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Prisoner Education Guide

Prison Legal News: February, 1995

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Volume 6, Number 2

In this issue:

  1. Contract With America = Contract on Prisoners (p 1)
  2. From The Editor (p 2)
  3. FL DOC Industries Fined (p 3)
  4. Immigration Detainees Rebel (p 3)
  5. PA Limits Suits Against Defense Attorneys (p 4)
  6. Visitor Search Held Illegal (p 4)
  7. No Immunity for Visitor Strip Search (p 5)
  8. Brutality Protested (p 6)
  9. AZ Passes Repressive Prison Laws (p 6)
  10. Fear and Loathing in California (p 7)
  11. News in Brief (p 8)
  12. Revolutionary Literature at Half-Price (p 9)
  13. Rikers Island Detainees in Struggle (p 9)
  14. OR Voters Pass New Prison Laws (p 10)
  15. Texas DOC to Ban Tobacco Use (p 10)
  16. Unconstitutional Jail Conditions Don't Need to be Relitigated (p 10)
  17. CT Phone Suit Filed (p 10)
  18. Former TX Parole Board Chairman Sentenced (p 11)
  19. No Interlocutory Appeal From Judgement (p 11)
  20. S.Ct. Revokes Review (p 11)
  21. Speeding Cop Loses Job (p 11)
  22. Settlements and Jury Awards (p 12)
  23. Prisoner Raped by Custodians (p 12)
  24. Exposure to Cold Illegal, Rectal Search Upheld (p 13)
  25. 9th Cir Reverses Dismissal of Publisher Only Rule (p 14)
  26. Guard Sues Over Discrimination Order (p 14)
  27. Prisoners Entitled to Free Legal Mail Postage (p 15)
  28. Damage Awards Can be Used for Restitution (p 15)
  29. NC Consent Decree Modified (p 16)
  30. WA DOC Sanctioned in Grievance Mail Case (p 16)
  31. OK Prisoners Have Disciplinary Hearing Remedy (p 17)
  32. MS Jail Officials Held in Contempt (p 17)
  33. CDC Must Establish Hobby Program (p 18)
  34. Contempt Finding Reversed (p 18)
  35. Tight Handcuffs State Claim (p 19)
  36. No Immunity for Sweat Lodge Denial (p 20)

Contract With America = Contract on Prisoners

In late September, 1994, while running for Congress Republican congressional candidates signed Newt Gingrich's "Contract With America" which included detailed proposals in the form of draft legislation to modify federal criminal law in important respects. It is dubbed the "Taking Back Our Streets Act." While nothing is really new in that most of the proposals have been made in the past, they were usually stripped from legislation that passed. With control of both houses of congress it is very likely that all or some of these proposals will make it into law. Given Clinton's opportunism and own fascist tendencies it is unlikely he will veto any "anti-clime" legislation that makes it to his desk, after all, what moneyed interests are opposed to it?

The bill's provisions on habeas corpus would impose a one year time limit within which to seek federal habeas relief for a state conviction. The limitations period would run from the last of the following: "(1) The time at which state remedies are exhausted. (2) The time at which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, where the ...

From The Editor

From the Editor

by Paul Wright

Welcome to another issue of PLN. In the September issue I asked what readers thought of our News in Brief column and whether we should keep it or eliminate it. About 20 readers responded and all want to keep it, no one voiced any opposition to retaining the column so we'll be keeping it. I'm pleased with this outcome as I kind of like it.

A lot of our readers send us newspaper clippings on prison related developments in their area and we greatly appreciate this, a lot of our stories and news items come from these clippings. If you send us clippings please make sure that the date of publication and the source are noted on it, without the date we have no way of knowing the timeliness of the material and the source is important too. Please keep the clippings coming.

Starting with the next issue we will have a new article submissions box that will run in every issue. Throughout our existence we have sought to encourage our readers to submit articles for the simple reason that it is impractical for Dan and I to write everything in PLN ...

FL DOC Industries Fined

From the Editor
Paul Wright

Welcome to another issue of PLN. In the September issue I asked what readers thought of our News in Brief column and whether we should keep it or eliminate it. About 20 readers responded and all want to keep it, no one voiced any opposition to retaining the column so we'll be keeping it. I'm pleased with this outcome as I kind of like it.

A lot of our readers send us newspaper clippings on prison related developments in their area and we greatly appreciate this, a lot of our stories and news items come from these clippings. If you send us clippings please make sure that the date of publication and the source are noted on it, without the date we have no way of knowing the timeliness of the material and the source is important too. Please keep the clippings coming.

