Prison Legal News:
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Volume 5, Number 2
In this issue:
- How to Secure the Attendance of Witnesses at Trial (p 1)
- Ninth Circuit Upholds Ban on Attorney Contact Visits (p 2)
- Murder Incorporated (p 3)
- Qualified Immunity Law Clarified (p 3)
- California DOC Starts Use of Electric Fence (p 4)
- Shackling of Con Litigants Discussed (p 4)
- Reviews (p 5)
- Estate Proper Party When Defendant Dies (p 6)
- Officials Must Assess Informant's Credibility (p 6)
- Delay of Medical Care States Claim (p 6)
- Prisoner Entitled to Interest From Prison Account (p 7)
- Loved One in Prison? (p 7)
- No Right to TV Interviews (p 7)
- More Censorship and Repression in Indiana (p 8)
- Twenty-Seven Cons Die in El Salvador Riot (p 8)
- Class Differences in Crime Control (p 8)
- What's Wrong in the Ohio DOC? (p 9)
- City Liable for Negligent Medical Care (p 10)
- Involuntary PC Violates Due Process (p 10)
- WA DOC Wants to Open New Prison, Close Old Ones (p 10)
- Attorneys File Briefs for Peruvian POW's (p 11)
- Third Circuit Announces Rules for Appointment of Counsel (p 12)
- Rule of Law or Rule of Five? (p 13)
- Court Upholds Silencing of Dan Quayle's Drug Supplier (p 14)
- From The Editor (p 15)
Most prisoner civil rights claims are filed by prisoner litigants who are representing themselves because they either cannot afford or cannot obtain counsel to do so. They can rarely afford to pay the relevant filing fees normally required to begin litigation and thus proceed in forma pauperis with the court waiving the filing fees. This is permitted under 28 U.S.C. § 1915, known as the in forma pauperis statute. A problem that arises is when the prisoner litigant survives summary judgement and is preparing for trial. In order to secure the attendance of witnesses, especially hostile witnesses such as DOC employees, it is necessary to serve them with a subpoena, witness and mileage fees. Which most prisoners cannot afford.
I recently faced this situation in Wright v. Blodgett , a civil rights suit I have been litigating since 1991. During settlement negotiations the attorney general told me there was no point in going to trial as I would be unable to present any witnesses because I could not afford to subpoena them. The practice of the Washington DOC is not to permit it's employees to appear as witnesses for prisoners unless they have been subpoenaed, knowing ...
By Paul Wright
The claims concerning the ban on employing HIV+ prisoners as food service workers was dismissed for lack of standing. None of the named plaintiffs were HIV+ nor had they sought nor been denied employment for being HIV+. Thus, none of plaintiffs had suffered injury in fact and lacked standing to challenge the disputed policy because they had not been subjected to it. This was remanded to the district court with instructions to dismiss.
The Arizona DOC ban on attorney contact visits affects prisoners housed in the Alhambra ...
This is a class action suit filed by Arizona state prisoners. They sued on two issues. First, they contend that the Arizona DOC's policy and practice of banning all contact visits between prisoners and their attorneys at various prisons violates their right of access to the courts. Secondly, they claimed that the ban on employing HIV+ prisoners as food service employees violates 29 U.S.C. § 794 (1988). The district court entered summary judgement in the prisoners' favor on both issues in Casey v. Lewis , 773 F. Supp 1365 (D Az 1991). Prison officials appealed and the court of appeals for the ninth circuit vacated in part, reversed in part and remanded.
The U.S. Bureau of Prisons recently designated the U.S. penitentiary at Terre Haute, Indiana, as the facility at which prisoners sentenced to death by the federal courts will be housed until they are executed by lethal injection. The federal government has never previously maintained a death row. Federal executions were formerly carried out at state facilities, the official murder of Julius and Ethel Rosenberg in Sing Sing, New York, in 1953, being a case in point. The last federal execution was in 1962 in Iowa. There are currently five prisoners under federal sentence of death, all pursuant to the drug kingpin law.
