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Prisoner Education Guide

Prison Legal News: July, 1994

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Issue PDF
Volume 5, Number 7

In this issue:

  1. Supreme Court Defines "Deliberate Indifference" in Prison Rape Case (p 1)
  2. Lockdown May Be Unconstitutional (p 3)
  3. Media Hype Exposed (p 3)
  4. NM Visitors May Refuse Searches (p 3)
  5. 2nd Cir. Declines to Rule on Informant Testimony (p 4)
  6. Prisoners Retain Right Against Self-Incrimination (p 4)
  7. Prison Industries Supervisor Liable for Attack (p 5)
  8. Prisoners Denied Right to Vote (p 5)
  9. WA Prisoners Must Exhaust State Remedies (p 5)
  10. WA S.Ct. Upholds Sex Offender Registration (p 6)
  11. Cross Gender Strip Searches Illegal (p 6)
  12. English Only Rule for Prayer Illegal (p 7)
  13. CO Ad Seg Rules Don't Create Liberty Interest (p 7)
  14. Non-English Mail Okay (p 8)
  15. Filthy Cell Standards Clarified (p 8)
  16. Change in Parole Hearings Violates Ex Post Facto (p 9)
  17. Delay in Treatment States Claim (p 9)
  18. No Right to Self-Defense in Prison (p 10)
  19. Shackling States Claim (p 10)
  20. Prisoners Have Right to Jury from Community (p 11)
  21. Court is Ultimate Arbiter of Consent Decree (p 11)
  22. Urinalysis is Search (p 11)
  23. Administrative Exhaustion May Be Required (p 11)
  24. RFRA Supersedes O'Lone (p 12)
  25. RFRA Has Retroactive Application (p 12)
  26. Court Upholds Denial of Prisoner Witness Fees (p 12)
  27. Transport of Prison Made Goods Illegal (p 13)
  28. Photos Unlawful (p 13)
  29. FL DOC to Deport Aliens (p 13)
  30. Suit Filed Against "Shoot to Wound" Policy (p 14)
  31. Texas Prison Reform Suit May Reopen (p 14)
  32. The ACLU Takes Indiana Prison Officials to Court (p 15)
  33. From The Editor (p 16)
  34. PLN Suit Filed Against ISRB (p 17)
  35. Drug Use Legalized in Columbia (p 17)
  36. Prisoner Dies at Purdy (p 18)
  37. News in Brief (p 18)
  38. Prison Psychologist Opens Brothel (p 19)
  39. HIV+ Cellmate Doesn't State Claim (p 19)
  40. Prison Overcrowding Crisis Continues, Says ACLU Report (p 19)
  41. OH Double Standard (p 19)

Supreme Court Defines "Deliberate Indifference" in Prison Rape Case

The US Supreme Court heard only one prison related case in its 1994 term, and it resulted in a win for the prisoner. In Farmer v. Brennan the court was asked to answer what constitutes "deliberate indifference" to a prisoner's safety. The case involves Dee Farmer, a transsexual federal prisoner. Before being incarcerated, at age 18 in 1986, Farmer took female hormones, received breast implants and underwent an unsuccessful testicle removal surgery. Farmer is feminine in appearance.

In 1989 Farmer was subjected to a disciplinary transfer from the Federal Correctional Institution (FCI) in Oxford, WI to the United States Penitentiary (USP) at Terre Haute, Indiana. The latter is a maximum security prison. Within two weeks of being placed in the USP's general population Farmer was beaten and raped at knife-point by her cellmate. Several days after reporting the incidents Farmer was placed in segregation. Farmer is also HIV positive. At no time before the rape did Farmer request protective custody from prison officials or voice any concerns about her safety.

Farmer filed suit against Bureau of Prisons (BOP) officials at Oxford and Terre Haute. Farmer claimed that the BOP officials either transferred her to the USP or placed ...

Lockdown May Be Unconstitutional

Danny Eason is a Texas state prisoner. After two disturbances, in which he was not involved, the prison he was housed in was locked down for a total of 25 days. He claimed that during this period he was denied access to the prison law library and was only served pork in violation of his Muslim religious beliefs. The district court dismissed the suit as being "frivolous" under 28 U.S.C. § 1915(d), the In Forma Pauperis statute. The court of appeals, in a brief ruling, vacated and remanded for further proceedings.

"Even though a lockdown rarely will require more than informal review, some process arguably was due Eason and, given the limited information before us, we cannot determine whether it was provided."

While denial of law library access can be justified for a short time, especially in the wake of a prison riot, a prisoner pursuing a legal action who requires law library access and has all access denied may state a cognizable claim. Likewise, "prison officials have a constitutional obligation to provide reasonably adequate food and, absent some legitimate penological interest preventing the accommodation of a prisoner's religious restrictions, food which is anathema to an inmate ...

Media Hype Exposed

Anyone who watches TV or reads corporate media publications is well aware of the unrelenting propaganda barrage of hysterical stories attacking prisoners, criminal suspects, etc., as part of a "crime wave." With the collapse of the former USSR the ruling elite has been in desperate search of villains and enemies to distract US citizens from meaningful issues like poverty, unemployment, lack of health care, etc. Enter the Crime Wave. Anyone watching TV would think the US is in the midst of a massive upsurge of crime and criminality. Not so according to Fairness and Accuracy In Reporting (FAIR), a media watchdog group. Crime rates in the US have actually slightly declined over the past 20 years, what has changed is media coverage of crime related issues which increased 250% in recent months.