Starting with the next issue we will have a new article submissions box that will run in every issue. Throughout our existence we have sought to encourage our readers to submit articles for the simple reason that it is impractical for Dan and I to write everything in PLN nor ...

Immigration Detainees Rebel

On November 14, 1994, 100 illegal aliens detained at the Federal Corrections Facility in Eloy, AZ, rebelled to protest bad food and onerous prison restrictions. A prison spokesperson said the detainees were "carrying baseball bats when they came into the cafeteria for supper." It took prison officials about two hours to suppress the prisoners and restore "order." There were no reports of injuries or how much property was damaged. In October, 1994, the detainees at Eloy had rebelled over bad food and excessive restrictions on their movements. The detainees are illegal aliens held in a medium security prison for the Immigration and Naturalization Service (INS).

PA Limits Suits Against Defense Attorneys

The malpractice suit against her was "a mere buzzing fly," said Patricia Dugan, a criminal defense lawyer in Philadelphia, PA.   So rather than contact her insurance company and watch her rates rise she asked a friend to handle the case.

Her instincts were correct: the Common Pleas Judge swatted away the suit.  It had been filed by a prisoner for whom Ms. Dugan had brokered a plea of one drug count down from four, but was sued after receiving a stiff sentence that was not agreed to in the plea bargain hearing. In addition to having the suit dismissed, Ms Dugan was awarded attorney fees.  The prisoner Norris Washington, was hit with a $500 sanction for filing a "frivolous lawsuit."

Mr. Washington appealed to the Supreme Court of PA, and now Ms. Dugan has won even bigger - so much so that she says her "conscious is troubled."  Last month the court ruled unanimously that a criminal defendant could not sue his lawyer for malpractice unless his conviction was first set aside on appeal.

There is more.  To sue the lawyer for malpractice a prisoner must show that he was innocent of the crime for which convicted.  Otherwise,  the court reasoned ...

Visitor Search Held Illegal

Lenora Daugherty frequently visited her husband at the Turney Center, a Tennessee state prison. Prior to one of Daughertys visits a prison guard told the warden that he had received information that she was smuggling drugs into the prison. The warden also received two letters stating the same. Based on this information the warden ordered a strip search of Daugherty and a search of her car for drugs before she would be allowed to visit with her husband. Daughertys car was duly searched and she was strip searched and subjected to a visual body cavity search, none of which revealed any contraband. Daugherty filed suit claiming that the search violated her fourth amendment rights to remain free from unreasonable searches and seizures. The district court held that the prison officials were entitled to qualified immunity for their actions and dismissed the suit. That ruling was reversed on appeal at Daugherty v. Campbell, 935 F.2d 780 (6th Cir. 1991).

On remand the case proceeded to jury trial and the district court held that, as a matter of law, prison officials were entitled to qualified immunity on the fourteenth amendment claim and the jury returned a verdict in prison officials favor ...

No Immunity for Visitor Strip Search

Tina Spear regularly visited her boyfriend, Daniel Wade, at the Northpoint Training center, a Kentucky state prison. Upon arriving for a visit on Christmas day in 1990 prison officials told her she would not be allowed to visit Wade unless she submitted to a strip and body cavity search and a search of her clothing, purse and car. She was told that if she did not submit to the searches she would be detained until an arrest warrant was obtained and she would be barred from visiting Wade in the future. Wishing to see Wade on the holiday she consented to the search. A prison nurse conducted the strip search and the body cavity search, which included inserting her fingers into Spears vagina and anus. No contraband was found during any of the searches and Spear was allowed to visit Wade.

Spear filed suit under 42 U.S.A. § 1983 claiming that the search violated her rights to remain free from unreasonable searches and seizures guaranteed by the fourth amendment. She stated that the searches left her feeling embarrassed, humiliated and demeaned. Prison officials responded stating that they had ordered the searches because a confidential informant in the prison had ...

Brutality Protested

On October 10, 1994,  more than 25 protesters marched on the Oak Park Heights state prison in Minnesota The demonstrators entered the prison lobby and demanded to meet with warden Erik Skon, who declined. The march was organized by the Love & Rage Anarchist Federation of Minneapolis to protest the repression of Shannon Bowles. Bowles was placed in segregation after he reported the beating of prisoner Pablo Salazar by prison guards. Salazar was also in segregation as a result of the beating.

After thirty minutes of telling the protesters to leave the Washington county sheriff was summoned at which point the demonstrators left. None were arrested. The demonstrators carried placards calling for the release of Bowles, an end to brutality by guards and a shutdown of the prison control unit. 

