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Prisoner Education Guide

Prison Legal News: December, 1995

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Volume 6, Number 12

In this issue:

  1. 10th Circuit Vacates Utah Court Access Order (p 1)
  2. Denial of Toilet Unconstitutional (p 2)
  3. From the Editor (p 2)
  4. Opening Legal Mail Violates Access to Courts (p 3)
  5. Detainee States Claim for Retaliation and Med Needs (p 4)
  6. WI Court Upholds DOC Classification Policy (p 4)
  7. Sending State Responsible for Legal Materials (p 5)
  8. RFRA Analyzed and Applied in 10th Circuit (p 5)
  9. Missouri Ad Seg Damages Award Upheld (p 6)
  10. Reversal of Disciplinary Hearing Doesn't Moot Suit (p 6)
  11. CA Guard Plants Ammo (p 7)
  12. Open Prison Barracks Unsafe (p 7)
  13. Iowa Crime Legislation (p 8)
  14. Job Discrimination States Claim (p 8)
  15. Withholding of Legal Papers Illegal (p 9)
  16. Guard and Prisoner Get Damages in Beating Trial (p 9)
  17. Washington Translation Suit Settled (p 10)
  18. Detainees May Be Disciplined (p 11)
  19. Ohio Prison Doctor Imprisoned (p 12)
  20. Ohio Mental Health Decree Entered (p 12)
  21. Jail Detainee Entitled to Law Library Access (p 13)
  22. South Korean Political Prisoners Protest (p 13)
  23. Sexual Harassment Violates Eighth Amendment (p 14)
  24. PA Prison Investigated for Corruption; Biggest Shake Down Ever (p 15)
  25. TRO Granted in Alaska Sex Offender Registration (p 16)
  26. No Change in Michigan Consent Decrees (p 16)
  27. Denying Witnesses in Disciplinary Hearings Illegal (p 17)
  28. Florida Repeal of Earned Time Law Upheld (p 17)
  29. Charging for Medication May Violate Eighth Amendment (p 18)
  30. Random Urinalysis Okay (p 19)
  31. NJ Prisoners Have Liberty Interest in Staying in Population (p 19)
  32. RFRA TRO Granted (p 20)
  33. Jury Demand Must Be Timely (p 20)
  34. Court Access May Require Counsel (p 21)
  35. Contract Physicians Entitled to Qualified Immunity (p 21)
  36. Texas Detainee Wins Damages for Ad Seg Placement (p 22)
  37. HIV/AIDS in Prison and Jail (p 22)
  38. Prisoners Entitled to Rely on Marshalls for Service (p 23)
  39. News in Brief (p 23)

10th Circuit Vacates Utah Court Access Order

In the November, 1994, issue of PLN we reported Carper v. Deland, 851 F. Supp. 1506 (D UT 1994) which involved a class action suit filed by Utah state prisoners claiming that the DOC's method of providing court access, contract attorneys with no law library access, was constitutionally deficient. The district court upheld the provision of contract lawyers, with no law library access, and entered an extensive injunction ordering the state DOC to pay lawyers to handle a variety of civil legal matters for prisoners, in addition to habeas corpus and civil rights actions. The court of appeals for the tenth circuit, in a ruling that is out of synch with other circuits, vacated and remanded the case.

Prior to 1990 the Utah DOC (UDC) provided contract lawyers to assist prisoners in habeas corpus, civil rights and general civil matters, such as wills, divorces, workers compensation, etc. In 1990 the DOC promulgated a new legal services policy whereby the DOC hired two private attorneys to assist prisoners in preparing and filing state or federal petitions for habeas corpus and initial pleadings (i.e. complaint, in forma pauperis petition, summons, etc.,) in civil rights actions challenging conditions of confinement in ...

Denial of Toilet Unconstitutional

A district court in Texas has held that placing a jail detainee in a cell with an inoperable sink and toilet and barely functioning shower and denial of hygiene materials violates the eighth amendment. Isiah Sanford was a detainee in the Ector County Jail in Texas when he was placed ...

From the Editor

Welcome to another edition of PLN. We have published continuously for five and a half years now. A lot of people write and ask the same question, "Gee, how did you guys do it?" The answer is simple, hard work and persistence. It's pretty much the same tried and true formula for success that has been utilized by countless people in a wide range of human endeavors. Of course, no matter how much dedication or hard work the PLN collective is able or willing to contribute, we also could not have succeeded without the financial support of you, our readers.

Next month we will publish our first "Annual Index" issue. We're pretty excited about the index. It enhances PLN's usefelness as a serious legal research tool.

We have a large backlog of legal articles to get into print, many of which appear in this issue. So... moving right along, I hope you enjoy this issue of PLN. Pass it along to another when you're done. And please send in a donation of stamps or money. We literally couldn't publish without your continued financial support.