The effect this media onslaught has had is predictable. In June, 1993, 5% of those polled by the Washington Post named crime as the most important issue facing the country. By February, 1994, after months of shrill media bombardment 31% of those polled listed crime as the most important national issue, far outstripping any other issue. Asked where they got their information crime, 65% said they learned about ...

NM Visitors May Refuse Searches

Diane Castro is married to a New Mexico state prisoner. Prison officials received an anonymous telephone call stating that Castro was smuggling drugs to her husband at the Southern New Mexico Correctional Facility (SNMCF). Upon her next visit Castro was taken to a conference room and asked by the deputy warden and captain to submit to a strip search. Castro initially refused and the officials stated they would contact state police to obtain a search warrant. After further detention Castro surrendered two baggies of marijuana and was then strip searched. Charged in state court with attempting to smuggle drugs into a correctional facility, she pleaded guilty but appealed the lower court's denial of her suppression motion. The New Mexico state court of appeals held that prison officials lacked reasonable suspicion to search Castro and the evidence should have been suppressed.

In its ruling the court followed every federal appellate court to consider this question by holding that prison officials must have reasonable suspicion before they can strip search a prison visitor. The court then went further and held "even when reasonable suspicion is present the visitor must be afforded the opportunity to refuse to be searched and be escorted ...

2nd Cir. Declines to Rule on Informant Testimony

Jerome Russell is a New York state prisoner. He was infracted for allegedly assaulting another prisoner. At the disciplinary hearing the hearing, officer questioned the investigating guard who had provided statements from the victim and three informants who identified Russell as the assailant. At the hearing, Russell requested the victim and three informants' testimony. The victim refused to answer any questions and the presence of the informants was denied. Russell was found guilty and sentenced to 180 days in segregation and a loss of privileges. Russell conducted an administrative appeal which resulted in a reversal of the disciplinary finding. At a second hearing he was again found guilty, again appealed and again the finding was reversed. No third hearing was ordered and Russell was returned back to the general prison population. Throughout the hearing and appeal process Russell was housed in segregation and denied privileges.

Russell filed suit in federal court under § 1983 claiming that the hearing officer's failure to independently assess the informants' reliability and credibility breached a clearly established due process right. The defendants sought qualified immunity claiming that no such right was clearly established in the second circuit. The district court denied the motion at 782 ...

Prisoners Retain Right Against Self-Incrimination

Coy Phelps is a patient involuntarily committed in a Federal Medical Center (FMC) after having been acquitted of criminal charges by reason of insanity. He filed suit challenging both the statutes allowing his commitment and the conditions of confinement he was subjected to. He claimed that prison officials held, without notice, his incoming and outgoing mail and refused to deliver it to him. Prison officials also allegedly placed him in seclusion after he refused to answer questions which might amount to self-incrimination and he claimed he was punished for refusing to attend institutional meetings held in the chapel, which violated his religious beliefs. The district court granted summary judgment in favor of prison officials (the FMC is operated by the Bureau of Prisons) and dismissed the complaint. The court of appeals for the eighth circuit affirmed in part, reversed in part and remanded.

The appeals court affirmed the lower court's denial of Phelps' motion for the appointment of counsel. The court held that Phelps was an experienced litigant who had failed to present evidence showing on appeal as to how counsel would have helped him or the court. That he was committed to the FMC was merely one factor ...

Prison Industries Supervisor Liable for Attack

Jay Holloway is a prisoner at the Iowa State Penitentiary (ISP). He was assigned to work in the prison industries building under the supervision of Ray Miller. While at work Holloway was attacked by four other prisoners who believed he had summoned a guard to the work area where they ...

Prisoners Denied Right to Vote

By Paul Wright

In the May, 1994, issue of PLN we ran an article, "Giving Cons and Ex-Cons The Right to Vote" which outlined a litigation strategy to obtain just such a right. Nine New York state prisoners at the Green Haven prison filed suit under a strategy similar to that outlined in PLN. The district court in this case dismissed the case stating that if any significant steps are going to be taken in the area of voting rights for prisoners the step is best taken by a higher court.

The court notes that the preponderance of minority groups in prisons "is a subject of profound concern. The ability of the judiciary to confront the underlying reasons for this phenomenon is limited." Essentially confirming the role of the judiciary in maintaining the status quo rather than challenging its inherent injustices.

The court states that empowering prisoners to vote in local elections might swamp local electorates and leave prisoners to "guide the destiny" of municipalities. Of course, the court does not note that if such a result were possible it would be due to the policy of most states and the federal government to locate prisons in small, isolated rural ...

WA Prisoners Must Exhaust State Remedies

John Dewyer is a Washington state prisoner. He is serving a determinate, SRA sentence. At a prison disciplinary hearing he was found guilty of an unspecified offense and sanctioned by 15 days of segregation and 30 days loss of good time, the latter extended his prison sentence. Dewyer then filed suit under section 1983 in US District Court in Seattle.