USP Terre Haute staff have been moving rapidly to implement the death designation. D unit, a block at the west end of the prison with approximately 60 double cells has been emptied and is being modified to serve as death row. Associate Warden Bledsoe opined that we would "see something in six to nine months." When asked why such a large unit was necessary with only five federal death sentences outstanding, Associate Warden Edenfield said they were just planning for the future. Warden Keohane claimed the death row had been imposed upon Terre ...
By Bill Dunne
The defendant jail officials sought summary judgement on the grounds that they did not use excessive force and even if they did, they were entitled to qualified immunity because Rankin had not alleged a significant injury which was the legal requirement for excessive force claims at the time the beating took place. The district court denied the motion and the defendants filed an interlocutory appeal.
The court of appeals for the fifth circuit ruled that the district court had erred in applying the Supreme Court's ruling in Hudson v. McMillian , 112 S.Ct. 995 (1992), to the second prong of the inquiry into the ...
Joseph Rankin was a pretrial detainee in the Harris County, Texas, jail. While awaiting a court appearance in a large holding cell a disturbance broke out after female prisoners passed in front of the cell. A deputy sheriff removed Rankin from the cell and, according to Rankin's complaint, placed him in a "compliance hold," slammed him against a wall and floor, handcuffed him and stomped on his back and legs. Rankin suffered injuries to his knee, throat and a finger. Rankin then filed suit under § 1983 contending that the beating violated his constitutional rights.
As many as 20 other California state prisons will get electric fences in upcoming years. The California DOC estimates the fences could save the state $34 million a year by reducing the number of tower guards. They did not disclose how much it costs to operate and maintain the electric fence.
"The fence doesn't get distracted, it doesn't look away for a moment and it doesn't get tired," Warden K.W. Prunty was quoted as saying, "We already had a lethal perimeter. This is simply a way to keep that same level of security while saving money."
On November 8, 1993, guards threw the switch on an electric fence surrounding the maximum security prison at Calipatria, CA. The $1.5 million fence stands 13 feet high, erected in a no man's land between two 12 foot fences topped with razor wire so that no one touches it accidentally. It carries 4,000 volts and 650 milliamperes. About 70 milliamperes is enough to kill a person.
The court lists numerous instances where courthouse personnel have been killed or wounded in courtroom and law firm attacks, including some involving criminal defendants in the court where this trial was held. Noting that in Illinois v. Allen , 397 US 337, 90 S.Ct. 1057 (1970) the Supreme Court upheld the shackling of criminal defendants, the court notes there is nothing to prevent a trial court from taking steps to restrain potentially disruptive prisoners, witnesses or anyone else in the court room.
Readers should note that in this case the plaintiff, Woods, appeared in civilian clothes throughout the trial and was not shackled. He claims that the restraints and prison clothing on his witnesses undermined their credibility.
The court outlines the balancing test to ...
Joe Woods is an Illinois state prisoner. He sued prison officials claiming his eighth amendment rights were violated when they did not feed him for two days during a lockdown. A jury ruled in favor of the prison official defendants. Woods appealed claiming that the appearance of his prisoner witnesses in prison clothes and arm and leg restraints prejudiced his case and denied him a fair trial. The court of appeals for the 7th circuit affirmed.
Jail Suicide Update is a quarterly newsletter published by the National Center on Institutions and Alternatives. While focusing primarily on suicide prevention in jails its information is useful for prison administrators seeking to prevent suicides in prison as well as attorneys litigating custodial suicides. The most recent issue had articles on the suicide prevention programs at the North Brunswick, NJ, jail and Marion County, OR, jail. The articles, written by jail staff, emphasize the need for proper policies and critical administrative reviews of policies and practices. Each issue also carries updates on court decisions affecting this issue. The NCIA also has other materials on jail suicide prevention available. For more information contact: Lindsay Hayes, Project Director, NCIA, 40 Lantern Lane, Mansfield, MA. 02048. (508) 337-8806.
Mothers Against Police Harassment Newsletter is a monthly newsletter published by this group, the MAPH. The MAPH is a grassroots Seattle community organization which is dedicated to combatting police abuse and harassment of citizens. They monitor complaints against police and distribute educational materials informing citizens of their rights when confronted by police. They also hold educational workshops for youth and immigrants. There many groups similar to MAPH across the US but this ...