Workers World, November 3, 1994.

AZ Passes Repressive Prison Laws

As part of the national trend towards bashing prisoners the 41st session of the Arizona legislature recently passed a number of repressive laws designed to make life harder for prisoners as well as restrict their access to the courts. The laws went into effect on July 1, 1994.

§ 31-201.01 of the Arizona Revised Statutes (ARS) was modified to authorize the Arizona Department of Corrections (ADC) to charge prisoners $5.00 for each visit for medical treatment as well as for prescriptions, medication and prosthetic devices. A similar practice by the Nevada DOC is currently being challenged by ACLU attorneys [See: PLN , July, 1994]. (Nevada and Arizona are both in the ninth circuit.) Exempt from the payment plan are pregnant prisoners, those in mental health units, reception centers, Unit 8 at Florence, juvenile prisoners, prisoners with chronic health problems and the developmentally disabled.

§ 12-302 and §12-300 of the ARS were modified to no longer allow state courts to waive court fees for indigent prisoner litigants. Nothing in the statute prohibits the filing of legal actions if the applicant cant pay the legal fees. But, when the prisoner has funds available the court will have the ADC collect the amount due ...

Fear and Loathing in California

As the campaign of hatred against people in prison reaches a frenzied crescendo in this era of reactionary politics, several draconian measure were passed by California legislators in the 1994 session vying with each other for the title, "Toughest On Crime."

A version of the so-called "Three Strikes" law swiftly passed both houses of the state legislature and was signed into law by Governor Pete Wilson. The law doubles statutory sentences for a second serious felony offense, and mandates a term of 25 years to life for the third. It applies to even non-violent felonies, and has already resulted in life sentences for several people convicted of petty theft. This poorly drafted legislation was analyzed by the Judicial Council of California and found to have a number of critical flaws. The analysis represents the views of thirteen judges from around the state. One of the potential problems singled out by the panel were provisions in the new law involving felonies committed by teenagers. Another major defect is the elimination or reduction of good time work time credits for prisoners convicted of selected crimes. The judges found that this may violate the equal protection clause of the U.S. Constitution.

California ...

News in Brief

TX: On November 23, 1994, Hidalgo County sheriff Brig Marmolejo was sentenced to seven years in federal prison after being convicted of taking more than $151,000 in bribes from convicted drug dealer Homero Beltran Aguirre, who was awaiting trial in the jail between 1991-93, in exchange for giving him special privileges in the jail. Beltran testified that he paid Macznolejo $5,000 a month to have conjugal visits with his wife and girlfriend in the sheriff's office, he would pay an additional $1,000 per visit. He also gave the sheriff dried goat meat, $1,000 watches, a $10,000 sports car for his daughter and a no interest loan to pay for a pavilion at the daughter's wedding on the sheriff's ranch. Marmolejo had been sheriff for 18 years.

WA: Convicted double murder Mitchell Rupe recently had his death sentence reversed by Seattle federal judge Thomas Zilly. In addition to overturning his death sentence the court also found that Rupe, who weighs 409 pounds, was too heavy to hang because of a likelihood that he would be decapitated. The state argued that even if he were decapitated it would be quick and painless. Washington murders ...

Revolutionary Literature at Half-Price

Pathfinder Press prints and sells revolutionary literature on a variety of subjects, including the works of Lenin, Marx, Trotsky, Malcolm X, the American labor movement, Latin America, Africa, and more. As a special program for prisoners, Pathfinder offers all the materials in their catalog at half price plus a flat $2.50 shipping cost. This is quite a savings.

A free catalog and more information is available by writing: Pathfinder Press, Prison Program, 410 West St. New York, NY. 10014.

Rikers Island Detainees in Struggle

Rikers Island is the largest penal colony in the world, holding more than 19,000 prisoners on a 410 acre island. Most of them are New York City pretrial detainees not convicted of any crime. The number of detainees is expected to increase to as high as 25,000 in coming months as Republican mayor Rudolph Guiliani makes good on his campaign promises to "improve the quality of life" in New York City by locking up the homeless, street vendors, panhandlers, etc,

To make good on campaign promises to balance the city budget Guiliani has proposed over $31 million in budget cuts. These two factors have come together to make Rikers Island the focus of the most intense struggle in several years. Among the jail programs to be eliminated as part of the budget cuts are the jail's 900 bed drug treatment program, its 23 person grievance investigation unit, its food industry job training program and will lay off 897 jail guards and 400 civilian workers. The new staffing cuts come on top of previous staffing cuts, and increases in the detainee population, that has required most of the jail's 9,800 guards to work 16 hour double ...