Opening Legal Mail Violates Access to Courts

The court of appeals for the third circuit has held that opening a prisoner's legal mail outside his presence violates his right of access to the courts. The court also held that this right is well established so that prison officials who violate it are not entitled to qualified immunity for doing so. The appeals court gives an extensive review of the case law from all circuits concerning prisoners' right to receive uncensored mail from courts and attorneys. Anyone litigating this issue will find this case extremely helpful as law review articles and legal treatises on prisoners' rights are among the sources cited. Polyns Bieregu is a federal prisoner who received mail from federal courts on five occasions where it had been opened outside his presence. He filed a Bivens suit claiming that the censorship violated his constitutional rights. The district court held that the openings were unconstitutional but that the defendants were entitled to qualified immunity because the right was not clearly established in the third circuit. The court of appeals for the third circuit affirmed in part, reversed and remanded in part.

The court notes that there is some disagreement amongst the circuits as to what right ...

Detainee States Claim for Retaliation and Med Needs

The court of appeals for the seventh circuit has held that pretrial detainees are entitled to adequate medical care and have a right to be free from retaliation for complaining of guard misconduct. Richard Murphy was a pretrial detainee in the Tazwell and Mason county, Illinois, jails. He filed suit claiming that a guard closed a slot on his hand, breaking several bones. He was then denied appropriate medical care for the injury. After accusing the guard of breaking his hand, jail officials retaliated against him by shackling him to the floor of his cell and revoking his phone privileges. He also challenged his conditions of confinement at the jail. The district court dismissed the suit for failing to state a claim under Fed.R.Civ.P. 12 (b)(6).

The appeals court noted that it reviews all 12(b)(6) dismissals de novo, accepting as true all factual allegations in the complaint and drawing all reasonable inferences from these facts in favor of the plaintiff. The court upheld dismissal of the claim that Murphy waited two hours after his hand was broken before being taken to the hospital. The delay occurred because the sheriff's permission was necessary before ...

WI Court Upholds DOC Classification Policy

A Wisconsin state appeals court has upheld DOC rules which establish minimum periods that lifers are required to serve in maximum security prisons. The DOC rules assign each lifer to one of four security classifications, based on the prisoner's conviction, criminal history and sentence structure. The DOC's chief of classification has the discretion to place the prisoner in a medium security prison at an earlier date. On May 11, 1995, the 4th district court of appeals held that these rules do not violate the constitution's ban on ex post facto punishment.

The court noted that the rules only establish presumptive security classifications for the affected prisoners and allow exceptions for individual cases based on a discretionary early assignment process. The court held the rules were implemented to achieve legitimate penological goals and not with the aim to punish for past activity or to make punishment more burdensome.

The court quoted State v. Thiel, 524 N.W.2d 641, 645 (Wis Sup.Ct. 1994), that the rules were not "punishment even though [they] may bear harshly upon [the ones] affected." See: State v. Burrus, Wis Ct.App. Dist. IV, No. 94-1329, May 11, 1995. 57 CrL 1208, 5-31-95.

Sending State Responsible for Legal Materials

The ninth circuit has agreed with other circuits, holding that when a state prisoner is transferred to another state, the sender is responsible for ensuring the prisoners' access to the courts. James Boyd is a Kansas state prisoner who was transferred to the Washington State Penitentiary. He filed suit against Washington prison officials claiming that the WSP law library had insufficient legal materials on Kansas state law. The district court dismissed the suit as frivolous and the ninth circuit affirmed.

The only question on appeal was whether Kansas (the sending state) or Washington (the receiving state) was responsible for providing Boyd with the legal materials he needed. This is an issue of first impression in the ninth circuit. The tenth and first circuits have previously held that the "sending state authorities maintain the responsibility of providing required state legal materials for their prisoners incarcerated in sister state facilities." Clayton v. Tansy, 26 F.3d 980, 982 (10th Cir. 1993), [PLN. Vol. 5, No. 11]; Rich v. Zitnay, 644 F.2d 41, 43 (1st Cir. 1981).

"We agree with the Tenth Circuit, and hold that sending state authorities maintain responsibility for providing state legal materials to their prisoners incarcerated in out ...

RFRA Analyzed and Applied in 10th Circuit

The court of appeals for the tenth circuit has issued its first ruling analyzing the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, holding that it may well require prison officials to provide Native American prisoners with sweat lodge facilities. Robert Werner, a Utah state prisoner, filed suit under the RFRA and 42 U.S.C. § 1983 contending his religious beliefs were violated when prison officials denied him access to a sweat lodge, prohibited him from receiving a medicine bag, failed to provide him with access to a Cherokee Native American spiritual advisor and failed to obtain various religious symbols for him. The defendants moved for summary judgment and the district court dismissed the suit without reaching the legal or factual merits of Werner's claims. The court of appeals for the tenth circuit affirmed in part, reversed in part and remanded.

