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Prisoner Education Guide

Prison Legal News: April, 1994

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Volume 5, Number 4

In this issue:

  1. Court Rules on Control Unit Law Library Access (p 1)
  2. Ad Seg as Punishment Unlawful (p 2)
  3. Jail Detainees Have Right to Library Access (p 2)
  4. 5th Cir. Guts Legal Mail Standard (p 3)
  5. Wolff Hearing Required Before Detainees Punished (p 3)
  6. 9th Cir. Explains Review of Religious Claims (p 4)
  7. AZ Prisoners Have Right to Court Access (p 5)
  8. Okay to Disclose Informant's Identity (p 5)
  9. Excluding Alibi Witness Unconstitutional (p 5)
  10. Infestation Violates 8th Amendment (p 6)
  11. Detainees Have Right to be Vermin Free (p 6)
  12. BOP Liable for Recalculating Sentence (p 6)
  13. IL Prisoners Have No Right to a Valid Classification System (p 7)
  14. MO Ad Seg Practices Unlawful (p 7)
  15. Double Celling Pre-Trial Detainees Violates Due Process (p 7)
  16. Washington Litigation Update (p 8)
  17. LA Prisoners Boycott Phones (p 9)
  18. Court Cannot Dismiss Suit When Partial Filing Fee Paid (p 9)
  19. Prisoners Pursue Prison Industries Litigation Despite Continued Retaliation (p 10)
  20. Report on Indiana Control Unit Issued (p 10)
  21. Stop the Ohio Super-Max! (p 11)
  22. From The Editor (p 11)
  23. Informant Sues Over Disclosure (p 11)
  24. GA Parole Rules Create Liberty Interest (p 12)
  25. Ohio Targets Activists as "Gang Members" (p 12)
  26. Work Release Revocation Requires Hearing (p 13)
  27. Jail Sued Under ADA (p 13)
  28. No Right to Gate Money (p 13)
  29. Mexican Prisoners Speak Out (p 14)
  30. BOP Suits Require Administrative Exhaustion (p 14)
  31. Brazilian Guard Gets 516 Years (p 15)
  32. Legal News in Brief - NCIC Info Rule (p 15)
  33. British Govt Rolls Back Civil Rights (p 15)
  34. Legal News in Brief - 9th Cir. Amends LeMaire Opinion (p 15)

Court Rules on Control Unit Law Library Access

Abdul Akbar is a Delaware state prisoner confined in the Maximum Security Unit (MSU) of the Delaware Correctional Center (DCC). The MSU is a control unit for the long-term segregation of prisoners that prison officials allege to be a danger within the general population of the DCC. The MSU is ...

Ad Seg as Punishment Unlawful

Ad Seg As Punishment Unlawful

Greg Stevens is an HIV+ Arkansas state prisoner, he is also missing a finger. Due to his medical condition he received a medical limitations slip which prohibited him from working in the prison fields. He reported to work in the fields and showed the slip ...

Jail Detainees Have Right to Library Access

This case involves a consolidated appeal of one suit by three Wisconsin county jail detainees and one by an Indiana jail detainee. All of the plaintiffs claimed their right of access to the courts was violated because the jails they were held in had no law library, they had no access to persons trained in the law to assist them and they were denied materials such as pens and carbon paper with which to prepare their litigation. Both district courts dismissed the cases. The court of appeals for the seventh circuit reversed and remanded both cases.

The Wisconsin jail defendants asserted a defense of qualified immunity and maintained they were not liable for money damages because pre-trail detainees did not have a clearly established right of access to the courts. The appeals court gave an overview of it's rulings that extended the right of access to the courts to pretrial detainees in 1981 while not specifically deciding how closely jail officials must match prison officials in providing legal assistance to prisoners. The court noted that the provision of criminal defense counsel unable or unwilling to assist detainees or jail prisoners with habeas corpus petitions or civil rights complaints is ...

5th Cir. Guts Legal Mail Standard

Van Lee Brewer and Claude Harris are Texas state prisoners. They filed suit under § 1983 claiming that prison officials had opened and read their incoming legal mail from the courts, attorneys and government officials outside their presence. They also claimed their outgoing mail to the courts was opened and legal pleadings were removed by prison officials, that legal mail was wrongfully withheld past 72 hours, incoming and outgoing general mail was never received by the addressee and numerical limits were placed on the plaintiff's outgoing mail. The district court granted prison officials summary judgement and dismissed the suit. The court of appeals for the fifth circuit affirmed in part, reversed in part and remanded.