By Paul Wright
The district court denied the motion by noting that because the suit was against Patrice in his individual capacity it did not become moot upon his death. Instead, the proper procedure under Fed.R.Civ.P. 25 (a)(1)is to substitute the defendants' estate as a party. The court also ruled that the statement of death submitted by the AG was insufficient because Rule 25 requires that when a party dies during a suit their counsel must submit a statement of death within 90 days which requires the naming of the executors of the estate. The purpose of this requirement is to permit the action to continue until it is resolved.
Suits against officials in their official capacity are different. In those cases Rule 25 (d)(1) requires that the officials successor in office be named as ...
Jerry Young is a New York state prisoner. He filed suit under § 1983 claiming that Terry Patrice, a prison guard, had beaten him. During the pendency of the suit it appears that Patrice died. The attorney general filed a motion to dismiss the suit claiming that because the sole defendant had died the case was moot and no cause of action remained.
Richardson then filed a writ of habeas corpus in state court which was granted. The state court ruled that the hearing officer had no basis upon which to evaluate the credibility of the informants against Richardson and this violated due process. The court vacated the disciplinary finding and ordered it expunged from all prison files.
Richardson filed suit in federal court pursuant to § 1983 seeking monetary damages, attorney fees and costs. The district court granted the defendants motion for summary judgement by holding that because Caroline was able to identify his assailant there was sufficient evidence in the record to uphold the ...
Kevin Richardson is a New York state prisoner. In 1985 he was infracted for allegedly stabbing James Caroline, another prisoner. At the disciplinary hearing Caroline submitted a statement on Richardson's behalf stating that Richardson was not the assailant. The hearing officer heard testimony, outside of Richardson's presence, from other prison officials that Caroline and other prisoners had identified Richardson as the assailant. The hearing board found Richardson guilty of the infraction and sentenced him to one year in segregation and one year's loss of good time. The finding and sanction were upheld on administrative appeal.
Harris filed suit under § 1983 claiming that the delay of necessary medical care by the sheriff violated his eighth amendment rights by showing deliberate indifference to his medical needs. The jail defendants sought summary judgement on grounds of qualified immunity for their actions which the district court denied. The defendants filed an interlocutory appeal which the court of appeals for the eleventh circuit denied
The appeals court ...
Willie Harris was a pretrial detainee in the Coweta County, Georgia, jail. When he was arrested his hand was injured by tight handcuffs. Upon arrival at the jail, on September 6, 1990, he requested treatment for the injury. He was seen by the jail nurse on September 28 and later by the doctor who recommended a nerve conduction study. In November Harris requested medical attention for his hand which was now curled up and unusable. Upon being taken to the local hospital emergency room, the treating doctor called the sheriff's office and told them Harris required treatment and surgery. Unable to make bond Harris remained in jail and received no treatment or surgery. On March 11, 1991, he received the needed surgery, after he had been transferred to the state prison system.
Lester Tellis is a Nevada state prisoner. He requested that prison officials credit his personal property account with the interest actually earned on those funds. The officials refused, claiming that Nevada Revised Statute 209.241 grants the Director of Prisons authority to use interest earned on prisoners' personal accounts at the directors discretion.
Tellis filed suit under § 1983 claiming that the refusal to credit his account with the interest it had earned constituted a seizure of his property without due process in violation of the fifth and fourteenth amendments. The district court granted summary judgement to the defendants, holding Tellis had failed to establish a protected property interest in the interest earned by his funds. The U.S. court of appeals for the ninth circuit disagreed and reversed the lower court.
The statute in question, NRS 209.241 states in relevant part: "1. The director may accept money, including the net amount of any wages earned during the incarceration of an offender after any deductions made by the director, and valuables belonging to an offender at the time of his incarceration or afterward received by gift, inheritance or the like, or earned during ...