OR Voters Pass New Prison Laws

On November 8, 1994, Oregon voters passed three criminal justice measures that will cost millions to implement. Measure 10 requires a two thirds vote by the legislature before it can change voter approved prison sentences.

Measure 11 imposes mandatory minimum prison sentences on defendants convicted of violent offenses and bars early release. The laws apply to adults and juveniles over the age of 15. The measure is currently projected to require 6,085 new prison beds by 2001 and 3,010 more by 2005. Analysts state that construction costs for the first five year period will be $461 million. Operations costs will steadily increase, from an additional $3.2 million in 1995-96, to $100 million a year by 2001. Oregon currently holds about 6,600 prisoners.

Measure 17 requires prisoners to work 40 hours a week and allows prison workshops to compete with private businesses. These programs will cost an estimated $40.2 million to implement in 1995-97 and $10.9 million for equipment, inventory and construction of work facilities. Kevin Mannix, the Democratic state legislator who sponsored the measures stated "This is just the beginning in pushing back crime in Oregon."


Texas DOC to Ban Tobacco Use

Texas DOC To Ban Tobacco Use

On November 18, 1994, Texas prison officials voted to ban all tobacco use throughout the states criminal justice system. The ban, unanimously approved by the state Board of Criminal Justice, covers all tobacco products and all property owned or leased by the Texas Department of Criminal Justice (TDCJ) and applies to prisoners and employees alike. The TDCJ is the second largest prison system in the country with over 100,000 prisoners and 33,000 employees. The ban is scheduled to go into effect on March 1, 1995.

Asked about the smoking ban, Board member Allan Polunsky said: "Were not operating the Ritz Carlton" and prisoners "will have to abide by the rules, and thats it."

PLN has reported on smoking issues in the past. In its 1993 ruling in Helling v McKinney , the supreme court held that prison officials were liable for exposing non smoking prisoners to Environmental Tobacco Smoke (ETS) or second hand smoke [ PLN , Vol. 4, No. 9]. Prior to that ruling there had been a split in the circuits as to whether exposure to ITS violated the eighth amendment ban on cruel and unusual punishment.

Many jails across the country have ...

Unconstitutional Jail Conditions Don't Need to be Relitigated

Chris Hall was a pretrial detainee in the Little Rock, Arkansas, city jail. He filed suit under 42 U.S.A. § 1983 claiming that jail conditions had violated his constitutional rights. Arrested for shoplifting, Hall spent 40 days in the jail, confined to a windowless cell for 24 hours a day. During much of that time Hall shared a two man cell with three other men, which gave 14.22 square feet of cell space per person. Hall was required to sleep on the floor despite painful injuries and was denied all opportunity for exercise. The district court dismissed the suit finding that Hall had not introduced enough evidence to show how he individually had been affected by the jail conditions. The court of appeals for the eighth circuit reversed and remanded finding that because the jail conditions had already been litigated in another case, and found unconstitutional, the lower court erred by not applying the relevant findings from that case.

At trial, the parties stipulated to the testimony and evidence in Daniels v. Dalton, a case which found the jail conditions to be unconstitutional and the defendants did not appeal. After a bench trial in this case, by another ...

CT Phone Suit Filed

The Connecticut Civil Liberties Union (CCLU) has filed suit against the Connecticut DOC over a phone monitoring system recently implemented by the DOC. Washington v. Meachum, Case No. CV-94-0534616S was certified as a state wide class action suit on May 3, 1994, in the state Supenor Court in Hartford.

The lawsuit claims that Connecticut state regulations §18-81-28 through 18-81-51, violate the Connecticut wiretapping statute, the Connecticut eavesdropping statute, the AIDS testing and Medical Information statute and the United States and Connecticut constitutions. The suit claims that the CT lacks the authority to adopt the phone and mail regulations in question. The regulations in question limit non-monitored attorney calls to less than 10 minutes such calls are also difficult for prisoners to place in the first place.

The regulations also allow the random opening at prisoner's outgoing mail. The suit claims this practice violates the federal and CT constitutions. [Editors Note: In Procunier V. Martinez the US Supreme court upheld prison rules allowing the opening and censorship of prisoners' outgoing mail.] The lawsuit seek damages, declaratory and injunctive relief.  A trial was held in July, 1994. We will report the verdict.