This case will be of extreme interest to Texas prisoners because this decision invalidated several long-standing fifth circuit cases dealing with prisoner's right to uncensored legal mail. This case is a giant step backwards for prisoner rights in the fifth circuit.

The appeals court upheld the dismissal of the plaintiff's claims concerning the opening of their incoming legal mail outside of their presence. The claim was analyzed as both a free speech and access to the courts claim. The court gave a lengthy ...

Wolff Hearing Required Before Detainees Punished

Ernest Walker is a pretrial detainee at the Navarro County Jail in Corsicana, Texas. Walker asked a jail guard to open his cell door so he could get some chips to eat. The guard refused and claimed Walker called him an obscene name. The guard placed Walker in segregation. The next day Walker attended a disciplinary hearing which resulted in a sanction of five days in solitary confinement. Walker filed suit claiming that this violated his right to due process of law, he also claimed his legal mail was opened and read outside his presence. The district court dismissed the entire suit as being frivolous under 28 U.S.C. § 1915(d), the in forma pauperis statute. The court of appeals for the fifth circuit affirmed in part, vacated and remanded in part.

In considering the segregation claim the court notes that, while not clear, the Supreme Court's Wolff v. McDonnell , 418 US 539, 94 S.Ct. 2963 (1974) ruling may apply to pretrial detainees as well as convicted prisoners. Wolff sets forth the minimal due process requirements for prison disciplinary hearings which include advance written notice of the charges at least 24 hours before the hearing, a written ...

9th Cir. Explains Review of Religious Claims

Jason Ward is the only Orthodox Jewish prisoner at the Ely State Prison in Nevada. He filed suit under § 1983 claiming that prison officials had violated his right to free exercise of his religion by not providing him with a kosher diet; an orthodox Rabbi; clothes made of a single piece of fabric; not allowing him to have candles in his cell nor a guarantee that he would not be transported on the Jewish Sabbath. The district court ruled in favor of prison officials on all issues after a bench trial.

The court of appeals for the ninth circuit affirmed in part, reversed in part and remanded. The court gave an extensive explanation of the legal standard applied to prisoner's free exercise of religion claims. Anyone litigating this issue in the ninth circuit should familiarize themselves with this opinion.

The court rejected prison officials' argument that all free exercise claims were governed by Employment Division, Department of Human Resources v. Smith , 494 US 872, 110 S.Ct. 1595 (1990). The appeals court noted "The Supreme Court has held that Turner applies to all constitutional claims arising in prison with the exception of eighth amendment claims."

The court then went ...

AZ Prisoners Have Right to Court Access

Antonio Bustamonte is an Arizona state prisoner held at the Winslow prison. In April of 1992 a riot broke out at the prison resulting in Bustamonte's housing unit being locked down. One of the consequences of the lockdown, in which prisoner's were not allowed to leave their cells, was that it denied the convicts access to the prison law library.

Prison officials set up a substitute system through which prisoners could order legal materials from the law library and receive visits from prisoner legal assistants. Bustamonte filed a writ of habeas corpus in Arizona state court alleging that this system was so inadequate that it denied him meaningful access to the courts. The relief he requested was that he either be provided with law library access or be released from prison. The trial court dismissed the petition holding that a writ of habeas corpus was an improper remedy for a lack of law library access.

The Arizona court of appeals affirmed only because the lockdown had ended, thus mooting the controversy. The appeals court ruled on this issue because it was one of statewide importance which could recur yet evade review.

The appeals court agreed that a writ ...

Okay to Disclose Informant's Identity

David Sterling is a federal prisoner. He is also an informant. During the course of disciplinary proceedings against his cellmate, Lawrence Pekoske, Sterling provided information to Bureau of Prisons (BOP) officials under a promise of confidentiality.

Pekoske filed a request to examine his prison records with the BOP under the Freedom of Information Act. The BOP disclosed Sterling's statement after redacting his name from it. Sterling filed suit under 5 U.S.C. § 552a, the Privacy Act (PA), and 28 U.S.C. § 2671, the Federal Tort Claims Act (FTCA) claiming that as a direct result of the disclosure he has faced death threats from other prisoners and emotional distress.

