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Prisoner Education Guide

Prison Legal News: August, 1995

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Volume 6, Number 8

In this issue:

  1. Supreme Court Guts Due Process for Prisoners (p 1)
  2. Pelican Bay Ruling Issued (p 3)
  3. WA Passes Record Anti-Prisoner/Defendant Legislation (p 9)
  4. IFP Dismissal Reversed (p 13)
  5. Martinez Hearing Reversed (p 14)
  6. INS Deportation Hearings Required Prior to Release (p 14)
  7. Qualified Immunity RA Defense (p 14)
  8. Shackled Litigant Denied Due Process (p 15)
  9. ID Rider Program Creates Liberty Interest (p 15)
  10. 8th Amendment Discussed (p 16)
  11. Outgoing Mail Censorship Illegal (p 17)
  12. Translators Required for Medical Interviews (p 17)
  13. Detainees Entitled to Non-Punitive Conditions (p 17)
  14. No Immunity for Smoke Exposure (p 18)
  15. OR DOC To Ban Smoking (p 19)
  16. Hearing No Substitute for Trial (p 19)
  17. Fear Constitutes Actual Injury (p 20)
  18. From The Editor (p 20)
  19. News in Brief (p 21)
  20. Police, Death and Inquests (p 21)
  21. From Senegal in Struggle (p 23)

Supreme Court Guts Due Process for Prisoners

On June 20, 1995, the supreme court issued its five to four ruling in Sandin v. Conner. The ruling appears to be the most devastating legal setback prisoners have suffered in the Supreme Court since Turner v. Safley was decided in 1987. In doing so the court abandoned, without specifically overruling, more than a decade of cases involving state created due process liberty interests affecting prisoners.

The case originally arose when Demont Conner, a Hawaii state prisoner, was infracted for allegedly cursing at a guard during a strip search. He was infracted and the disciplinary hearing committee refused Conner's request for witnesses claiming they were unavailable due to staff shortages and Conner's transfer to another facility within the prison. Conner was found guilty and sentenced to 30 days segregation. He administratively appealed and nine months later, after he had already served the 30 days segregation imposed, the infraction was expunged as unsupported by the evidence. Conner filed suit in federal court under 42 U.S.C. ' 1983 claiming that his right to procedural due process had been violated.

The district court granted summary judgment in favor of prison officials. The court of appeals reversed and remanded the case ...

Pelican Bay Ruling Issued

One prisoner publication hailed it as "A Moral Victory for Prisoners." The headline in a correctional trade magazine proclaimed "State Wins Pelican Bay Suit." Interpreting the 345-page Madrid v. Gomez opinion is difficult at best, and as shown by the contrasting headlines above, a reader's interpretation can easily be swayed by personal bias. We at PLN have our personal bias, too. When reading Judge Henderson's lengthy commentary and analysis, passages that pluck emotional strings fairly leap off the page. Other parts of the 345-page decision slide by like a coal barge on a lazy river. Sifting through it all to construct a practical legal analysis of the impact this decision will have on prisoner rights and on the future of super-max control unit proliferation is a formidable challenge.

Who won and who lost? The question can not have one answer. The Pelican Bay litigation was multi-faceted, and in order to tally up the score each issue must be examined separately. The main issues litigated were: A) Excessive Force; B) Medical Health Care; C) Mental Health Care; D) Conditions in the SHU (Security Housing Unit); E) Cell Housing Practices; F) Segregation of Prison Gang Affiliates. In each of these ...

WA Passes Record Anti-Prisoner/Defendant Legislation

By Paul Wright

In the March, 1995, issue of PLN I gave a rundown on most of the anti-prisoner and defendant legislation then pending in the legislature. After we had gone to press for that issue Ida Ballasiotes, the rabid chair of the House Acorrections committee (See PLN, March, 1995,) introduced HB 2010 which essentially rolled up a bunch of anti prisoner bills into one big bill. As detailed below, most of the proposed legislation passed but, not surprisingly, all legislation designed to rein in DOC growth and spending either died in conference committee or was vetoed by the governor. For those who still believe in liberals, it's worth noting that nearly all of the below listed legislation passed both houses of the legislature unanimously, there were no token dissenting or protest votes. Here's a rundown on what passed and is now law.