Prisoner Entitled To Interest From Prison Account
I hope to provide them some answers as how others have done it before them. My book will be edited from anonymous questionnaires and personal interviews to combine the coping techniques of hundreds of individuals. I need to reach as many of those already with experience in this. To obtain questionnaires or more information, write:
268 Bush Street
San Francisco, CA 94104
As a writer and spouse of an incarcerated man, I am putting together a book to help people deal with the problems involved in having a loved one in prison. Through the initial detainment, trial, jail time and resulting imprisonment, the family on the outside first goes through shock and denial, but must, finally, come to the reality of the daily struggle to survive outside, provide for their family and to maintain relations with their loved one in prison while facing the yawning years ahead. How do they do it?
The appeals court notes that the Supreme Court has long held that the news media has no right to personally interview prisoners, Pell v. Procunier , 417 US 817, 94 S.Ct. 2800 (1974) and Saxbe v. Washington Post , 417 US 843, 94 S.Ct. 2811 (1974). Moreover, Johnson lacked standing to assert the first amendment rights of Hard Copy .
Prisoners too have no right of in-person access to the news media, Seattle-Tacoma Newspaper Guild Local #82 v. Parker , 480 F.2d 1062 (9th Cir. 1973). Denying media access to conduct face-to-face interviews ...
Walter Johnson is a Kansas state prisoner. The television news program Hard Copy sought to conduct a face-to-face interview with Johnson. Johnson had communicated with the program by phone and mail. After initially being denied access to the prison, Hard Copy reiterated its request in a letter which prison officials again denied. Prison officials claimed that such interviews were disruptive to the operation of the prison. Johnson filed suit under section 1983 claiming that the denial of access to be interviewed by Hard Copy violated his first, eighth and fourteenth amendment rights. The district court dismissed the suit and the court of appeals for the tenth circuit affirmed.
Guards also confiscated personal writings and legal materials from Shakur. So far none of the prisoners have been given any kind of notice concerning the confiscation. The orders to confiscate HRHH were apparently given by the Indiana DOC Deputy Commissioner, John Nunn. The report PLN received was written shortly after the above events, but it appears that the shakedown for HRHH was statewide and not just confined to the MCC.
The prisoners are initiating legal action for it's confiscation of the materials based on their political content, long after the publications had been permitted to enter the prison system. They are seeking assistance from counsel due to the difficulties in conducting litigation from a control unit under these types ...
On November 7, 1993, guards at the Maximum Control Complex (MCC) in Westville, Indiana, searched the cell of Shaka Shakur seeking to confiscate all copies of Human Rights Held Hostage , a civil/human rights publication. Not finding any copies they searched the other cells in the section. Still not finding any copies they locked down the entire MCC and shook it down. This time all typed political essays and even the back issues of HRHH were confiscated by the administration.
On November 19, 1993, prisoners at the San Francisco Javier prison in eastern El Salvador rioted. The four hour battle between rival gangs left 27 prisoners dead and thirty wounded, they were hacked, beaten or burned to death. Autopsy reports showed the victims had high levels of marijuana, tranquilizers and alcohol in their systems. The battle began over an effort between prison gangs to control the drug flow within the maximum security prison. The prison has an official capacity of 200 but actually holds 307 prisoners and is staffed by 27 prison employees who do little more than control the outer perimeter.
The other day a prisoner at a women's prison wrote and asked me how we, as revolutionaries, would handle crime problems differently than the existing government is now doing. The biggest difference would be both a social and an economic one, as the problem itself is both social and economic. First of all, there would be no unemployment, and things like jobs, education and decent health care would be human rights. By eliminating the existing gap between rich and poor, much of the social roots of crime would be eliminated (particularly for economic crimes, like robbery, burglary and so on). Even then we would, of course, still have ideology-based social offenses, such as sex crimes. It will be possible to reduce these when the means of education and information are in the hands of a party representing the interests of the working class. Then women won't be portrayed as little more than sex objects for male pleasure. Some of these changes will of course require a generation or two to alter the thinking and consciousness of a whole society. There is no shortcut or easy solution to this problem, yet it can be solved.
By Ed Mead
During my confinement at the Southern Ohio Correctional Facility (SOCF) in Lucasville the minister showed great partiality towards the Christians and baptists and open disdain towards Muslims and other faiths. The guards openly disrespected Muslims in particular and blacks in general. Combine this with a warden who ruled his way or no way at all and unrest was bound to occur. The guard's union has called for training in cultural and religious awareness, as well as the hiring of more guards. The state ...