The district court ordered the suit dismissed because Sterling had come forward with no evidence that the BOP had willfully or intentionally disclosed the information that identified him as an informant. The court notes that negligence or handling "...a matter in a disjointed or confused manner" is not sufficient to withstand a motion for summary judgement. There was no evidence to indicate that the BOP had acted in "flagrant disregard" for Sterling's rights as an informant. See: Sterling v. United States , 826 F. Supp 570 (DC DC 1993).

Excluding Alibi Witness Unconstitutional

Kelvin Moye is a New York state prisoner. He was infracted for stabbing another prisoner. At his disciplinary hearing Moye requested a statement from a prisoner whose testimony would indicate that Moye could not have committed the stabbing. The hearing officer refused to obtain a statement from the witness and found Moye guilty based on the statements of confidential informants. Moye was sentenced to one year in segregation and his administrative appeals were denied.

Moye filed an Article 78 petition in New York state court challenging the denial of his alibi witness at the disciplinary hearing. The state court agreed that his rights had been violated and vacated the ruling. Moye had spent 323 days in segregation by the time the state court issued it's ruling. He then filed suit in federal court under § 1983 seeking money damages for violation of his due process rights. The district court granted partial summary judgement to both parties.

The court gave an extensive discussion of the right to call witnesses at prison disciplinary hearings. Because prison officials could not give a rational basis for excluding Moye's alibi witness the court held that the denial violated Moye's right to due process ...

Infestation Violates 8th Amendment

Several pretrial detainees in the Cook County jail in Chicago filed suit over rodent infestation at the jail. Several of the plaintiffs claimed they had been bitten by rats, one was attacked by a swarm of mice. Administrative grievances and complaints to jail officials failed to resolve the problem. The detainees filed suit under § 1983 claiming that the rodent infestation violated their eighth amendment rights.

In ruling on the defendants motion to dismiss, the district court held "imprisoning plaintiffs in dungeon like conditions in which rodents crawl all over and attack them is barbarous to the standards of our contemporary society." The court ruled that rodent infestation which allows detainees or prisoners to be bitten by rats meets both the subjective and objective component needed to prove an eighth amendment violation under Wilson v. Seiter , 111 S.Ct. 2321 (1991). See: Walton v. Fairman , 836 F. Supp 511 (ND IL 1993).

Detainees Have Right to be Vermin Free

Two federal pretrial detainees housed under contract in the Allegheny County Jail (ACJ) in Pennsylvania sued jail officials for a wide variety of ailments affecting jail prisoners. Among the issues they filed suit on were: inadequate ventilation, extreme temperatures, excessive noise, use of chemicals and machines in the jail that gave off toxic fumes, unsanitary food preparation and inadequate medical care, among others. The district court dismissed the complaint on the defendants' combined motion for summary judgement and dismissal for failing to state a claim upon which relief could be granted.

The court of appeals for the third circuit affirmed in part, reversed part and remanded the case back to the district court. The appeals court covered numerous procedural issues before addressing the substantive issues of the detainees complaint. Readers should note that while the plaintiffs were federal detainees' they filed suit under 42 U.S.C. § 1983 rather than as a Bivens action because the defendants were state and county officials.

The appeals court held that some of the issues raised were time barred, ruling that the statute of limitations for § 1983 actions that arise in Pennsylvania is two years under 42 PA.Con.Stat.Ann. § 5524.

One of ...

BOP Liable for Recalculating Sentence

Kent Alexander is a former federal prisoner. In 1986 he was released after serving a three year federal sentence. Eighty days later he was arrested for "violation of parole" and placed in FCI Tucson. The prison administrative systems manager, Luis Rivera, told Alexander that the BOP had recalculated his previously completed sentence and extended it by 245 days claiming that the time he had spent in a German jail awaiting extradition to the US did not count against his sentence as they had previously determined.

Several times after his reincarceration Alexander requested that Rivera and William Perrill, the warden, investigate the matter. Alexander provided them with certified court documents entitling him to the jail credits and German court orders denying him release on bail due to the US extradition request. The recalculation of Alexander's sentence had been made by the Bureau of Prison's (BOP) central office in Washington D.C. Rivera and Perrill made no inquiries, conducted no investigation, did not forward the documents to the BOP central office and made no effort to determine if the BOP was aware of all the facts submitted by Alexander.

After administrative remedies proved unsuccessful, Alexander filed, and was granted, a ...

IL Prisoners Have No Right to a Valid Classification System

State prosecutors' use of extreme language and personal opinion in letters that they are required to submit to the department of corrections for use in making initial prison security classifications of newly committed prisoners does not violate the constitution or the statute itself, the Illinois Appellate Court, First District, held on November 16, 1993.