The attorney general's office filed a motion requesting that the action be stayed until such time as Dewyer had exhausted state habeas corpus remedies. The district court Magistrate Weinberg, granted the motion as well the AG's motion to publish the ruling.

The district court held that whenever a prisoner challenges the length or legality of his/her sentence, that challenge must be brought via habeas corpus, which requires the exhaustion of state remedies, not section 1983 which has no exhaustion requirement. See: Preiser v. Rodriguez, 411 US 45, 93 S.Ct. 1827 (1973) and Young v. Kenney, 907 F.2d 874 (9th Cir. 1990).

However, the court did not make mention of Sisk v. CSO Branch, 974 F.2d 116 (9th Cir. 1992) which held that prisoners challenging disciplinary hearing involving the loss of good time may challenge ...

WA S.Ct. Upholds Sex Offender Registration

In 1990 the Washington state legislature passed RCW 9A.44.130(1) which requires that all persons who have been convicted of a sex offense and reside in Washington to register with the sheriff in the county in which they reside. Two sex offenders who had been convicted prior to the law's passage challenged its application to them, contending it violated their rights under the Ex Post Facto provisions of the state and federal constitutions. The Ex Post Facto clause prohibits the government from increasing the punishment for crimes after they have been committed or criminalizing behavior after it has been committed.

One of the unique provisions about the Washington sex offender registration law is that it allows police agencies to publicly disseminate the information about where registered sex offenders are living. There are no guidelines as to which sex offenders' release and/or residence will be publicized. In 1993 Joseph Gallardo was released from prison and police officials publicized where he would be living, this led to a witchhunt where Gallardo's house was burned down and he was, essentially, run out of the state by citizens fanned into a frenzy by the media and police. It is ...

Cross Gender Strip Searches Illegal

David Canedy is a Wisconsin state prisoner. He filed suit claiming that during a shakedown of his housing unit female guards strip searched him, causing him embarrassment, humiliation and mental distress. Male guards were readily available and could have conducted the search. He also claimed that female guards routinely observed male prisoners' private settings: while showering, dressing, defecating, and asleep in various stages of undress. He claimed these actions violated his right to privacy as well as his religious beliefs. The district court dismissed the suit for failing to state a claim upon which relief could be granted. The court of appeals for the seventh circuit reversed and remanded.

The appellate court noted that the right to privacy is firmly protected by the constitution. While all forced observations of the naked body implicate a privacy concern, it is generally considered a greater invasion to have one's naked body viewed by a member of the opposite sex. While prisoner's right to privacy is of necessity diminished in prison, it is not completely extinguished.

While not ruling on the matter directly, in a footnote the court mentions the fact that Canedy's claims might well have failed under Turner v ...

English Only Rule for Prayer Illegal

DeMont Conner is a Hawaii state prisoner. He filed suit under section 1983 claiming prison officials had violated his due process rights by punishing him for praying in Arabic with another prisoner and that the disciplinary hearing itself did not comport with due process. The district court dismissed the suit by granting summary judgement in favor of prison officials. The court of appeals for the ninth circuit affirmed in part, reversed in part and remanded. An earlier opinion by the appeals court, at 994 F.2d 1408, (See December, 1993, PLN) is superseded by this ruling.

The appeals court begins by analyzing Hawaii disciplinary segregation rules and concluding that they create a liberty interest in Hawaii prisoners remaining free from disciplinary segregation. The court then held prison officials had violated Conner's right to due process by not permitting him to call witnesses at the disciplinary hearing. "Prison disciplinary committees may not deny a defendant the right to call important witnesses solely for the sake of administrative efficiency... Rather, they must show the adequacy of their justification for denying a request to present witnesses in a disciplinary proceeding."

The court went on to hold that "In the context of a ...

CO Ad Seg Rules Don't Create Liberty Interest

Vernon Templeman is a Colorado state prisoner. After spending seven years in administrative segregation (ad seg) he was placed in a maximum security general population. A year later he was again placed in ad seg. Despite requesting a three member panel, only one hearing officer conducted the hearing and ordered Templeman placed in ad seg. The order was upheld on administrative appeal. Templeman filed suit claiming that this violated his right to due process and equal protection of the law. The district court dismissed the suit as frivolous. The court of appeals for the tenth circuit affirmed.

The appeals court noted that prisoners have no right under the federal constitution to remain in the general prison population. Any such right must be created by the state. After examining Colorado DOC Regulation 600-2, governing ad seg placements, the court concluded that no discretion is placed on prison officials' decisions to place prisoners in ad seg, thus, no due process liberty interest has been created. Colorado prisoners can be placed in ad seg for any reason or no reason at all. That Templeman's request for a three person hearing committee was denied did not matter because it was discretionary.

Prisoners in ...

Non-English Mail Okay

Khannfeuang Thongvanh is an Iowa state prisoner. Thongvahn is a native Laotian whose primary language is Lao, though he speaks some English. Prison rules mandate that all incoming and outgoing prisoner correspondence be in English to allow for censorship. Prison officials at the Iowa State Reformatory (ISR) exempt Spanish and ...