In passing the RFRA congress overturned the supreme court decisions in Turner v. Safley, 482 US 78, 107 S.Ct. 2254 (1987) as it applies to prisoners' religious claims and O'Lone v. Estate of Shabazz, 482 US 342, 107 S.Ct. 2400 (1987). The RFRA provides substantially greater protection to prisoners' religious rights than the ...

Missouri Ad Seg Damages Award Upheld

The eighth circuit court of appeals has affirmed an award of money damages to Michael Weems, a Missouri state prisoner, who was denied a review hearing while in administrative segregation. The court reaffirmed that Missouri state prisoners have a due process liberty interest of remaining in population and upheld the ...

Reversal of Disciplinary Hearing Doesn't Moot Suit

The court of appeals for the eighth circuit has held that a state court reversal of a prison disciplinary hearing does not preclude the prisoner filing suit for money damages in federal court. The appeals court also criticized and reversed the lower court for dismissing a claim under Fed.R.Civ.P. 12(b)(6), for failing to state a claim upon which relief could be granted, prior to service on the defendants. Wa'il Muhannad is a Nebraska state prisoner who was found guilty at a disciplinary hearing for fighting. Muhannad claimed he was denied 24 hour notice and an opportunity to prepare a meaningful defense at two prison disciplinary hearings. He filed suit in federal court claiming these actions violated his right to due process of law.

Muhannad also filed suit in state court claiming that the second disciplinary hearing relied on insufficient evidence to find him guilty. While the federal suit was stayed, the state court ruled in Muhannad's favor and reversed the disciplinary committee findings. The district court then dismissed this claim as frivolous under 28 U.S.C. § 1915(d) holding that the state court reversal cured any due process violation Muhannad had suffered ...

CA Guard Plants Ammo

California prison guard, Mark B. Hardisty, not satisfied with his share of gravy from the state trough, decided he'd get himself some extra overtime pay. "That is the allegation they've come up with," says Hardisty's lawyer, Mike Rains of the Department of Corrections' case against his client.

According to state investigators Hardisty smuggled six .22-caliber bullets into California State Prison-Solano and planted them in the prison yard. The bullets were later found, wrapped in cellophane, with a note addressed to the prisoners in Building 12 that said, "This is your share." As a result of the ammo discovery, the prison was locked down for ten days.

Prison officials contend that Hardisty wrote the note as well as another note he allegedly "discovered" while processing prisoners' mail that read. "Any officer that wants to make the biggest find of their life, look in and around the trash cans outside of the building."

Hardisty, a CA guard for about ten years, was fired on July 3, 1995. Criminal charges were filed against him. He faces up to four years if convicted.

Rains said he is trying to resolve the case against his client by working out a deal with ...

Open Prison Barracks Unsafe

In the past fifteen years of massive prison expansion many prison systems have opted to build open dormitory type prison barracks because they are substantially cheaper to build than conventional cell blocks. There are inherent shortcomings in this type of prison design. The Connecticut DOC recently discovered it can't "lock down" dormitory prisons after massive riots and disturbances. On the other hand, such prison barracks are notoriously unsafe with weaker prisoners much more likely to be assaulted, raped or killed.

The state of Arkansas has long housed many of its prisoners in open barracks. This has been the subject of extensive litigation. In Finney v. Mabry, 546 F. Supp. 628 (ED ARK 1982) and 534 F. Supp. 1026 (ED ARK 1982) the court entered an extensive injunction designed to ensure prisoners were adequately protected from assault and attack in the prison barracks at the Cummins unit of the Arkansas DOC. Despite the injunction, prisoner safety left much to be desired.

Ernest Smith was housed in a barracks in the Cummins unit. After informing on another prisoner Smith was stabbed with a hobby knife and another prisoner was killed by the same attacker. Smith filed suit claiming that prison officials ...

Iowa Crime Legislation

The 1995 Iowa legislature passed a new wave of bills that affect many Iowa prisoners and ex-prisoners. Among these new laws are: The refusal of the county treasurer to renew vehicle registrations if the person has unpaid delinquent restitution; the inmate hard labor law [Iowa Code § 904.701] which provides for the implementation of chain gangs and other "hard labor"; the entry of a civil judgement by the court against an offender upon the discharge of his/her sentence or probation for the balance, if any, of any restitution still owed to the victim of the crime [§ 910.5(1)(2)]; a charge of contempt of court against an offender after the discharge of his/her sentence or probation for the failure of the offender to continue to comply with the plan of restitution payments ordered by the court [§ 910.4]; limiting the opportunity for lifers to apply for sentence commutation to only one application every ten years, rather than applying at any time [§ 902.2].