The prisoner plaintiffs sought a writ of mandamus to compel the prosecutors to submit only objectively accurate statements. Relying on cases interpreting prior versions of the statute, Illinois Corrections Code Section 5-4-1(d), the court ruled that the broad statutory language invited the prosecutors' opinions concerning prisoner's habits and characters and thus was not violated by the prosecutors references to prisoners as "savages" or their untrained opinions on particular prisoners' prospects for rehabilitation.

Nor do prisoners have a substantive due process right to a valid prison security classification system, the court also said as it affirmed the dismissal of the prisoner's related 42 U.S.C. § 1983 civil rights suit. The court did, however, suggest that although there are no due process or statutory constraints on how the state's attorneys are to compose their statements, there is nothing to be gained by exaggeration ...

MO Ad Seg Practices Unlawful

Several prisoners at the Missouri State Penitentiary (MSP) filed suit after they were held in administrative segregation (ad seg) for periods ranging between nine and thirty days without a hearing or an opportunity to challenge the information upon which the ad seg was allegedly based. The "hearing" the prisoners received consisted of the prison investigator or the segregation unit manager walking by the prisoner's cell and verbally informing them they were held in ad seg pending an investigation. The prisoners filed suit under §1983 holding that these practices violated their right to due process of law. The district court agreed and granted partial summary judgement in favor of the prisoners and denied prison officials' motion for summary judgement. The events giving rise to the suit occurred in 1988.

The court of appeals for the eighth circuit affirmed in part, reversed in part and remanded. The court noted that in 1989, after the events at issue in this suit, it held that Missouri prisoners have a right to an informal hearing within a reasonable time after being put in ad seg. Missouri statute 217.315 also creates a due process liberty interest for Missouri prisoners to remain out of ad ...

Double Celling Pre-Trial Detainees Violates Due Process

Several animal rights protestors arrested while demonstrating against an annual pigeon shoot filed suit against Schuykill County Prison in Pennsylvania, and it's officials, alleging that the conditions of confinement during their stay at the prison violated their constitutional rights. The conditions complained of in the suit include: double celling of pre-trial detainees, blanket strip and body cavity searches of all arrestees and restricted telephone access during the first 48 hours of captivity. In several cases the plaintiffs spent up to two weeks sleeping on a mattress on the floor in a double cell or a common area. Prisoners were not allowed telephone access for the first 48 hours of confinement except for attorney, bail and family notification. All detainees were subjected to a visual body cavity and strip search under a blanket policy that made no distinctions for offenses, prior record or individual suspicion of having contraband.

The district court held that the sleeping arrangements in the prison, with all prisoners double celled or sleeping on the floors, violated their constitutional rights. Noting there is nothing unconstitutional per se about double celling, the court notes that forcing pretrial detainee to sleep on the floor imposes punishment which is forbidden ...

Washington Litigation Update

Access to the Courts: Prisoners at WCC, TRCC, MICC and WSP have filed suit concerning DOC policies, rules and practices which restrict their right of access to the courts. Scott v. Peterson , Case No. C92-5232B, filed in US District Court in Tacoma, is a consolidation of six individual cases initially filed by Pro Se prisoners. The court appointed Michael Gendler, a Seattle attorney, to represent the prisoners.

The suit contends that the Washington DOC has persisted in "continuing to dishonor all aspect's of prisoners' fundamental right of access to the courts." The complaint alleges that the law library hours at WCC, of 2.5 and 4 hours per day for day programmers is insufficient to allow for research. Prison officials there no longer allow prisoners to photocopy legal materials or to check books out of the law library. The WCC law library is not current nor kept complete. Washington DOC law libraries also have no facilities for audio or videotape viewing even though many superior court trials are now recorded on video which must be viewed by prisoners seeking to file pro se supplemental appeals.

The suit contends that Washington prisoners are denied the ability to make legal photocopies ...

LA Prisoners Boycott Phones

By Paul Wright

In June of 1993 Global Tel-Link won a 3 year contract with the Louisiana Department of Public Safety and Corrections to install about 875 phones and handle all collect calls placed from the state's 16 adult and juvenile facilities. The company, which mentioned the "profitability of prisons" in its bid document, agreed to pay the state at least $5 million annually in commissions. Global's revenues come from the persons who accept the collect calls placed by the prisoners.