Filthy Cell Standards Clarified

Two Nebraska jail prisoners, one convicted of a crime, one not yet convicted were moved into a jail cell containing a "toilet... covered with dried feces on both the inside and outside, the sink was covered with hair and vomit, the floor was covered with garbage and rotting food, and the walls were covered with dried human mucus." The detainees complained but jail officials refused to move them to another cell or to provide them with cleaning supplies. They were unable to clean the cell until a new shift came on and they were given limited cleaning supplies a few hours later and additional supplies the next day. They filed suit claiming that the filthy cell violated their constitutional right to be free from cruel and unusual punishment. The case went to trial and a jury found in the detainee's favor and awarded them each one dollar in nominal damages. The court awarded them attorney fees and costs. The court of appeals for the eighth circuit reversed and remanded.

The appeals court held that the plaintiffs had failed to state a claim. At the outset, the court resolves the question of what standard is applied to pretrial detainees as ...

Change in Parole Hearings Violates Ex Post Facto

PLN readers may recall that in the December, 1993, issue we reported on the conflict within the ninth circuit on whether changing the frequency of parole board hearings violates the Ex Post Facto provisions of the constitution. In Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993) the ninth circuit held that changes in Washington state law which moved prisoners'  parole eligibility hearings years past what it had initially been set at did not violate the Ex Post Facto clause. Three days later, in Flemming v. Oregon Bd. Of Parole, 998 F.2d 721 (9th Cir. 1993) the court held that a change in Oregon parole rules which changed the frequency of parole hearings did violate the Ex Post Facto Clause.

That conflict on this issue has only deepened. Jose Morales is a California prisoner convicted of murder in 1971, released on parole in 1980 and again convicted of murder. At the time of his second murder conviction California law provided for annual parole hearings. This law was later amended to allow for parole consideration hearings every three years.

Morales first became eligible for parole in 1989 and was found unparoleable. His next hearing was scheduled three years later ...

Delay in Treatment States Claim

Dean Delker is an Oregon state prisoner. He filed suit under § 1983 seeking injunctive and monetary relief from prison officials who refused to authorize surgery to treat his inguinal hernia (this is a hole in the abdominal wall where the intestine pokes through; it is easily treated but left untreated ...

No Right to Self-Defense in Prison

John Rowe is an Indiana state prisoner. A prisoner named Michael Evans was moved into a cell next to Rowe and Rowe complained to staff, who did nothing. Evans sent Rowe a note demanding sexual favors. The next morning Evans entered Rowe's cell and attempted to rape him, Rowe screamed for help and hit Evans with a hot-pot in an attempt to fend off the attack. Another prisoner separated the two men. Prison officials infracted and punished all three prisoners.

At his disciplinary hearing Rowe claimed self defense. The hearing committee found that Rowe had committed battery by hitting Evans and said there was no defense of self-defense in Indiana prison disciplinary hearings. However, self defense could be a mitigating circumstance. As a result, Rowe was ordered to serve one year in disciplinary segregation which was then suspended. Rowe filed suit claiming that the denial of a right to self defense in prison disciplinary hearings violates federal due process. The district court granted summary judgment for prison officials holding that because the punishment had been suspended the disciplinary ruling against Rowe did not implicate the due process clause. In the alternative, the court held that even if due process ...

Shackling States Claim

Jerome Williams is a Michigan state prisoner. After damaging the toilet in his cell, Williams was removed from his cell and placed in restraints where he was fully restrained by chains and shackled to his bed; where he remained for 73 hours. He was allowed to smoke and use the toilet from time to time. The restraint was carried out on the orders of Ionia Maximum Correctional Facility (IMCF) Deputy Warden Peter Vidor. A Sgt. Ray placed Williams in the restraints and periodically checked on his condition. During the restraint Williams complained of abdominal pain where he had an exposed stitch from an old stab wound and colostomy closure. A nurse wrapped a pillow case around the abdominal chains which remained around him. At no time during the period of restraint was Williams violent or otherwise resistant to his treatment. Williams filed suit under § 1983 claiming that the shackling violated his eighth amendment, due process and equal protection rights.

The district court granted summary judgment in favor of the defendants and dismissed the suit. The court of appeals for the sixth circuit affirmed in part, reversed in part and remanded.

The appeals court affirmed dismissal of the suit pertaining to ...

Prisoners Have Right to Jury from Community

Emmanuel Mitchell is a Tennessee state prisoner. He sued prison officials claiming excessive use of force and placement in an unsanitary cell. After a jury trial judgment was entered in favor of prison officials, Mitchell filed a motion for a new trial claiming that the verdict went against the weight of the evidence and that he was denied a jury composed of a fair cross section of the community. The district court denied the motion and affirmed the jury verdict

The Jury Selection and Service Act, 28 U.S.C. § 1861-1878, is a broad policy statement governing jury selection in federal district courts. The Act forbids discrimination based on race, religion, gender, economic status, etc. Parties may object to the composition of a jury before voir dire is conducted. The court held that Mitchell's objections were time barred because he did not make them before voir dire or within seven days of discovering the problem.

Plaintiffs in civil rights suits retain a federal constitutional right to a jury composed of a fair cross section of the community. Such a selection is necessary for the fairness of the judicial process. The court held that plaintiffs retain this right in criminal ...