Former TX Parole Board Chairman Sentenced

Former Texas slate parole board chairman, James Granberry,  pleaded guilty in April of 1994 to charges that he committed perjury during an investigation of independent "parole consultants."

After Granberry resigned from the Board of Pardons and Parole in May 1991, he set himself up as a freelance parole consultant. Cranberry, and other former Texas parole hoard members, made a practice of marketing their influence as former Parole board members, collecting "consulting fees" from prisoners desperate for freedom. This practice has since been outlawed by the state but only after public furor focused attention on the issue when paroled murderer, Kenneth McDuff, abducted and killed a pregnant convenience store clerk. When McDuff was arrested he had a business card in his wallet from the parole consultant another former parole board member) who assisted in his successful parole bid. After the McDuff case an investigation was launched into the practice of former parole board members collecting fees to act as parole consultants.

Granberry was charged with perjury, accused of lying to a federal magistrate about the extent of the consulting business he ran. Federal prosecutors said Granberry served as a consultant for prisoners and their families on 22 cases and was still ...

No Interlocutory Appeal From Judgement

In the July, 1994, issue of PLN we reported Littlewind v. Rayl, 839 F.Supp. 1369 (ND 1994). The case involved a North Dakota state prisoner who, after assaulting a guard, was put into four point restraints, naked, for seven hours, 23 hours in three point restraints and then spent seven days in leg irons and handcuffs. During this time he was denied clothing and a toothbrush for six days, a blanket for two. A jury found in favor of prison officials but the district court vacated the ruling and entered judgment as a matter of law in favor of Littlewind. The ruling held the defendant prison officials liable for violating Littlewinds eighth amendment rights and ordered a new trial on the sole issue of damages. The defendants appealed and the court of appeals for the eighth circuit remanded the case holding it lacked appellate jurisdiction.

Appeals courts can only hear appeals from "final judgments." An exception to this rule is when a public official appeals the denial of qualified immunity at the pretrial stage. The defendants sought to style their appeal as one appealing the denial of qualified immunity. The court held that the defendants failure to file an ...

S.Ct. Revokes Review

In the November, 1994, issue of PLN we reported that the Supreme Court had granted review in Rowe v. DeBruyn  1,71. 94-249. The case involved an Indiana state prisoner who was infracted and punished for defending himself against an attempted rape attack. The question the supreme court initially agreed to decide was whether the prisoner had a right protected under the due process clause to defend himself. On November 17, 1994, the supreme court announced that it had reversed the grant of certiori and would not hear the case after all. Given the fact that the supreme court docket is at its lowest in more than 40 years it is unclear why certiori was revoked. The lower court decision is reported at 17 F . 3d 1047 (7th Cir.1994), and was reported in the July, 1994, issue of PLN.

Speeding Cop Loses Job

A New York police officer, Steven Schwartz, liked life in the fast lane. His personalized license plate read "MY T QUICK". Schwartz was also "MY T DEADLY". While responding to a police call m 1987, Schwartz struck and killed a pedestrian in a crosswalk when he ran a red light at more than 45 mph. Thirteen months later he was fined $500 for reckless driving after weaving through traffic at more than 100 mph in his own car. Nine days later he struck and killed another pedestrian white driving to work. Witnesses said that he was speeding and that afterward he showed his badge to bystanders and said, "You didn't see anything."

He was never charged in the deaths and no departmental charges were brought against him. The department, however, did send undercover officers to watch him. One day they saw him run three red lights in his own car. On another day he was observed running two red lights. In April 1989, formal departmental charges were brought against him, and he was docked 10 vacation days. In September 199û, he was stopped on the Staten Island Expressway for going over lû0 mph. Two days later he was stopped ...

Settlements and Jury Awards

NJ: Former Bayside State prison, NJ, doctor John Napoleon, will have to pay six prisoners $80,000 to settle an eighth amendment medical neglect suit against him. The prisoner plaintiffs, all incarcerated in NJ state or county prisons, claimed that Napoleon deliberately failed to treat them after being notified of ...

Prisoner Raped by Custodians

A federal woman prisoner being transported from the Danbury prison in Connecticut to one in Texas was sexually assaulted by the owner of Fugitive One Transport, Arnold Faulhaber, and a company guard, Joseph Jackson. Both suspects were arrested on October 8, 1994, and charged by Monmouth County, New Jersey , prosecutors with sexually assaulting someone in their custody and over whom they had supervisory power. Both were released on $50,000 bond.