Since taking over the phone services Global has massively increased the rate it charges for the calls. For example, a 15 minute call from the prison at Angola to New Orleans increased from $3.60 to $6.90. This increase led to a mass number of complaints being filed by prisoners, their families, advocates and attorneys with prison officials and the Louisiana Public Service Commission (PSC). They also complained that the quality of service has declined with callers unable to hear each other.

Noting that, in violation of it's contract, Global was charging higher rates than other local carriers such as ATT, Corrections Undersecretary James LeBlanc ordered Global to reduce it's rates and reimburse customers ...

Court Cannot Dismiss Suit When Partial Filing Fee Paid

Robert Butler is a Nevada state prisoner. He filed suit under § 1983 alleging his defense attorney and trial judge at his state court trial had conspired together in order to deny him a fair trial.

The district court granted Butler permission to proceed in forma pauperis but required him to pay a partial filing fee. The district court then dismissed the action, before service of process on the defendants, as being legally frivolous under 28 U.S.C. § 1915(d).The court of appeals for the ninth circuit reversed and remanded.

The appeals court held that once a plaintiff has paid a portion of the filing fee a district court cannot dismiss an action as frivolous before service of process. Every court to consider this issue, the 6th, 7th and 8th circuits, have ruled likewise on this issue.

The court expressed no opinion on the merits of Butler's claim but noted that the claim against the judge will have to be dismissed at some point because judges have absolute immunity in lawsuits for money damages. However, the entire action should not have been dismissed with prejudice before service of process. See: Butler v. Leen , 4 F.3d 772 (9th ...

Prisoners Pursue Prison Industries Litigation Despite Continued Retaliation

By Ken Krause

Several prisoners at the Ely State Prison in Ely, Nevada are continuing to litigate despite repeated retaliation by Ely State Prison officials. Kenneth Krause, Edward Wills and David Bean began a federal RICO suit in 1991 alleging that the prison drapery factory was not paying minimum wage in violation of their employment contracts and federal law.

The original action was dismissed in the Nevada federal district court. A follow up Qui Tam action based upon the same facts was effectively "frozen" in the U.S. District court for the Central District of California, supposedly because the three had not provided the U.S. government with a copy of the exhibits. The court then sealed the file.

The latest action alleges that prison officials submitted false reports to the federal government claiming that they were paying the prisoners the minimum wage, but Krause, Wills and Bean conducted their own investigation and found that the prisoners were not being paid anywhere near the minimum wage at the time the certification reports were made.

Apparently during the litigation of these cases the three of them must have touched a nerve somewhere because in September of 1991 they were written up ...

Report on Indiana Control Unit Issued

The Coalition Against Indiana Control Units (CAICU) has issued it's report Human Rights Violations and Torture on the Rise at the Maximum Control Complex at Westville, IN: Profile of a Supermax . The report details and documents the conditions of confinement suffered by prisoners at the MCC in Westville. This is must reading for those involved in the struggle against control unit proliferation. It paints a grim and horrifying picture of prisoners shut in stark white steel cells for 165 out of 168 hours a week, not permitted visits their first 90 days in MCC after which they could receive one visit a month; mail is censored, daily newspapers have to be turned in within 24 hours to be destroyed, no library is available, cell temperatures average between 40 and 50 degrees F with no hot water for showers and prisoner's thermal underwear being "lost" <%-2>by officials. <%-3>Since it's opening MCC prisoners have suffered ailments <%-4>such as digestive problems, rashes and skin problems.<%0>

<%-3>The prisoners, most of whom are black and politically active, have constantly struggled against these conditions<%-2>. <%0>This includes hunger strikes, <%-1>litigation and such. Amnesty International has written letters of inquiry to the Indiana DOC con ...

Stop the Ohio Super-Max!

Ohio presently imprisons some 41,000 prisoners in 23 different penitentiaries designed to hold 21,738. It plans to build six more prisons, including a super-maximum, or Super Max, prison which will confine only 500 prisoners and cost taxpayers $15 million to build. Super max prisons, such as the U.S. Penitentiary at Marion, IL, or the Pelican Bay State Prison in Crescent City, CA, or even the Super Max Unit at the Southern Ohio Correctional Facility in Lucasville, OH, increase and concentrate the violence. Long term isolation increases prisoners' psychosis and anger levels so that they react violently when released.

Super max prisons are supposed to imprison the "worst of the worst". Yet according to the Prison Discipline Study, a report done by the Prisoner's Rights Union in California, the groups of prisoners most frequently abused by solitary confinement are jailhouse lawyers, union organizers, activists, those verbally expressing their opinions and even those reporting conditions of confinement to people outside prison.