One new law which may have the biggest impact on prisoners, limiting their access to the courts, is the law pertaining to litigation filed by prisoners [Sections 610A.1, 610A.3, 610A.4, 903A ...

Job Discrimination States Claim

While prisoners have no right to a job or work assignment they may not be discriminated against on the basis of their race. Lawrence Quinn, a white Pennsylvania state prisoner, applied for the position of clerk in a prison shoe plant. The plant foreman told him he could not have the job because he was not black and shop workers wanted a black prisoner to get the job. A black prisoner was eventually hired for the job. Quinn filed suit claiming that the denial of the job on the basis of race violated his equal protection rights. He also claimed that after he filed a grievance concerning the discrimination he was retaliated against when factory officials stopped paying him additional wages for extra work that he performed.

The defendants moved for summary judgment and the district court granted their motion in part and denied it in part. The court granted judgment with regards to Quinn's due process claims because prisoners have no liberty or property interest in any prison work assignment. Judgment was denied regarding the discrimination claim. "Although the plaintiff has no right to any particular prison job, prison officials cannot discriminate against him on the basis of ...

Withholding of Legal Papers Illegal

A federal district court in New York has held prison guards liable for withholding a prisoner's legal papers for more than two years. The court awarded the plaintiff one dollar in nominal damages and $500 in punitive damages to deter further conduct by prison guards. Donald Frazier, a New York state prisoner at the Collins Correctional Facility, was employed as prison law clerk when he was placed in segregation. While in segregation prison guards packed his legal materials and a guard confiscated some of Frazier's legal papers. Frazier asked for the papers while in segregation but when other guards tried to locate them they were unable to find them. Eventually this confiscation turned into a two year delay. Frazier filed suit and the case went to trial.

During the proceedings Frazier was released from prison and his attorney could not locate him to appear at the trial. His attorney sought to enter Frazier's deposition into evidence in lieu of his actual appearance, the court ruled that the deposition could not be entered because there was no evidence that Frazier was more than 100 miles from the court, simply put, no one knew where Frazier was. The court ...

Guard and Prisoner Get Damages in Beating Trial

A federal district court in New York entered a jury verdict in favor of a state prisoner who was beaten by prison guards, the court also ruled in favor of one of the guards who sued the prisoner out of events arising from the same incident. The ruling in this ...

Washington Translation Suit Settled

On January 23, 1995, Judge William Dwyer, US District Court in Seattle, accepted a stipulated motion in Lopez v. Riveland, Case No. C93-1030WD, a wide ranging lawsuit which challenged the almost complete lack of translation facilities for non- English speaking prisoners in the Washington DOC. This is one of the first lawsuits of its type and like a lot of novel litigation it had a rather long history.

Since 1988 or so I have assisted primarily Hispanic non-English speaking prisoners with their problems relating to inadequate medical care, disciplinary hearings, racism, etc., within the Washington DOC. The problems were readily apparent: policies and disciplinary reports, forms, memos, etc., were not available in Spanish; qualified interpreters were hardly ever provided for medical appointments, hearings, etc.; court access was non-existent; and more. Over the years I assisted prisoners in filing grievances and similar administrative complaints. In 1990 the DOC enacted DOP Policy 430.050 ordering prison wardens to publish prison rules, policies, etc., in Spanish when they were published only in English. This was never complied with or followed by the DOC. Grievances seeking compliance with the policy were met with evasive responses.

The widespread nature of the problems facing Hispanic prisoners ...

Detainees May Be Disciplined

The court of appeals for the first circuit has reversed a district court ruling that pretrial detainees may not, consistent with the constitution, be punished for misconduct in the jail. In the Dec. '94 issue of PLN we reported Collazo Leon v. US Bureau of Prisons, 855 F. Supp. 530 (DC PR 1994). Collazo Leon was held in pretrial detention while awaiting trial. A jail guard claims that he was offered a bribe to let Collazo escape. Collazo was infracted, found guilty and sentenced to segregation and loss of privileges. He sought a writ of habeas corpus by arguing the well established law that pretrial detainees may not be punished while awaiting trial. The district court agreed and granted the writ. The appeals court has vacated and remanded.

In Bell v. Wolfish, 441 US 520, 99 S.Ct. 1861 (1979) the supreme court held that pretrial detainees may not be punished prior to an adjudication of guilt by a court. To do so violates due process. In this case the BOP argued that it was "disciplining" Collazo while he argued he was being "punished." The court in this case said these were semantic terms and there was no difference between ...

Ohio Prison Doctor Imprisoned

Harry Schutte was the medical director at the Marion Correctional Institution in Marion, OH when his license to practice medicine was suspended after he was arrested and convicted for forging prescriptions. Schutte, who was addicted to the drug Stadol and synthetic morphine, did not notify prison officials of his license suspension and he continued to practice medicine at the prison and gave them false credentials indicating he had a valid license.