It's been almost a year since the end of the siege at Lucasville. During this time investigations have been conducted by the State Legislature, State Highway Patrol and Scioto County Prosecutor's Office. The mass media has focused on "crimes" committed during the riot rather than on the problems which caused such drastic measures. Although there have been some articles on the overcrowding in Ohio prisons, which causes understaffing, increased tensions, lack of programs and jobs for prisoners, this is but one factor. The main issue which caused the drastic action was the religious suppression of the Muslims. Ohio lacks training in cultural and religious awareness for it's guards, as well as interpersonal relations
The court gave an extensive discussion of the law concerning municipal liability. While municipalities and their agencies are subject to section 1983 liability the conduct for which liability is sought to be imposed must have been taken pursuant to the municipality's "official policy." The court liberally construed the complaint to allege that Bellevue hospital and the city of New York have an "official policy" or practice of permitting unqualified doctors to perform surgery on prisoners. Thus, the complaint does state a claim against the city and if proved, would ...
Sean Simpkins was a pre-trial detainee in New York City. While in custody he was taken to the city owned hospital at Bellevue for sinus surgery. Instead of operating where indicated by a CAT scan the doctor operated on the wrong sinus resulting in Simpkins being unable to breathe properly and having continual infections and other complications. Simpkins filed suit claiming that the hospital, the city, and the New York City DOC were negligent for hiring an incompetent doctor to perform surgery on prisoners. The defendants filed a motion to dismiss the suit for failure to state a claim which the district court granted in part and denied in part.
Gregory Howard is a Michigan state prisoner. Howard was a prisoner at the state prison in Jackson when he requested placement into protective custody (PC) for protection from asserted enemies in the general prison population. He was transferred to a close custody prison for a psychiatric evaluation and placed in general population. A few weeks later he was transferred to a maximum security prison and placed in protective custody. At no time did Howard receive notice or a hearing concerning the transfers nor placement back into protective custody. The transfer to the maximum security prison was a mistake and he was transferred back to Jackson and again placed in protective custody without any type of hearing or notice. Shortly after his return to Jackson, Howard indicated a desire to return to general population and on December 21, 1986, the deputy warden at the prison concurred with the recommendation that Howard be released to general population. Despite bi-monthly status reports indicating this, Howard remained in PC during his entire stay at Jackson until March 3, 1988. Howard filed suit under § 1983 claiming that the repeated refusal by prison officials to release him from PC violated his due process rights. The district ...
At the same time, the DOC has notified cities and counties throughout Washington that it is seeking an appropriate location to build yet another prison. This is to be 1,936 bed minimum to maximum prison facility. The project is budgeted at $150 million in construction costs, will employ 800 staff and will cost an estimated $40 million a year to run in payroll, supplies and maintenance. So far only officials in Okanogan County ...
The Washington DOC received a budget increase of 30 percent last year. As part of the two percent budget cutback affecting all state agencies the DOC has offered plans which would require the closure of two small prisons and delay the opening of the large Airway Heights prison near Spokane. The November 20, 1993, Seattle Times article did not cite the prisons to be closed, but staff at the Washington State Reformatory have stated that the camp at Indian Ridge is one of the prisons being considered for closure. The plan does envision closing the honor farm at the Reformatory in Monroe with the 110 prisoners being transferred to other prisons and 35 staff positions being eliminated. The plan would also eliminate 40 work release slots.
On October 5, 1993, National Lawyers Guild (NLG) president Peter Erlinder and attorney Leonard Weinglass filed petitions with the Inter-American Commission on Human Rights on behalf of Abimael Guzman, the imprisoned chairman of the Communist Party of Peru (PCP) and several hundred PCP prisoners of war. The petition was originally filed in the human rights court by attorneys in Lima, Peru. Erlinder and Weinglass were requested to serve as co-counsel in the case.