Court is Ultimate Arbiter of Consent Decree

In 1984 the United States government and the state of Michigan entered into a consent decree which required improvements in Michigan penal facilities so that they would comport with minimal constitutional standards. After several years of improvements and monitoring the parties filed a joint motion in 1992 requesting that the district court dismiss portions of  the consent decree. The rationale behind the motion was that the state had allegedly complied with those terms of the decree. The district court refused to accept the parties stipulation in its entirety and thus did not vacate the decree. The state of Michigan appealed and the court of appeals for the sixth circuit affirmed.

"Because the `power and prestige' of the court rests behind a consent decree, a district court is not simply empowered, but is actually obligated, to exercise its independent judgment regarding compliance with a decree. Otherwise, a court would simply become a rubber stamp for the parties, and the policing role of the court would become meaningless." Once a decree is entered it becomes the court's judgment. The court has an obligation to exercise jurisdiction in a meaningful manner, "it may not blindly defer to the stipulation of the parties ...

Urinalysis is Search

Anthony Lucero is a Colorado state prisoner. He refused prison official's order to submit a urine sample for urinalysis testing and was infracted, found guilty and punished for refusing to obey an order. Lucero filed suit under § 1983 claiming that the urinalysis violated his rights to be free from unreasonable searches and seizures, his right against self incrimination and denied him his right to counsel. The district court dismissed the suit for failing to state a claim upon which relief could be granted.

The court of appeals for the tenth circuit affirmed in part, reversed in part and remanded. The court held that even though Lucero did not submit to the urinalysis his fourth amendment rights were still implicated because he was punished for refusing to submit to the test. While no court has addressed this issue regarding prisoners, other courts have held that government  employees may properly raise a fourth amendment claim to an employer's order to submit a urine sample if an adverse consequence will flow from refusal. In light of these cases the court held that prisoners may raise fourth amendment challenges to prison officials' request for urine samples.

Because a urinalysis is a search ...

Administrative Exhaustion May Be Required

Leopold Pedraza is a Texas state prisoner. He filed suit under § 1983 claiming prison officials harassed him because of his race, national origin and prior litigation. At no time did Pedraza file grievances or complaints with prison officials concerning his allegations. A magistrate ordered the suit stayed for ninety days to allow Pedraza time to exhaust administrative remedies. Pedraza did not pursue his administrative remedies and his suit was dismissed.

The court of appeals for the fifth circuit affirmed. The appeals court notes that under 42 U.S.C. § 1997e federal courts have the discretion of requiring prisoners to exhaust prison administrative remedies before having their cases heard in federal court. The purpose of this rule is to reduce the number of prisoners suits in federal courts and improve relations between prisoners and prison officials.

In this case Pedraza admitted he had only gone through one of three steps in the prison grievance process. The appeals court held that "District courts have the power to dismiss prisoners' civil rights complaints with prejudice after granting a section 1997e continuance" when the prisoner does not pursue his administrative remedy. Readers will note that the section 1997e requirement applies only to those prison ...

RFRA Supersedes O'Lone


As reported in PLN, Vol. 5, No. 6, the Religious Freedom Restoration Act (RFRA) was signed into law by President Clinton in November, 1993. It forbids government infringement of religious rights and claims. The RFRA is already being applied to prisoner civil rights actions with initial victories for prisoner plaintiffs.

Minister Allah is a Pennsylvania state prisoner. He filed suit against prison officials claiming they had violated his right to free exercise of religion by denying a request to establish an opportunity to worship for a Muslim sect named the Temple of Islam. Prison officials denied the request because other Muslims were already permitted to worship at the prison. Allah submitted affidavits from Nation of Islam spiritual leaders noting the differences between the faiths. Prison officials sought summary judgment which the district court denied, holding material issues of fact remained to be resolved.

In 1987 the Supreme Court decided O'Lone v. Estate of Shabazz, 482 US 342, 107 S. Ct. 2400 (1987) which had the effect of significantly limiting prisoners' religious rights. The decision instructed federal courts to uphold prison officials' decisions that violated prisoners' religious rights as long as the decision was "reasonably related to a ...

RFRA Has Retroactive Application

Adherents of the Hebrew Israelite faith challenged Florida prison regulations which forbade their receipt of Hebrew Israelite literature. A class action suit challenging the censorship culminated with a victory for the prisoners at 641 F. Supp 312 in 1986. The court of appeals for the 11th circuit affirmed in part, reversed in part at 840 F.2d 781 and the Supreme Court remanded the case for consideration in light of Thornburgh v. Abbott, 490 US 401, 109 S.Ct. 1874 (1989). In January of 1994 the district court reaffirmed its ruling in favor of the prisoner plaintiffs.

The court held that not only was Thornburgh applicable to the case but because the literature involved was religious in nature the Religious Freedom Restoration Act (RFRA) also applied. (For an explanation about the RFRA see PLN, Vol. 5. No. 6). While mail censorship was not specifically mentioned in the RFRA it applies to all cases where the free exercise of religion is substantially burdened by government action. While the events in issue occurred several years before the passage of the RFRA the court held that the Act was to be applied retroactively.

The court held that the complete ban on Hebrew Israelite ...

Court Upholds Denial of Prisoner Witness Fees

In 1991 a unanimous Supreme Court held in Demarest v. Manspeaker, 111 S.Ct. 599 (1991) that prisoners were entitled to witness fees whenever they testified in federal courts. Just before leaving office George Bush signed into law a modification of 28 U.S.C. § 1821 which forbade paying prisoners witness fees. PLN covered the issue at the time. The fee in question is $40 per day.