The Ohio State Medical Board revoked Schutte's license permanently based on his felony convictions for forging prescriptions and practicing medicine while his license was suspended. The board stated "His continued practice of osteopathic medicine and surgery after his certificate was suspended, in blatant disregard for the board's regulatory authority, is appalling." Schutte is serving a ten year prison sentence. No mention was made of the treatment he provided to the Ohio prisoners who relied on him for care.

Columbus Dispatch, October 15, 1995.

Ohio Mental Health Decree Entered

A far reaching consent decree governing the delivery of mental health care to Ohio prisoners was entered on 10 July 1995. The consent decree resulted from a §1983 suit filed in 1993 and certified as a class action on June 7, 1995. The prisoner plaintiffs were represented by Robert B. Newman and Alphonse A. Gerhardstein, both Cincinnati attorneys.

The consent decree covers all adult male and female prisoners in the state of Ohio who are incarcerated under the control of the Ohio Department of Rehabilitation and Correction (DRC). The stated objective of the consent decree is to provide "for a comprehensive system of constitutionally mandated mental health care" for Ohio prisoners. Any litigators who are involved with or contemplating an action to obtain "constitutionally mandated" mental health care within a state prison system may find a review of this consent decree to provide some useful information.

The decree mandates that mental health services "shall be provided to inmates in the least restrictive available environment and by the least intrusive measures available..." It calls for the DRC to provide mental health services "within the framework of a community health model," which among other things mandates that prisoners "with serious mental illness ...

Jail Detainee Entitled to Law Library Access

A district court in Texas has held that jail prisoners have a right to law library access in order to defend against lawsuits in which they are the defendant, the court also held that a "bookmobile" system of allowing prisoners to check out specifically requested law books on a periodic basis is constitutionally impermissible. Henry Marange was held in the Orange County, Texas, jail on charges of vehicular manslaughter. While awaiting trial for criminal disposition of those charges the victims' family sued him. The victims' survivors obtained a default judgment of more than $12 million against Marange. After being served with the suit Marange asked jail staff how to go about obtaining counsel to represent him, he was told counsel was not available in a civil action. Marange contacted the court clerk for assistance and received no reply. Marange then requested law books. The jail had no trained law librarian but a guard who would bring prisoners specifically requested books via a "bookmobile" if the book was available. Marange made numerous requests for books on civil lawsuits and procedure, to no avail. All told, Marange received only one book, a day after default judgment was entered against him.

After arriving ...

South Korean Political Prisoners Protest

In early August, 1995, hundreds of political prisoners began a hunger strike to demand their freedom and the end of national security laws that prohibit contact with people in North Korea. The government denied the strike was taking place and stated that anyone taking part would be denied release because amnesty was only for those who "showed good behavior." Many of the prisoners on strike have been held in prison for over 30 years, solely for being communists or socialists.

On August 15, 1995, the South Korean government granted amnesty and freed 1,780 prisoners, many of whom were political prisoners. Over 440 political prisoners remain behind bars. No change has been made with regard to harsh laws that punish any expression of sympathy or support for North Korea.

Workers World

Sexual Harassment Violates Eighth Amendment

A federal district court in the District of Columbia (DC) granted extensive injunctive and declaratory relief for a class of women prisoners who filed suit challenging their conditions of confinement in DC prison facilities. The rights of women prisoners were also violated under Title IX when they were denied access to educational programs provided to men. The ruling is significant for several reasons. This is the first time a court has held that sexual harassment violates the eighth amendment and it is the first published case to apply the dictates of Farmer v. Brennen in fashioning injunctive relief in a class action suit. The court's ruling came after a three week trial. The suit covers three facilities housing women prisoners and includes the jail. The claims raised were that women prisoners are subjected to sexual harassment, receive unequal opportunities to participate in prison programs compared to similarly situated male prisoners; obstetrical and gynecological care provided is inadequate; and the general conditions of confinement at the three facilities violate the eighth amendment. In short, almost everything that could be wrong with a women's prison was. The lengthy ruling, by Judge June Green, will be helpful for women prisoners as ...

PA Prison Investigated for Corruption; Biggest Shake Down Ever

In September, 1995, several prisoners from the 3,490 man Graterford state prison testified before the Pennsylvania senate judiciary committee about corruption at the state prison. The prisoners testified that prison officials accepted bribes typically between $100 and $300 to expunge prisoners' record of infractions. The testifying prisoners, Jonathan Brown, Jerry Logan and Frank Hannon, testified about corruption on the part of specific Graterford employees, including those who smuggled drugs and exchanged favors for sex. They estimated that at least 20% of the 1,100 Graterford staff were involved in illegal activities.