Prisons and Jails:

HB 2010 is the reincarnation of HB 1054. The latter bill was prefiled in the legislature and sought to completely eliminate the Extended Family Visiting (EFV) Program, weights, erotic and violent materials and television from prisons. While TV's, EFVs and weights survived this time, prisoners suffered serious setbacks and we can ...

IFP Dismissal Reversed

District courts reviewing a plaintiff's petition to proceed in forma pauperis (IFP) must first review the complaints and decide whether they are legally or factually frivolous before they can demand partial payment of the filing fees. Bonnie McCaslin, a Nebraska state prisoner, filed nineteen lawsuits simultaneously and requested IFP status so as not to pay the filing fees.

The district court denied McCaslin IFP status based on her prison trust account statement for the past six months. McCaslin contested the amount and submitted her current trust statements. The court required her to pay $53.75 per case as a filing fee. She asked the court to reconsider and accept that amount for all nineteen cases, which the court refused to do. The district court reviewed five of the cases, found them deficient and ordered McCaslin to amend them.

After McCaslin submitted amended complaints as ordered, the district court dismissed the five cases for failing to pay the partial filing fee. The court of appeals for the eighth circuit reversed and remanded.

AWe have expressly stated that >the magistrate or district court judge should determine whether plaintiffs may proceed in forma pauperis in terms of whether the complaint was frivolous ...

Martinez Hearing Reversed

The tenth circuit has approved a process whereby district courts conduct hearings to develop the record and determine whether there is any legal or factual basis to claims brought by pro se prisoner litigants. See: Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). In this ruling the court specifically outlines the district courts' duties and limitations when it conducts such hearings. Scott Janke, a Colorado prisoner, filed suit claiming that his due process rights were violated at a prison disciplinary hearing when he was not allowed to call witnesses or present documentary evidence at his hearing.

After filing the complaint the lower court scheduled a Martinez hearing. At the hearing the defendants called witnesses who testified about the disciplinary hearing in question. Their testimony sharply disagreed with the facts pleaded in Janke's complaint. After the hearing the magistrate recommended that the case be dismissed for failing to state a claim, which the district court did. The court of appeals for the tenth circuit reversed and remanded.

The appeals court held AIt was entirely improper for the magistrate judge to rely on the hearing to resolve pertinent factual disputes. The Martinez hearing is a judicially recognized method of ...

INS Deportation Hearings Required Prior to Release

The Ninth U.S. Circuit Court of Appeals reversed and remanded a lower court decision that denied relief to an alien inmate convicted of an aggravated felony who claimed the Immigration and Naturalization Service (INS) was not taking steps to give him an expedited deportation hearing. The decision in Garcia v. Taylor, 40 F.3d 299 (9th Cir 1994), said that Awhen the government refuses to commence proceedings any earlier than four to six months before the release date, it is a foregone conclusion that the administrative appeals process cannot be completed in a timely fashion.

[For comparison, please see Soler v. Scott, 942 F.2d 597 (9th Cir. 1991 ); Aguirre v. Meese, 930 F. 2d 1292 (7th Cir. 1991); Prieto v. Gluch, 913 F. 2d 1159 (6th Cir. 1990); Orozco v. US INS, 911 F. 2d 539 (11th Cir. 1990); Gonzalez v. INS, 867 F. 2d 1108 (8th Cir. 1989).]

The Court said that it appears that the INS is deliberately ignoring Congress, which has tried to speed up the deportation process through changes in federal law. Requiring deportation hearings to be conducted during an inmate's federal incarceration means that the inmate will not be Aholding over@ in ...