Super max prisons give guards and administrative staff a green light in conducting and/or condoning the use of violence against prisoners. This includes "cell extractions" where prisoners are attacked with chemical agents, beaten and restrained for ...

From The Editor

From the Editor

By Paul Wright

Welcome to another issue of PLN . First, please accept my apologies for the late arrival of the March issue. In the past we have mailed PLN from Seattle on the last Tuesday of the month. We have now switched our printing and mailing operation to the New York City area and there was some delay in straightening out the necessary postal permits. We are now back on schedule and should remain this way for the foreseeable future.

Readers may have noticed that our last issue did not have an editorial by Ed. The parole board's ban on communication between Ed and myself has proved unworkable. For the foreseeable future, Ed has discontinued his involvement with PLN . The ACLU of Washington has agreed to file suit challenging the parole board's action. This will be the subject of an article in an upcoming issue of PLN . In practical terms nothing will change as far as PLN goes, we will continue to appear monthly and strive to be a progressive voice for prisoners and their supporters as well as an outstanding source of legal and political information.

The March issue was printed on bond paper ...

Informant Sues Over Disclosure

Steve Rutledge is an informant in the Illinois state prison system. While housed at the Joliet prison he informed on members of the North Side gang who were planning an escape attempt. As a result, the would-be escapees were segregated, infracted and punished. Prison officials promised Rutledge fabricated infractions to make it appear as if he too had been punished.

According to Rutledge, it was prison officials who had revealed his informant activities to other prisoners. As a result he was twice scalded, threatened, attacked and placed in protective custody.

The district court noted that the defendants did not deny revealing Rutledge's status as an informant to other prisoners. Because prison officials are responsible for prisoners safety, even that of their informants, such an allegation would violate the eighth amendment's ban on deliberate indifference to prisoners' safety. Whether such was actually the case would be determined by a jury at trial. See: Rutledge v. Springborn , 836 F. Supp 531 (ND IL 1993).

GA Parole Rules Create Liberty Interest

Stephen Sultenfuss is a Georgia state prisoner serving sentences for two drug convictions. Under the rules of the Georgia Board of Pardons and Parole (GBPP) he should have served 10 months in prison. Disregarding their own rules the GBPP imposed a period of 62 months of incarceration before parole.

Sultenfuss filed suit under § 1983 with several other Georgia prisoners alleging that the GBPP's actions, not following their own rules, violated the plaintiff's rights to due process and equal protection of the law. The district court dismissed the suit as being frivolous under 28 U.S.C. § 1915(d). The court of appeals for the eleventh circuit reversed and remanded.

The appeals court gave an extensive discussion of state created liberty interests and cites extensive case law where state parole rules have been found to create a due process liberty interest. This is in the context that prisoners have no fundamental right to parole and parole boards have wide discretion, unless channelled by statute, to grant or deny parole.

The court gave an extensive explanation of the Georgia parole system and the rules used to calculate a prisoner's actual term of confinement. Based upon this analysis the court ...

Ohio Targets Activists as "Gang Members"

Ohio Targets Activists As "Gang Members"

By John Perotti

The Department of Rehabilitation and Corrections (DORC) instituted a regulation prohibiting "gang related activity." This was implemented to fall in line with their overall intention to follow in the footsteps of California, Texas, Illinois and other states which have built "Super Max" prisons and focused on alleged "gangs" and "gang leaders" in prison. Ohio has gone so far as to manufacture gang members.

The DORC's latest tactic has been to target political activists and jailhouse lawyers for "gang related" charges when prisoners engage in lobbying the legislature. Danny Cahill, a political and prison activist working toward prison reform by lawful means such as lobbying the state legislature was charged with the infraction of "gang related activity" for advocating an Ohio Prisoner's Rights Union and receiving ACA (American Corrections Association) material from CURE (Citizens United for the Rehabilitation of Errants). Cahill was placed in Local Control, six months of solitary confinement, for this at the Madison Correctional Facility. He began a hungerstrike in protest and after 38 days was transferred to Lebanon Correctional Institution.

We have drafted a citizens lobby letter protesting the implementation of a Supermax prison in Ohio ...

Work Release Revocation Requires Hearing

Billy Jackson was an Arkansas state prisoner. She was placed in work release but later quit her job and her parole officer could not locate her at her address of record. She was later arrested on charges of public drunkenness, returned to prison and given a prison disciplinary hearing whereupon she was found guilty of the above charges and her work release and minimum custody status were revoked.