Illegal drugs are rampant at the prison. Since 1989 at least 13 prison guards, including three in 1995, have been charged with drug smuggling. In the same period 11 Graterford prisoners have died of drug overdoses. All of the testifying prisoners said they had been threatened and harassed for testifying. Brown testified that guards had told him they would kill him if he testified. Senator Michael O'Pake said "The picture they painted was one of a cesspool of corruption." Pennsylvania DOC officials had no comment on the hearings.

The FBI has announced it is investigating the allegations of drug smuggling at Graterford. On October 24, 1995, 650 ...

TRO Granted in Alaska Sex Offender Registration

Since 1990, when Washington state passed the Community Protection Act (CPA), many states have followed suit and copied its provisions. The Washington CPA is one of the most draconian laws of its type in the country concerning the registration and civil commitment of sex offenders. Ironically, it has withstood repeated attack in Washington state courts, while federal courts in other states have struck down similar laws shortly after they were passed. Over the years PLN has reported on the legislative developments as well as the legal rulings on these issues.

In 1994 the Alaska legislature passed House Bill 69, codified as AS 01.10.070, effective on August 10, 1994, the law required all convicted sex offenders to register with police and allowed for the public dissemination of that information. Two sex offenders, convicted before 1994, filed suit in federal court claiming that the law violated several of their constitutional rights, including their fourth amendment, privacy and ex post facto rights. They sought a Temporary Restraining Order (TRO) to prevent implementation of the law pending an outcome of the litigation. The district court granted the TRO with regards to the public dissemination requirements of the law. In its ruling the ...

No Change in Michigan Consent Decrees

For almost 20 years Michigan state prisoners have been embroiled in class action prison litigation designed to ensure constitutional conditions within the Michigan prison system. Despite entry of consent decrees, the Michigan DOC has constantly sought to terminate their legal obligations imposed under the decrees. In twin rulings on motions to modify the contents of those decrees in Hadix v. Johnson and Glover v. Johnson district judge Feikens denied modification of the decrees.

While reported separately both rulings contain verbatim language outlining the lengthy history of these cases and their seemingly endless nature, along with comments on prison reform litigation in general. Of course, the court did not state that if the DOC simply complied with obligations it had agreed to meet instead of evading them by constant litigation the matter would be resolved.

In Hadix the issues agreed to by the parties included increasing out of cell activity by prisoners at the central prison complex in Jackson, MI. This includes access to general and law libraries, visiting, education, jobs, etc., for no less than seven hours a day on weekdays and five hours a day on weekends. In Rufo v. Inmates of the Suffolk County Jail, 502 US 367 ...

Denying Witnesses in Disciplinary Hearings Illegal

A federal district court in Massachusetts has held that a prison policy denying witnesses from the prison's general population to segregated prisoners' disciplinary hearings was unconstitutional. Brendan McGuinness is a Massachusetts state prisoner who was infracted for allegedly getting into a fight with a guard. At the disciplinary hearing McGuinness requested that a prisoner who witnessed the incident be called to testify on his behalf at the hearing. The policy at MCI Cedar junction was to automatically deny all requests for witnesses from the prison's general population. McGuinness filed suit contending that this policy violated his constitutional rights. The district court held a bench trial and issued a ruling of declaratory judgment.

"It is the ruling of this court that, properly interpreted, Kenney v. Commissioner of Corrections, 393 Mass. 28, 35, 468 N.E.2d 616 (1984), stands for the proposition that witnesses cannot be denied in a disciplinary hearing simply based upon the location of the individual within the prison. Abrazinski v. DuBois, 876 F. Supp. 313, 323 (D Mass 1995)(stating that the Kenney court 'found that isolation in a segregation unit alone, even if legal, is not sufficient to support a denial of witnesses);... There ...

Florida Repeal of Earned Time Law Upheld

In 1988 the Florida state legislature enacted Fla.Stat. § 944.277 (1988) which extended the amount of gain-time awarded to prisoners. This was one of several statutes enacted by the Florida legislature in order to maintain the Florida prison population within the limits imposed by a series of federal court orders. In 1992 the Florida attorney general's office issued an opinion interpreting 1992 legislative changes to the statute which made prisoners convicted of murder or attempted murder ineligible for provisional credits previously earned.

Calvin Herring, a prisoner serving time for second degree murder, was stripped of 1,540 days of provisional earned time pursuant to the 1992 change to § 944.277. He filed a petition for habeas corpus claiming that the retroactive application of the statute which stripped him of good time he had already earned violated the ex post facto provisions of the constitution. The district court disagreed and denied the writ. In its ruling the court gave an extensive history of various Florida good time statutes and their legislative background. This case is one of limited application applying only to those Florida prisoners retroactively deemed inapplicable for receiving additional earned time credits.

The eleventh circuit has already ...