Qualified Immunity RA Defense

The court of appeals for the eighth circuit has held that the affirmative defense of qualified immunity is available to government officials sued under the Rehabilitation Act (RA), 29 U.S.C. '794(a). McKinley Lue is a blind Missouri state prisoner who filed suit claiming he was given inadequate medical care and housing, denied employment and vocational training. Lue filed suit under 42 U.S.C. ' 1983 seeking relief under the eighth amendment and the RA. The district court granted summary judgment to the defendants on the housing conditions claim. The medical claim went to trial where a jury ruled in the defendants' favor. The court denied summary judgment on qualified immunity grounds to the defendants on the RA claims and they appealed.

The court of appeals for the eighth circuit noted that individuals have a private right of action under the RA allowing them to seek money damages and injunctive relief. AWe also conclude qualified immunity is available in Rehabilitation Act actions seeking damages from public officials. The Act does not expressly mention the defense, and neither the Supreme Court nor this circuit has addressed whether there is an implied qualified immunity defense in the Act. Four other ...

Shackled Litigant Denied Due Process

The court of appeals for the second circuit has reaffirmed that trial courts deny pro se litigants a fair trial when litigants are shackled before the Jury and no hearing on the need for restraints is held. Ronald Davidson is a New York state prisoner who sued prison officials for reading his legal mail outside of his presence. The case went to trial and Davidson represented himself. Davidson arrived in court in leg irons, handcuffs, a waist chain and Ablack box@ that prevented him from moving his arms. He requested that the restraints be removed in order for him to move his arms. The trial court refused, stating it was giving the escorting prison guards Acarte blanche@ and would not Asecond guess@ them. Davidson requested an evidentiary hearing on the need for restraints and the court refused.  

The escorting guards told the trial court that Davidson had previously attempted to escape.

Davidson pointed out that he had been acquitted of the charges in a court of law and had sued over the matter and had court orders expunging all mention of the alleged escape attempt from his file. The court ultimately allowed the back and waist chain to be removed ...

ID Rider Program Creates Liberty Interest

The ninth circuit has held that prisoners have a due process liberty interest in accurate and reliable rehabilitation reports. In 1972 Idaho created the ARider Program@ whereby convicted felons were sent to prison to be evaluated for potential release on probation, the sentencing court retained jurisdiction for a 120-180 day period. At the end of the retained jurisdiction period a Jurisdictional Review Committee (JRC) composed of prison officials, send a report and recommendation to the sentencing court with a recommendation to either release the prisoner on probation or cause the prisoner to serve the remainder of the original sentence. Idaho prisoners filed a class action suit claiming that prison officials did not give them an opportunity to meaningfully present their views at the hearings and to prepare for the JRC hearings. They sought declaratory, injunctive and monetary relief.

Prison staff prepare their report and recommendation and allow the prisoner to review it, but not keep a copy. Prisoners with a negative recommendation are immediately placed in segregation. Twenty four hours later the prisoner is brought before the JRC to rebut any information or recommendations. At the hearing the prisoner can call staff and prisoners as witnesses and make a written ...

8th Amendment Discussed

In a lengthy ruling a district court in Iowa gave an extensive discussion of the history of the eighth amendment and numerous cases regarding its application to medical neglect cases. This case is useful not so much for the facts or issues presented in the underlying case but because of the extensive cases cited that provide a valuable starting point for anyone researching eighth amendment medical claims.

Robert Starbeck filed suit claiming that Iowa prison officials and Linn County (Cedar Rapids) jail officials violated his eighth amendment rights by denying him corrective surgery to repair a back injury, as recommended by his treating physicians. He also claimed that use of a black box when transporting him to and from medical appointments violated his eighth amendment rights by causing pain and discomfort.

The district court dismissed the black box claim, noting that the issue has been ruled on by several circuit courts which have held it does not violate the eighth amendment. The court held that delaying surgery for a medical injury violates the eighth amendment. This claim was set for trial.