Michael Moran is a federal prisoner who was brought to a county jail to testify as a potential witness pursuant to a federal court subpoena. He did not actually testify but spent 27 days in the jail. He was refused witness fees and filed suit challenging the constitutionality of 28 U.S.C. § 1821(f) which denies prisoners witness fees. The district court upheld the statute. The court of appeals for the seventh circuit affirmed, giving Moran short shrift.

"It is hardly irrational to deny fees and allowances to prisoner witnesses. Their time is the govermnent's. If the government decides that some of it shall be spent in the witness box, they are no more entitled to compensation than they are entitled to be compensated for time spent cooling their heels in ...

Transport of Prison Made Goods Illegal

Preston Glove Company is a Mississippi textile manufacturer who entered into a contract with Magnolia State Enterprises, a quasi governmental business incorporated pursuant to the Mississippi Prison Industries Act of 1990, for the use of prison laborers and Magnolia facilities. Under the contract Preston Glove provided the materials and paid Magnolia $1.86 per dozen gloves manufactured by prison slave labor. On December 3, 1993, federal treasury agents conducted a search of Magnolia's operation at the Mississippi State Penitentiary (MSP) at Parchman and seized various items as possible violations of 19 U.S.C. § 1304 (mislabeling foreign made goods) and 18 U.S.C. § 1761, also known as the Ashurst Summers Act, which forbids the transport of prison made goods in interstate or foreign commerce. Preston Glove filed suit seeking declaratory relief as to whether or not 18 U.S.C. § 1761 is being correctly interpreted by the government. The suit claims the government's actions have interrupted the contractual relationship between Magnolia and Preston. The government has not yet prosecuted anyone but that remains a possibility.

The district court held that the Act was constitutional on its face and as applied. This case is of interest to prisoners ...

Photos Unlawful

Scott Lattany was a federal pretrial detainee representing himself pro se on criminal charges in Philadelphia. Lattany was taken from his cell to the jail parking lot where he and other prisoners were photographed by U.S. Marshalls. Lattany protested the picture taking as illegal and racist, one of the marshals cursed him, using racist epithets, and told him to shut up. En route to the courthouse the van the plaintiff and Marshals were traveling in was involved in an accident. Lattany and another prisoner were injured. After a delay of several hours the prisoners were taken to a hospital, given pain medication and returned to jail. Lattany filed suit claiming that the unnamed marshals had violated his right to privacy by taking his picture in the parking lot and his right to medical care by delaying medical treatment after the accident. The government moved for dismissal or, in the alternative, for summary judgment, which the court denied.

The court held that both prisoners and pretrial detainees have a federal constitutional right to privacy which prohibits being photographed without their consent and without a law enforcement purpose. The supreme court has held prisoners "are not like animals in a zoo ...

FL DOC to Deport Aliens

Florida Governor Lawton Chiles announced on March 17, 1994, that he hopes to persuade federal immigration officials to let the state release foreign felons convicted of nonviolent crimes and then ship them home. The Immigration and Naturalization Service (INS) has identified 2,700 Florida state prisoners as undocumented immigrants, while the state DOC puts the number at more than 4,100.

Talks between the Governor's office and the INS are still in the preliminary stages. Under the plan, the state would grant clemency to nonviolent illegal immigrant convicts who agree to be deported or who already face deportation orders once they complete their prison sentences. The prisoners would then be tuned over to the INS and deported to their country of origin. If the illegal immigrants returned to Florida and were picked up by police, they would be returned to prison to serve the remainder of their prison sentences. No Cubans would be eligible because the United States does not have diplomatic relations with Cuba.

The deportation plan is expected to save the state millions of dollars it would otherwise spend to keep the illegal immigrants in prison. The federal officials quoted in the Seattle Times article of March ...

Suit Filed Against "Shoot to Wound" Policy

Suit Filed Against "Shoot to Wound" Policy

The American Civil Liberties Union's National Prison Project, based in Washington, D.C., and Reno attorney Donald Evans filed a class action lawsuit in the U.S. District Court on May 16th, 1994 against the governor of Nevada and officials of the Nevada Department of Corrections on behalf of inmates at Ely State Prison (ESP). Attorney Evans already represents a number of individual inmates at ESP.

The lawsuit names Governor Robert Miller, Nevada Department of Prison director Karl Sannicks, and E.K. McDaniel, warden of Ely State Prison, as defendants.

The suit alleges that "an atmosphere of terror and violence" pervades ESP, and results directly from improper training and supervision of correctional staff and failure by defendants to monitor, investigate and discipline misuse of force by staff. "Staff at ESP feel they are above the law," according to National Prison Project staff attorney Mark Lopez, "while the prisoners are without recourse." ESP is located in a remote area 300 miles from any major city, he noted, and, for most family members and attorneys, is accessible only by car. "Because of the staffs isolation," notes Lopez, "they are convinced that they need not ...

Texas Prison Reform Suit May Reopen

In 1972, a Texas state prisoner, David Ruiz, filed a lawsuit in Federal Court alleging many conditions in the Texas prison system violated the constitutional rights of those incarcerated. The suit was consolidated with other Texas prisoners' complaints and certified as a class action suit. It would become one of the most costly and sweeping state prison reform suits in the nation's history.