The victim states that she was picked up in Danbury and driven to Faulhaber's office. Faulhahcr asked her to go to Atlantic City with him and party rather than spend the night in the Ocean County Jail. She refused and was taken to the jail by Jackson. En route to the jail, Jackson allegedly drove to a remote area and raped her. Jackson threatened to charge her with attempted escape if she reported the rape to law enforcement officials.

On September 24, 1994, Faulhaber took the victim to his Ocean 1 ownership home and raped her. Jackson raped her yet again before she was finally flown to Texas to face charges. Upon being incarcerated in Dallas she told her family about the rapes and they in turn reported ...

Exposure to Cold Illegal, Rectal Search Upheld

Ronald Del Raine is a long time PLN supporter and an even longer term prisoner at the US Penitentiary at Marion, Illinois. In 1984 Del Raine filed suit claiming that assorted guards and officials at Marion had violated his eighth amendment rights by repeatedly exposing him to cold weather by not repairing a broken window in his cell; by subjecting him to a digital rectal probe and that he was deprived of personal property without due process of law when his written materials were destroyed by guards. In the ten year course of this litigation the case has been up and down the courts several times and has yet to get to trial. This published ruling is the latest installment, resulting from the lower courts dismissal of the entire suit. The court of appeals for the seventh circuit affirmed in part, reversed in part and remanded in a lengthy ruling.

Before addressing the merits of the case the court gave an extensive discussion on pro se prisoner litigants right to have their papers served upon prison employees by the marshals service. In this case the defendants alleged that Del Raine had not properly served them with the complaint within 120 ...

9th Cir Reverses Dismissal of Publisher Only Rule

PLN rarely reports on unpublished decisions because they cannot be cited as binding precedent. But in some cases prisoner litigants benefit from knowing cases that have been decided by the courts in their relevant circuits as well as new avenues of attack on issues that have been lost in the past. In Bell v. Wolfish, 441 US 520 (1979) the supreme court upheld a prison regulation which mandated that hardcover books could be sent only by the publisher, this has become known as the "publisher only" rule.

Since that ruling numerous prison systems have enacted rules which mandate that even soft cover books and magazines must come from the publisher. This practice has been upheld by several courts. See: Ward v Washtenaw County Sheriffs Dept., 881 F.2d 325 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306 (3rd Cir.1985); Kines v. Day, 754 F.2d 28 (1st Cir. 1980) and Cotton v. Lockhart, 620 F.2d 670 (8th Cir. 1980). However, the ninth circuit has yet to decide the issue. The closest they have come is Johnson v. Moore, 926 F.2d 921 (9th Cir. 1991) in which it court reversed the dismissal of a challenge to ...

Guard Sues Over Discrimination Order

This case involves a black California prison guard, Ali Moyo, who sued his superiors in the California Department of Corrections (CDC) after they fired him for protesting against and refusing to cooperate with the defendants practice of allowing white prisoners, but not black prisoners, to shower after their work shifts. He filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.A. § 2000e. The district court dismissed the suit under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. The court of appeals for the ninth circuit reversed and remanded. In its ruling the appeals court gave a useful analysis of how Title Vll applies to prisoners as well as their captors in prison. It also discusses prisoner labor laws.

The appeals court notes that employees state a cause of action under Title VII when they show they engaged in a statutorily protected activity, "i.e. that he protested or otherwise opposed unlawful employment discrimination directed against employees protected by Title VII," were subsequently disciplined or fired and a causal link exists between the protected activity and the adverse action. The court notes that it ...

Prisoners Entitled to Free Legal Mail Postage

Several prisoners at the Iowa Mens Reformatory (IMP) f led suit under 42 U.S.A. § 1983 seeking injunctive relief from the prisons policy of denying indigent prisoners in administrative segregation any free legal or personal postage. Prisoners in ad seg are not allowed to earn money from prison jobs nor are they provided any allowance for stamps or other expenses, thus, they have no source of funds by which to buy postage. These prisoners are allowed to go into debt for legal mail postage but once their balance is in the red the IMP imposed a 50 cent a month "service charge." Once the negative balance reached $7.50 the prisoner had to show "exceptional need" to prison officials before any further funds would be advanced for legal mail. Prison officials had unfettered discretion to determine when "exceptional need" existed. No free postage was allowed for personal mail.

After a trial, the lower court held that the policy as applied to legal mail was unconstitutional and issued an order forbidding it but, it upheld the ban as applied to personal mail. The court enjoined the practice of imposing a 50 cent a month service charge on negative balances due ...