Jackson filed suit claiming that she was entitled to the process due a parolee at a parole revocation hearing: written notice of the alleged violations; disclosure of the evidence against her; an opportunity to be heard, present witnesses and evidence on her behalf; the right to confront witnesses; a neutral and detached hearing panel and a written statement by the finders of fact. See: Morrissey v. Brewer , 408 US 471, 92 S.Ct. 2593 (1972). Prison officials maintained she was entitled to only a prison disciplinary hearing with the most rudimentary elements of due process under Wolff v. McDonnell , 418 US 539, 94 S.Ct. 2963 (1974). The district court denied the defendants' motion for summary judgement and they appealed claiming they were entitled to qualified immunity.

The court of appeals for ...

Jail Sued Under ADA

In 1990 Congress passed the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12134, which prohibits discrimination against the disabled by public services. Readers will note that this law applies to prisons and jails who can be sued for failing to provide disabled prisoners with reasonable accommodation to the benefits of services, programs or activities available to other prisoners. As a new and developing area of prison law PLN will report developments as they occur.

Larry Noland is a semi-quadriplegic who cannot use his legs, one arm and has no bladder. He requires several daily medications as well as care to prevent body sores. While in the Wabash County, Indiana, jail he was placed in a padded cell with no bed, furniture or running water, poor ventilation and temperature control with only an open drain for the disposal of bodily waste. Constantly viewed by surveillance cameras, Noland had no privacy even while attempting to bathe. Due to his medical condition he requires large amounts of water to ensure his kidneys function, yet even after jail doctors prescribed 64 ounces of water per shift Noland was given less than eight ounces of water a day. The sheriff and jail guards ...

No Right to Gate Money

Several New York state prisoners filed suit under § 1983 over a plan enacted by the New York state legislature which revoked the $40 gate money previously given to prisoners upon their release by the state. They also challenged a plan under which prison officials would seize 12.5% of all money earned or received by a New York prisoner in the last year of his/her confinement until $40 had been saved, this would then be used as gate money and given to the prisoner upon their release. The district court ruled against the plaintiffs and dismissed the suit.

The court begins by noting there is no constitutional right to receive gate money upon release from prison. In this case the New York state legislature had specifically repealed the statute which authorized gate money. The legislature's actions in this case are constitutional and violate no federal right.

Likewise, the court upheld the practice of withholding 12.5% of prisoner's income until such time as the $40 limit was reached. The court ruled the injury was de minimis for legal purposes and narrowly tailored to achieve a specific penological goal authorized by the legislature. See: Webster v. Chevalier , 834 ...

Mexican Prisoners Speak Out

[PLN is committed to keeping it's readers informed of those who are in prison as a result of the struggle for social and economic justice. By now everyone has heard about the rebellion which rocked Mexico when, on Jnauary 1, 1994, guerrillas of the Zapatista National Liberation Army took and held several towns and cities in the state of Chiapas in Mexico. We recently received the declaration below from Mexican political prisoners. We have editied it for the sake of brevity. Anyone interested in a copy of the complete document please send a SASE to the editor. The translation was made by PLN editor Paul Wright.]

After Three Years of a New Period of Political Prison!

To the Revolutionary and Democratic Organizations and Parties of Mexico and the World:

In our country an armed revolutionary movement with deep historical roots exists. It originates in the prevalent economic, social and political conditions. In this context, the Partido Revolucionario Obrero Clandestino del Pueblo (PROCUP or Clandestine Revolutionary Workers Party of the People) proposes the radical transformation of society by means of a strategy of Prolonged People's War which contemplates the armed struggle as the fundamental path of the revolution. And ...

BOP Suits Require Administrative Exhaustion

John Rourke is a federal prisoner. He filed suit seeking injunctive relief alleging that prison officials had denied him medical care and arbitrarily imposed disciplinary sanctions against him. The district court dismissed the suit without prejudice as frivolous, before service on the defendants, holding that Rourke was required to exhaust his administrative remedies with the BOP, i.e. the BOP grievance procedure set forth in 28 C.F.R. § 542.

The court of appeals for the fifth circuit affirmed. In this case Rourke had filed suit under 28 U.S.C. § 2241, the habeas corpus statute, which does not allow money damages, only injunctive relief. While federal prisoners need not exhaust their administrative remedies when they seek only money damages under Bivens suits, they must when seeking injunctive relief. See: McCarthy v. Madigan , 112 S.Ct. 1081 (1992).