In 1980, eight years after Ruiz had filed his suit, the case went to trial in the Southern District of Texas before Judge William Wayne Justice. At the conclusion of the 159 day trial, Judge Justice found that many of the conditions and practices of the Texas prison system did indeed violate fundamental constitutional rights of those incarcerated in the Texas Department of Corrections, and ordered immediate changes. Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980) affirmed in part, modified in part, reversed on other grounds 679 F.2d 1115 (5th Cir. 1982). Several of the court ordered remedies included: reduction of overcrowding and placing a population cap of 95% of rated capacity, elimination of the "building tender" system which placed some prisoners in authority over other prisoners, improvement of access to the ...

The ACLU Takes Indiana Prison Officials to Court

Mentally ill prisoners shackled to their beds, sick prisoners denied treatment, indigent prisoners forced to pay for medication or do without -- these and other deplorable conditions at the Westville Correctional Center have forced attorneys for the prisoners to return to the US District Court to ask Judge Allen Sharp to find the Department of Corrections in contempt of the court-approved agreement reached in 1989..

In a case first filed in 1983 (Anderson v. Orr), the National Prison Project of the American Civil Liberties Union together with local counsel, successfully challenged the totality of conditions and practices at Westville Correctional Center, the largest prison in Indiana. The prison holds 2,800 medium security prisoners in dormitory-style housing and between 120-180 prisoner/patients in a psychiatric unit which serves the entire state prison system. In the preparations for trial and the extensive negotiations that took place between 1987-89, the main focus of the plaintiffs' efforts was improvement of the appalling psychiatric and medical conditions that existed. At the time of filing, there was no physician coverage at the facility, and treatment in the psychiatric unit was virtually non-existent. As a result, there were no sick call clinics or other means for prisoners ...

From The Editor

From the Editor

By Paul Wright

Welcome to another issue of PLN. We apologize to our readers for the delays caused in recent months. Our new printer is working out quite well and as a result we are able to bring you more pages for the same amount of money. In May of 1993 we made the transition from a 10 to a 16 page publication as we had outgrown our 10 page format. With the increase to 20 pages we have doubled in size within the period of one year. Please keep sending us your news and articles, we rely on our readers to keep us up to date on issues and struggles around the world. This in turn lets us keep our readers informed. Sending typed, brief articles is the quickest way to get it into print. With more pages we hope to bring still more extensive and timely coverage of prison issues. If you have any specific questions about article submissions write and enclose an SASE.

PLN has never pretended to be "objective" or "unbiased." Our role is to be a voice for progressive prisoners and their supporters in the prison struggle. That is simple enough. I ...

PLN Suit Filed Against ISRB

By Paul Wright

Readers may recall that former PLN coeditor Ed Mead was released from prison in October, 1993, after serving nearly 18 years in prison. The day after he was released he was required to sign a standard conditions of release document for the Washington state Indeterminate Sentence Review Board (ISRB), formerly known as the parole board. Four days later, the ISRB added a new condition: "Do not associate with individuals with prior felony convictions." A similar restriction on Ed's federal parole was interpreted by Ed's federal parole officer to prohibit only direct physical contact with felons. Ed's state parole officer specifically explained that the state prohibition explicitly prohibited direct or indirect contact (i.e. by mail or phone), even through third parties, with felons. This specifically included PLN.

On November 14, 1993, Ed filed an administrative request with the ISRB seeking a modification of the restriction so as to allow him to continue working on publishing PLN. The ISRB refused to modify its instruction.

The effect of this order were that Ed and I could not communicate by mail or phone to consult on PLN related matters. Ed's parole officers have repeatedly questioned him ...

Drug Use Legalized in Columbia

On May 5, 1994, Columbia's Constitutional Court (the equivalent of the US Supreme Court) voted five to four that a 1986 law permitting the arrest of someone for carrying a "personal dose" of drugs was a violation of the country's new constitution. Court president Jorge Arango explained that the penalty for possession of a personal drug dose "was a violation of individual rights and therefore contrary to the constitution." Arango added that the court's decision was made after much discussion and without taking into account the opinion of the United States.

US President Bill Clinton and Colombian President Cesar Gaviria both condemned the court ruling. Gaviria said a referendum and revision of the Colombian constitution should be considered. The court decision is expected to raise tensions between the US and Colombia, already high because of public statements by Colombian Attorney General Gustavo de Greiff favoring sweeping drug legalization; what the US sees as his leniency towards drug traffickers and his intervention on behalf of Dandeny Mufioz Mosquera, a Colombian on trial in the US for allegedly blowing up a Colombian airliner.

De Greiff has defended his position by saying that the war on drugs "has been a ...

Prisoner Dies at Purdy

In the April, 1994, issue of PLN we reported Hallett v. Payne, a class action suit filed by prisoners at the Washington Corrections Center for Women (WCCW) at Purdy. The suit contends medical care is wholly inadequate to meet the medical needs of prisoners. On May 16, 1994, Gertrude Barrow, a WCCW prisoner died because a hole in her stomach permitted fluids to leak out, causing inflammation and infection. Barrow had been convicted of a narcotics charge with a 31 month sentence; she was due to be released September 14, 1994.