Charging for Medication May Violate Eighth Amendment

A federal district court in Indiana has held that requiring prisoners to pay for medication when they are able to does not violate the eighth amendment. However, prison officials' refusal to provide over the counter medication to indigent prisoners with serious medical problems violates the eighth amendment. As more and more prisons attempt to charge prisoners for medical care this issue will be litigated as this area of law is new and developing. On May 17, 1993, the commissioner of the Indiana DOC (IDOC) enacted a policy under which prisoners would not be allowed to use sick call as a means by which to obtain over the counter (OTC) medications. Instead, such medications would be sold on the prison commissary and sold to prisoners at cost. The policy states that the DOC will provide OTC drugs needed to treat prisoners with serious medical conditions.

This case involves Lester Martin, an Indiana state prisoner with a history of painful ulcers. After going on sick call and requesting medication for his ulcers he was told that even though he was indigent he would have to purchase his ulcer medication off the commissary. A prison doctor stated Martin should receive the medication as ...

Random Urinalysis Okay

In the July, 1994 issue of PLN we reported Lucero v. Gunter, 17 F.3d 1347 (10th Cir. 1994) where the court of appeals reversed dismissal of a Colorado state prisoner's suit alleging a fourth amendment violation where he was subjected to a harassing urinalysis test. The court had held that while random UA's comport with the fourth amendment's requirement that searches be reasonable, if Lucero could show that the tests were not administered in a random manner, then a fourth amendment violation could be established. On remand the lower court held that the UA in question was indeed "random." Lucero, a PLN reader, appealed the dismissal again and the appeals court affirmed.

This case was determined due to the factual nature of the allegations. Namely, were UAs conducted in a random manner. Finding that they were, summary judgment was properly entered for the defendants. Prisoners should be aware that non random UAs may well violate the fourth amendment. "Courts which have addressed this issue have recognized that although random urine testing of inmates does not violate the Fourth Amendment, see, e.g., Lucero, 17 F.3d at 1350, the procedures for selecting inmates must be truly ...

NJ Prisoners Have Liberty Interest in Staying in Population

The court of appeals for the third circuit has held that New Jersey state prisoners have a due process liberty interest, enforceable in federal court under § 1983, to remain in general population. David Sheehan is a PLN reader at the New Jersey state prison in Trenton. While housed in the prison's general population he was ordered to move to a different cell, he refused, was infracted and placed in segregation. The disciplinary charges were later dismissed but Sheehan was not released to general population. Instead he spent nearly a month in segregation allegedly because there was insufficient room for him in population. Sheehan filed suit claiming that the initial decision to transfer him to another housing unit was in retaliation because of his choice to remain unemployed within the prison while he worked on litigation. The district court dismissed the suit holding that Sheehan had failed to show evidence of retaliation and that he was properly retained in close custody.

The court of appeals for the third circuit affirmed in part, vacated in part and remanded for further proceedings. The court held that New Jersey state "gave Sheehan a constitutionally protected liberty interest in being returned to general population ...

RFRA TRO Granted

A federal district court in Arizona granted a Temporary Restraining Order (TRO) to an Arizona state prisoner who filed suit seeking relief for violation of his religious rights to a Kosher diet, to long hair, a colored head covering and to maintain a vow of poverty. Paul Luckette is an Arizona state prisoner who is an "ambassador/priest" of the Freedom Church of Revelation. Luckette filed suit claiming prison officials burdened his right to free exercise of religion and were punishing him for his religious practices.

Luckette sought a TRO which would grant him the relief sought pending the outcome of the litigation. The court granted the motion. In doing so the court gave an ample discussion of the Religious Freedom Restoration Act (RFRA), the legal effect it has had on religious free exercise claims and the applicable standards in granting TROs. The court discussed the RFRA's legislative history and its application to prisoners.

The court did not grant the TRO with regards to Luckette's claim that he must maintain a vow of poverty but it was granted with regards to the request for long hair and beard, a colored head garment and a kosher diet. The court ...

Jury Demand Must Be Timely

The court of appeals for the eleventh circuit, in a case of first impression for that circuit, held that the right to a jury trial is fundamental and reversed a bench trial ruling against a prisoner holding he should have received a jury trial. The case involves Robert Burns, a federal prisoner, who filed suit against prison officials for constitutional violations and the United States for tort violations. At the time Burns filed his suit he did not include a demand for jury trial in the complaint. After the defendants responded to the initial complaint Burns filed two amended complaints which added the Federal Tort Claims Act (FTCA) claims and the jury demand. The court set the matter for a bench trial, which Burns opposed, claiming he was entitled to a jury trial, and the court ruled in the defendant's favor. Burns appealed.

The court of appeals began by noting that interpreting the Federal Rules of Civil Procedure (FRCP) presents a question of law subject to de novo review. "We review the denial of a jury trial with the most exacting review." Parties to civil litigation have a right to a jury trial under the seventh amendment of the ...

