, spiraling violence and unrest. This trend continues. On September 13, 1994, prisoners at the Central Penitentiary in San Vicente, in the central part of the country, rioted, leaving 17 injured and three dead. The dead prisoners were accused of stealing from their fellow prisoners, a group of hooded prisoners cut the hands off of two prisoners before killing them, a third was decapitated. Police said the bodies also showed burn marks.

In a separate riot, the same day, at the San Miguel prison, 300 prisoners rioted, injuring at least 16 people. The riot was sparked by the transfer of 13 prisoners, classified as "highly dangerous" by the government, to other prisons. At least one policeman was injured after some 50 riot police entered the prison to suppress the riot and disarm prisoners. Firemen put out fires started by prisoners protesting poor living conditions.

Prison riots in El Salvador, generally sparked by bad conditions, have claimed the lives of 63 people since the end of 1993 and injured more than 85. The country's 14 prisons have a capacity ...

A Prison a Week

According to the Bureau of Justice Statistics Bulletin, Prisoners in 1993, the nationwide 7.4% growth rate of state and federal prison populations in 1993 translates to 1,254 additional prisoners each week. This rate of growth can only be supported by building one 1,254 bed prison somewhere in the United States every week. Prison populations reached a record high of 948,881 in 1993. That number is presumably well over one million by now. State and federal prison populations have grown at an average rate of 8.3% per year since 1980 when the prison population stood at 329, 821. The prison population has risen 187.7% since 1980.

California imprisons the largest number (119, 951) followed in order by Texas (71,103), New York (64,569), Florida (53,048) and (Ohio (40,641). The states with the highest incarceration rates (prisoners per l00,000 residents) are Texas (553), Oklahoma (506), Louisiana (499), South Carolina (489), and Nevada (438). The largest population increases in 1993 were reported by Connecticut (20.1%), Texas (16.2%), Minnesota (15.5%), Mississippi (15.2%), and Oklahoma (10.7%). In the five year period ending in 1993, the states with the largest increase ...

Asian Prison News

Indonesia: The warden at the Kedungpane prison in Semrang announced that new good time releases would be offered to prisoners who donated blood and organs. Each blood donation by a prisoner would result in a six month time reduction per year. Donation of an organ would bring an immediate time cut of six months. The warden claimed the program is voluntary and not open to prisoners serving life times.

Thailand: Thai prisons are faced with an AIDS crisis according to prison doctors. Thailand holds almost 100,000 prisoners in 108 prisons across the country with hundreds of seriously ill prisoners overburdening the prison system medical facilities. An average of one prisoner a day dies of AIDS according to Chon Lerwitvorapong, a prison doctor in Bangkok. Chon said the AIDS epidemic had reached a crisis point with 400 prisoners suffering from AIDS in Klong Prem's 320 bed hospital. The remaining AIDS patients have to sleep on the floor. Thai health officials estimate that more than 600,000 people in Thailand are infected with AIDS/HIV. It is not known how many prisoners are infected because prison officials cannot force prisoners to take blood tests and lack the resources to do ...


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