According to an article in the May 18, 1994, edition of the Seattle Times, Barrow had sought medical care from prison officials in the days before she died. Her symptoms included the fact that she was in pain, couldn't hold food down and was vomiting blood. She was sent back to her cell. Two days before her death she was admitted to the prison infirmary, and she was not seen by a physician until the day before she died. Prison doctor Christopher Badger had diagnosed her pains as gas, constipation and, after an x-ray, kidney stones. The condition that killed Barrow was a perforated, chronic gastric ulcer with ...

News in Brief

KS: The state legislature enacted a death penalty law that becomes effective July I, 1994. The law restored the death penalty in Kansas for the first time since 1972 when the US Supreme Court struck down as unconstitutional Kansas' death penalty statute. Governor Joan Finney allowed the bill to become law without signing it, claiming she opposes the death penalty but not enough to veto the law.

CA: The racketeering convictions of federal district court judge Robert Aguilar was overturned by the ninth circuit court of appeals. Aguilar was convicted in 1990 of racketeering for allegedly trying to influence other judges to be lenient in sentencing his friends. He was also convicted of disclosing wiretap testimony and obstructing a grand jury. Sentenced to six months in prison, Aguilar has remained free on bail during three years of appeals and kept his title and salary, presiding over settlement conferences in federal court, but not court sessions. The decision barred any retrial.

Australia: Gary Hayes was arrested and strangled unconscious by police in Wembley in 1989. In April, 1994, Hayes stole an M 113 armored personnel carrier (APC) from a military base, drove it to the offices of Wembley's Criminal Investigation ...

Prison Psychologist Opens Brothel

While this case has little bearing on prison litigation per se we thought our readers would find it informative and amusing. William Knapp is the Principal Psychologist for the Nevada Department of Prisons. He was fired from his job after initiating and pursuing a venture to open a "western theme-park brothel." He was later reinstated with back pay after an administrative service personnel hearing. However, he was demoted for seeking outside employment.

Knapp filed suit claiming he had a protected first amendment interest in promoting his brothel business. The district court held that Knapp's concerns were primarily economic rather than expressive but still entitled to some constitutional protection. The court ordered the defendants to respond to this finding. See: Knapp v. Miller, 843 F. Supp 633 (DC NV 1993).

HIV+ Cellmate Doesn't State Claim

This is yet another addition to the growing area of HIV/AIDS in prison case law. Andrew Marcussen is an Iowa state prisoner. He filed suit claiming prison officials were deliberately indifferent to his safety by assigning an HIV+ prisoner to his cell, thus, he claimed, exposing him to possible HIV infection. Marcussen claims he was subjected to the risk of HIV infection when his cellmate used his razor, drinking cup and cigarette roller. Marcussen has tested negative for HIV.

The district court gave a detailed discussion of AIDS in prison cases. Citing several court decisions on this issue, as well as U.S. Department of Health reports, the court held that, as a matter of law, there is no "pervasive risk" of contracting HIV/AIDS through being housed with HIV+ prisoners. AIDS activists should read this case to be better informed on developments in this relatively new area of prison law. This court ruling joins every other published decision to consider this issue by dismissing the suit. See: Marcussen v. Brandstat, 836 F. Supp 624 (ND Iowa 1993).

Prison Overcrowding Crisis Continues, Says ACLU Report

Washington,  D.C.  - February 14, 1994- Thirty-nine states, plus the District of Columbia, Puerto Rico and the Virgin Islands, are under court order to reduce prison overcrowding and/or to remedy unconstitutional conditions, according to the new Status Report released today by the National Prison Project of the American Civil Liberties Union. In each case, conditions of confinement and/or overcrowding in the facilities were found to violate the ban against cruel and unusual punishment of the Eighth Amendment to the U.S. Constitution.- (See enclosed report summary.)

Since 1982 (the year the Prison Project initiated the report) the total number of states (including D.C., Puerto Rico and the Virgin Islands) under these court orders has increased from 28 to 39. During the same period five states have been completely relieved of federal court supervision and two other states have been relieved of active court supervision.

Overcrowding lies at the root of most of the lawsuits as the population of both state and federal prisons swells by the week. California, for example, holds 110,049 prisoners in a system designed to hold 59,385.

According to Alvin J. Bronstein, executive director of the National Prison Project, "Our political leaders--President ...

OH Double Standard

Last year numerous prisoners filed small claims actions for personal properly damaged and/or destroyed during the April 11, 1993, insurrection at SOCF Lucasville, Ohio, claiming that the fault was with prison officials whose actions precipitated the riot and further knew or should have known that a riot was imminent and failed to take preventive or other measures to maintain the security and safety of its charges.

After an influx of such claims Court of Claims judge Russel Leach publicly announced that all prisoner claims arising from the April 11 rebellion were without merit and prison officials would not be held responsible. All such suits were then summarily dismissed.

In February, 1994, several prison guards and their families filed suits in the Court of Claims alleging that prison officials were at fault for the riot, that they knew or should have known that a riot was imminent and took no steps to prevent it. Attorneys for the guards stated "this is about truth... So it doesn't happen again." Guards and their spouses are seeking an unspecified amount of damages. Judge Leach has been silent. Another case of Just-Us.

E.H. Lucasville, OH


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