Damage Awards Can be Used for Restitution

Under Iowa state law all felons must pay victim restitution. The DOC sets up a restitution plan whereby up to half of a prisoners earnings can be confiscated and sent to the county court clerk who disburses the funds to the victims. Four Iowa state prisoners sued prison officials for constitutional violations and won, see: Quinn v. Nix, 983 F.2d 115 (8th Cir. 1993). The state paid the damage awards to their attorney and when the money was deposited on their prison accounts prison officials seized all but $50 of it from each prisoner to satisfy their obligations under the victim restitution act.

The prisoners applied to the district court for relief under Fed.R.Civ.P. 69(a). The district court held that the victim restitution act was preempted by § 1983. In Hankins v. Finnel,964 F.2d 853 (8th Cir. 1992), the appeals court held that the Missouri Incarceration Reimbursement Act was unconstitutional when prison officials sought to confiscate the money damages awarded to prisoners who successfully sued their captors for constitutional violations. It held that the statute was contrary to the goals of § 1983 which seek to ensure that federal constitutional injuries by state officials are ...

NC Consent Decree Modified

In 1985 North Carolina state prisoners filed a class action suit seeking relief from unconstitutional conditions at 49 of the states 97 prison facilities. During trial the parties settled and entered into a consent decree which limited overcrowding to 140% of capacity in medium security facilities and 120% of capacity in minimum security facilities The consent decree also covered numerous other areas of prison conditions and provided for continued court jurisdiction of the case. After signing the agreement North Carolinas prison population began to dramatically increase, far more than initially projected when the decree was signed. Prison officials asked the court to modify the decree to allow still more overcrowding than that allowed by the decree The district court granted their motion to modify the decree in part and denied it in part.

The court gave a lengthy history of the case and the rise of prison admissions in North Carolina and the relevant case law by which consent decrees may be modified at the party s request. The court denied the state permission to increase the prisoners housed in older dormitories to 130% of their capacity. The court granted the defendants motion to house prisoners in new dorms at ...

WA DOC Sanctioned in Grievance Mail Case

In the September, 1994, issue of PLN we reported OKeefe v. Murphy, the unpublished case by US District Judge Alan McDonald which held that prisoners mail to and from different government agencies was entitled to confidential treatment, i.e. being opened only in the prisoner recipient s presence without being read by prison officials. The state filed a motion for reconsideration. On August 8, 1994, Judge McDonald denied the motion and granted sanctions against the DOC for not complying with his earlier order. This time the order has been published.

Timothy OKeefe, a prisoner at the Washington State Penitentiary(WSP) had filed suit seeking declaratory and injunctive relief because WSP officials refused to treat as "legal mail" letters he wanted to send to different government officials. The court granted summary judgment in OKeefes favor holding that mail to government officials is protected by the first amendments right to petition the government for the redress of grievances. The court held that allowing prison officials to read such mail would result in a chilling of prisoners right to petition government officials. In its earlier order the court held that DOP Policy 590.500 was unconstitutional and ordered prison officials not to open ...

OK Prisoners Have Disciplinary Hearing Remedy

In the May, 1994, issue of PLN we reported Waldon v. Evans, 861 P.2d 311 (Okl. Cr. 1993) which held that Oklahoma state courts could hear prisoners challenges claiming due process violations in prison disciplinary hearings. In a new ruling, the Oklahoma Court of Criminal Appeals has further clarified both the right and the scope of review available for such claims. This ruling applies only to Oklahoma state prisoners.

Two Oklahoma state prisoners sought habeas relief in federal court claiming that they had been denied their right to due process in prison disciplinary hearings that had resulted in the loss of good time credits. The federal court certified a "Question of Law" and sent it to the state court for an interpretation of the applicable state laws and statutes before it issued its ruling. This is the state courts reply to that request. The state court made no determination as to whether the prisoners were entitled to relief, it merely outlines the procedures available to them to assert their due process rights. The federal court wanted to know if their was an adequate state remedy for Oklahoma prisoners wrongfully deprived of their good time credits. The state court said ...

MS Jail Officials Held in Contempt

In l978 prisoners at the Madison County jail in Mississippi filed a class action suit challenging conditions at the jail. Prior to going to trial the parties negotiated a consent decree incorporating a wide range of issues, everything from racial discrimination to the types of combs that prisoners at the jail would be given. For the next decade the district court monitored the case and the plaintiffs filed three motions for contempt of court claiming the defendants had failed to abide by the terms of the decree. Each time the court denied the contempt motion after jail officials complied with the decree. A new jail was opened and the jail officials essentially abandoned the decree. The plaintiffs initiated contempt proceedings and the defendant jail officials motioned the court pursuant to Fed.R.Civ.P. 60(b) to modify the decree. The district court denied the defendants motion and held them in contempt, finding that since the new jail opened they had "ceased making any attempt to abide by the conditions set out in the Final Judgment..."