The Lima attorneys filed three petitions which were later consolidated into one case. The issues being presented to the court are: 1) events occurring during and after the arrest of Dr. Guzman and other members of the PCP's central committee on September 12, 1992, where Dr. Guzman was publicly displayed in a cage in a striped suit. All the prisoners were denied the right to present a defense, they were tried by an anonymous, hooded tribunal of military judges with no civilian witnesses. The "trial's" verdict was announced by the president of Peru, Alberto Fujimori, before it even began. It also charges that arbitrary sentences of life without parole were imposed and the denial of health care, legal counsel, visitation and reading ...
By Paul Wright
The court of appeals for the third circuit vacated and remanded. The appeals court did not address the merits of Tabron's claim but instead focused on the issue of appointed counsel. The district court had denied the motion for appointment of counsel by ruling that such appointment could only be made "when exceptional circumstances exist." The federal district and appellate courts have authority under 28 U.S.C. § 1915 (d) to request that counsel represent an indigent plaintiff. This authority is discretionary.
Noting that this issue, appointment of counsel under § 1915(d) had not been adequately addressed by the third circuit before now, the court gave an extensive discussion of the case law from all circuits to consider this ...
Harvey Tabron is a Pennsylvania state prisoner. He sued prison officials claiming they had failed to protect him from attack by another prisoner. In the course of the litigation Tabron requested that the district court appoint counsel to represent him, order the defendants to provide him with free copies of deposition transcripts of witnesses in the case, and compel discovery. The lower court denied all of these motions and entered summary judgement in favor of prison officials, dismissing the case.
During her confirmation hearings Ruth Bader Ginsburg repeatedly described the role of the Supreme Court Justice as one of enforcing the rule of law. When she begins to work on the Court's cases, though, she may find that her colleagues have a different idea of the job. Justice Thurgood Marshall's papers at the Library of Congress show that most justices subscribe to William Brennan's reported comment to his law clerks that "the most important rule in constitutional law is that with five votes you can do anything." Every justice at one time or another--and some all of the time--adheres to what may be called the "rule of five." Their decisions result from this desire to get a majority of five votes, not from their detached interpretation of the constitution.
The contrary view--the "rule of law"--was expressed by Justice Lewis Powell in a comment he made on a draft opinion by Justice Marshall. In discussing the standards for determining what the constitution required in death penalty cases, Justice Marshall had written that the court should consult "international opinion" and "our own best judgement." Justice Powell urged Marshall to delete those references, saying, "This court ...
By Mark Tushnet
Kimberlin filed suit claiming that his repeated segregation by federal Bureau of Prisons (BOP) officials constituted retaliation for the exercise of his first amendment rights. The district court dismissed some of the claims but held that there was sufficient evidence requiring a trial to determine if prison officials had acted to silence Kimberlin which we reported in PLN at the time, see: Kimberlin v. Quinlan , 774 F.Supp 1 (DC 1991). The government filed an interlocutory appeal claiming that they were entitled to qualified immunity from suit and that Kimberlin should not even be permitted to present his case to a jury. The court ...
Brett Kimberlin is a federal prisoner serving a 51 year sentence on drug and weapons charges. He briefly gained a bit of notoriety during the 1988 presidential campaign when he claimed that he had supplied drugs to George Bush's vice-presidential running mate, Dan Quayle, in college. On at least three occasions Kimberlin was scheduled to have meetings with the media detailing the allegations and each time he was placed in segregation by prison officials which safely prevented him from contacting the media until well after the election. Dan Quayle is history but the litigation continues.
By Paul Wright
Welcome to another issue of PLN. You will notice that we are still experimenting with different formats. Our goal is to improve our appearance and at the same time make it more readable, just like the "real" magazines. Our last issue had four columns of text for the most part, while I kind of liked it most people who saw it said it looked too scrunched together. This issue we are trying three columns to see how it looks. We welcome feedback from you, our readers, as to what you like and what you would like to see. That goes both in terms of style and substance. We don't answer to advertisers, big money or corporate donors but just to you, our readers, so let us know what you want and we'll see what we can do.
Please check your mailing label to ensure the information is accurate. If any changes need to be made let us know as soon as possible, send the label back with any changes if you can.
In December prisoners here at WSR in Monroe, WA. began to receive our first computers for in cell use. This ...
From the Editor