Because Rourke had not exhausted his administrative remedies his suit was "frivolous" because the court would have been required to dismiss it later on this issue. The appellate court notes that the dismissal was without prejudice which allows Rourke to refile his suit if the administrative appeals are resolved against him, thus his access to the courts is not foreclosed. The court ...

Brazilian Guard Gets 516 Years

On October 23, 1993, Celso Jose De Cruz, a military police investigator, was sentenced by a Brazilian judge to a record 516 years in prison for the murder of 18 prisoners. A jury had found Cruz, 46, guilty of all 18 counts of murder.

The jury found that in February, 1988, after an escape attempt, Cruz had locked up 50 jail prisoners in a cell that measured one and a half meters by three meters. The only ventilation opening in the cell was closed. When other guards opened the cell 2 hours later, nine prisoners were already dead of suffocation and another nine died en route to the hospital.

This was the first time in Brazilian history that a jail or police official has been convicted of killing a prisoner. The prosecutor said: "This conviction is important because it sets a precedent against the impunity enjoyed by the police in this country." Brazilian police have carried out at least three mass killings of prisoners since October of 1992.

Legal News in Brief - NCIC Info Rule

The Bureau of Prisons, Department of Justice, has issued a final rule amending it's rule on production or disclosure of FBI/National Crime Information Center (NCIC) information to conform to NCIC's requirement that any request by a prisoner for his or her NCIC Interstate Identification Index be made directly to the FBI. 58 FR 68765 (No. 248).

9th Cir. Amends LeMaire opinion : The Court of Appeals for the ninth circuit recently amended an opinion concerning the constitutionality of conditions in the Oregon State Penitentiary's (OSP) Disciplinary Segregation Unit (DSU). PLN reported the decision in Vol. 5, No. 1 (January, 1994). The court adhered to it's decision in LeMaire v. Maas , 2 F.3d 851 (9th Cir. 1993), which was to set aside, by a 2-1 vote, several parts of an injunction issued by the lower court. What is new in the opinion amended on December 23, 1993, is an addition to the majority's explanation for holding that the eighth amendment standard applicable to the prison officials' conduct in this case is the one that defines "wantonly" as "maliciously and sadistically for the very purpose of causing harm." The U.S. Supreme Court applied that standard ...

British Govt Rolls Back Civil Rights

As part of the political and economic crisis racking all the capitalist countries the British government has recently passed it's version of a crime bill. Home Secretary Michael Howard says the bill is the most comprehensive attack on "crime" in three decades. This follows over a decade of war by the ruling class on the British poor and working class.

The core of the new bill will allow children as young as ten to be imprisoned for a variety of crimes such as robbery, rape, manslaughter and murder.

One of the other main proposals will drop a suspects right to remain silent. Currently, a suspect is told by police that he has the right to remain silent but that anything he says may be used as evidence against him. Under the proposed change a suspect will be told that failure to reveal relevant information to the police may damage his case.

Some civil libertarians have condemned this crime bill. However, it is hardly new. For years now suspects accused of political offenses have had no right to silence. While being tried in front of special one judge courts the judge is entitled to weigh a suspects' silence against them ...

Legal News in Brief - 9th Cir. Amends LeMaire Opinion

The Court of Appeals for the ninth circuit recently amended an opinion concerning the constitutionality of conditions in the Oregon State Penitentiary's (OSP) Disciplinary Segregation Unit (DSU). PLN reported the decision in Vol. 5, No. 1 (January, 1994). The court adhered to it's decision in LeMaire v. Maas, 2 F.3d 851 (9th Cir. 1993), which was to set aside, by a 2-1 vote, several parts of an injunction issued by the lower court. What is new in the opinion amended on December 23, 1993, is an addition to the majority's explanation for holding that the eighth amendment standard applicable to the prison officials' conduct in this case is the one that defines "wantonly" as "maliciously and sadistically for the very purpose of causing harm." The U.S. Supreme Court applied that standard in Hudson v. McMillian, 112 S.Ct. 995 (1992), the majority pointed out, even though no riot or major disturbance was involved. The majority also cited cases from other federal courts of appeals, e.g., Jasper v. Thalacker, 999 F.2d 358 (8th Cir. 1993), in which the heightened standard was employed in situations involving prison officials' responses to violent or unruly behavior by ...

 

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