The defendants appealed and the court of appeals for the fifth circuit affirmed, upholding both the contempt finding and the refusal to vacate the ...

CDC Must Establish Hobby Program

Lassen County Superior Court Judge J. Harvey issued a writ of habeas corpus on August 16, 1994, which ordered the California Department of Corrections (CDC) to establish a hobby program and store materials at the California Correctional Center (CCC) at Susanville. Steve Yakle, a CCC prisoner, was transferred to CCC from Folsom, where he participated in a hobby program. Upon arrival at CCC he was informed that the prison had no hobby program nor would it store the hobby materials he had purchased at Folsom. Yale filed a writ of habeas corpus contending that California prison rules required CCC to have a hobby craft program. Judge Harvey agreed.

Under Section 3100 of Penal Code section 5058, CDC wardens are required to establish prisoner handicraft programs. The court held that this statute is a mandatory obligation which leaves the CDC no discretion as to whether they will abide by it or not. The court rejected the CDC's argument that they have the authority to authorize the abolition of the required handicraft programs. The court notes that to do so, the CDC needs to comply with the methods outlined in the state Administrative Procedures Act (APA). "The requirements of the Administrative ...

Contempt Finding Reversed

In 1980 prisoners at the Iowa State Penitentiary (ISP) entered into a consent decree, Dee v. Brewer, with prison officials which prohibited guards from searching or removing prisoners legal papers from their cells when the prisoner was not present, unless exigent circumstances existed. In 1993 ISP officials received a tip claiming that Ronald Mahers possessed drugs. A search was conducted of Mahers unit; his cell and that of 11 other prisoners were searched. During the searches Maher and the other prisoners were asked to sign a waiver of their right, under the consent decree, to be present while their legal materials were searched. They refused to do so. Maher filed a grievance claiming that the search outside his presence of his legal materials violated the decree. The grievance response agreed that it did but afforded him no remedy. The 12 prisoners then filed suit under 42 U.S.A. § 1983 and for contempt under the Dee decree. The court dismissed the § 1983 claim but the contempt action proceeded to trial.

The court found that ISP warden Hedgepeth had allowed his staff to violate the consent decree and failed to train them to comply with the decrees requirements. The court fined ...

Tight Handcuffs State Claim

Ronald Davidson is a New York state prisoner. While being transported to the segregation unit of another prison he was handcuffed and shackled. The devices were so tight that they cut into Davidson s flesh and reduced circulation into his hands and feet, causing swelling. As a result his ankle is permanently scarred and his wrists were numb for several months afterward. Davidson filed suit in federal court pursuant to 42 U.S.A. § 1983 claiming that the tight shackling violated his right to be free from cruel and unusual punishment. He also claimed that he was denied medical care to the injuries resulting from the shackling and that this too violated his eighth amendment rights. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(c) as a judgment on the pleadings. The court of appeals for the second circuit reversed and remanded.

The court of appeals gave a brief discussion of the legal standards lower courts must use in reviewing prisoners eighth amendment claims. Hudson v. McMillian, 112 S.Ct. 995 (1992), held that when prison officials are accused of using excessive force the core judicial inquiry, set forth in Whitley v. Albers, 475 US ...

No Immunity for Sweat Lodge Denial

Ralph Thomas is a Nebraska state prisoner. He filed suit under 42 U.S.C. § 1983 claiming that prison officials had violated his right to religious freedom by denying him daily access to the prisons sweat lodge for prayer. He claimed this denial also violated his right to equal protection because members of other faiths were allowed daily access to the prison chapel for prayer. The district court granted the defendants motion for summary judgment. The court of appeals for the eighth circuit reversed and remanded holding there were material issues of fact in dispute precluding summary judgment. The court also held that prison officials would not be entitled to qualified immunity for their actions unless they could show a rational relationship between legitimate penological interests and denial of sweat lodge access.

The appeals court rejected the defendants bald allegation that "security concerns" motivated their decision to prohibit Thomas from praying in the sweat lodge on a daily basis. This was an insufficient basis for the court to conclude that there was any rational relationship between the denial of access and security. The court analyzed the claims under the reasonableness test set forth by the supreme court in Turner v ...


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