Court Access May Require Counsel

The court of appeals for the ninth circuit has affirmed a lower court ruling holding that the right of court access requires either access to law libraries or the assistance of counsel only through the pleadings stage of civil rights complaints or habeas corpus petitions. The case arose from a suit filed by mental patients in the Idaho State Hospital South (SHS) claiming that the hospital violated their right of access to the courts by providing neither counsel nor law library access to assist in legal matters. The parties entered into a partial stipulated settlement where SHS agreed to hire a public defender to represent patients in habeas proceedings but that no payment would be provided to the public defender beyond the initial preparation of civil rights complaints. The district court held that the duty to provide counsel or law library access in habeas and civil rights cases ceases when the petition is filed in court. The court of appeals affirmed.

While this case involves mental patients the principles enunciated apply with equal force to prisoners and other detainees. In fact, the majority of the cases cited by the court involve prisoner court access cases. The court notes that patients ...

Contract Physicians Entitled to Qualified Immunity

The court of appeals for the seventh circuit has held that physicians hired by a prison to provide medical care are entitled to qualified immunity when sued by prisoners. As more and more prison systems attempt to cut medical care costs by contracting the care out, prisoner suits against the contracted medical care providers are likely to increase. This case involves Derrick Williams an Illinois state prisoner who claimed he was given inappropriate care for a bone infection in his leg. The prison doctors he sued, claiming they were deliberately indifferent to his serious medical needs thus violating his eighth amendment rights, were employees of a company called Correctional Medical Systems (CMS). The district court granted the defendants summary judgment, holding they were entitled to qualified immunity from suit. The district court held that the physicians were entitled to qualified immunity from liability for repeated acts of medical malpractice.

The court of appeals for the seventh circuit affirmed dismissal. On appeal Williams claimed that the defendant doctors were not entitled to raise the affirmative defense of qualified immunity because they were not government officials. The appeals court rejected this argument. "In cases involving 'a private party acting under government contract ...

Texas Detainee Wins Damages for Ad Seg Placement

A federal district court in Texas awarded $700 in compensatory damages to a county jail prisoner placed in administrative segregation without due process and held there for fourteen days. The court also considered the matter of prisoners' right to safety from attack by other prisoners. Benny Nettles was held in ...

HIV/AIDS in Prison and Jail

The Department of Justice has released its latest statistics on the prevalence of HIV/AIDS in prison and jail facilities for 1993. As of that year 21,538 out of the 880,101 prisoners in state and federal prisons, 2.4% of the total, were known to be infected with HIV. 3,765 prisoners, or .4% had AIDS and 2,312 prisoners showed lesser symptoms of infection. The report states that 6,711 local jail detainees were infected with HIV of which 1,888 had AIDS and 1,200 had some symptoms.

The report carries detailed statistical information by gender, state, region and specific county jails with regards to those prisoners infected with AIDS and HIV. New York state with 8,000 infected prisoners, 12.4% of the total prison population, was the highest. It was followed by Florida with 1,780 or 3.4% of its population; Texas with 1,212 or 1.7%; California with 1,048 or .9%; Connecticut with 886 or 6.6% and New Jersey with 881 or 3.7%. All told nine states had more than 500 prisoners known to be infected. Washington state reported 63 infected prisoners.

The report also notes which states ...

Prisoners Entitled to Rely on Marshalls for Service

The court of appeals for the sev enth circuit has extended prior rulings and held that state prisoners are entitled to rely on the Marshalls service to serve their lawsuits on prison officials. The Marshall's failure to properly serve prison officials is "good cause" to avoid dismissal under Fed ...

News in Brief

Venezuela: On September 22, 1995, police entered the Catia prison in Caracas to search for weapons and drugs when prisoners shot at them. In a five hour riot four prisoners were killed and 26 people injured, including a guard and a policeman. Hundreds of soldiers stormed the prison and regained control later that day. The prison was designed for 700 prisoners but houses 2,123.

WA: Kenneth Peterson, a Washington State Reformatory prisoner escaped from a Monroe hospital he had been taken to for treatment of a heart attack. Peterson was under a guard's supervision in a private room when he simply walked away in hospital pajamas on October 10, 1995. He was caught a few hours later, hiding in a restaurant dumpster in Monroe a mile from the hospital. Peterson had been serving a sentence of life without parole involving two homicides.

Mexico: On October 25, 1995, more than 1,000 soldiers and police stormed the Puebla state penitentiary to end an 11 day rebellion by prisoners demanding better conditions at the overcrowded prison.

WA: On September 19, 1995, Richard Stewart, a guard at the Snohomish County Jail, was stabbed with a sharpened metal pipe by detainee Kurt ...


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