In its lengthy legal analysis the court identifies the legal burdens faced by the plaintiff and defendant in eighth ...

Outgoing Mail Censorship Illegal

A district court has reaffirmed the long-standing principle that the censorship of outgoing prisoner mail rarely implicates prison security interests. Donald Gee, a Wyoming state prisoner, wrote a letter to his brother about his conditions of confinement, that he was being retaliated against by prison officials and that he might die because he was being denied medication. Wyoming prison officials routinely censor outgoing prisoner mail and they confiscated Gee's letter and infracted him. Gee was charged with violating a prison rule prohibiting Aproviding false information to any official, court, news media, penitentiary employee, or the general public. He was found guilty of the charge and punished.

Gee filed suit claiming that the censorship and discipline violated his first amendment rights as stated in Procunier v. Martinez, 416 US 396, 94 S.Ct. 1800 (1974). AAs was the case in Martinez, defendants in this case do not show how statements directed outside of the prison, can undermine or pose a threat to order, discipline and security inside of the institution. Similarly, defendants do not specify what contribution the suppression of false statements by an inmate to his family about the motives or conduct of prison officials may make to the ...

Translators Required for Medical Interviews

Pretrial detainees and convicted prisoners held in the Kern County, CA jail filed a class action suit challenging the jail's use of padded safety cells for violent and suicidal prisoners and other jail conditions. The district court held that the safety cells, consisting of bare cells with no furniture and only a grate covered pit toilet, violate no constitutional guarantees. The court issued an injunction requiring prison officials to develop a policy allowing prisoners in administrative segregation to exercise and have day room access together; and it requires jail officials to provide non-inmate translators for Spanish speaking prisoners seeking medical care. Both parties appealed and the court of appeals for the ninth circuit affirmed in part, reversed and remanded in part.

The appeals court affirmed the lower court ruling with regard to the safety cells. The court held that use of the cells for short periods of time to protect suicidal prisoners was acceptable and did not violate the eighth amendment.

The court reversed the injunction regarding exercise for prisoners in administrative segregation (ad seg). Prisoners in ad seg retain all jail privileges such as visitation, phone access and exercise. However, they are held alone and have no contact ...

Detainees Entitled to Non-Punitive Conditions

Pretrial detainees, who have not been convicted of any crimes, may not be punished in any manner. This includes housing them in jail conditions that could be construed as punitive. Dale Miller filed suit over conditions at the Cook County (Chicago) Jail. He claimed that jail cells lacked adequate ventilation and heating, the showers were filthy and he was given a wet mattress infested with insects and mice. He also sued over jail policy of refusing to pay postage for more than the first ounce of letters. The defendants filed a motion to dismiss for failure to state a claim upon which relief could be granted.

The district court gave an extensive analysis of the legal principle which holds that pretrial detainees may not be punished under any circumstances. Detainees retain as many rights as convicted prisoners. AIf the detainee has >at least' as much protection, this leaves open the argument that he can have more. That would explain why the Eighth Amendment cases relied on in Salazar and Swafford are useful by analogy.... When the challenged conditions amount to cruel and unusual punishment under the Eighth Amendment, they >obviously' violate the Fourteenth Amendment rights of pretrial detainees. But those ...

No Immunity for Smoke Exposure

The Court of Appeals for the Eighth Circuit has affirmed a lower court ruling denying prison officials qualified immunity from money damages for exposing a prisoner to Environmental Tobacco Smoke (ETS). George Weaver, a Nebraska state prisoner, was placed in a cell with a heavy smoker. He complained to prison officials that when he is celled with a smoker he suffers from severe medical problems such as headaches, nausea, vomiting and breathing difficulties. He was told to file a grievance, which he did. The warden responded by ordering Weaver's cell to be designated a Anon-smoking cell. Despite this designation Weaver's cellmate continued to smoke and prison officials confirmed this. Weaver personally showed the warden's orders to prison officials and they made no attempt to enforce the orders.

Weaver filed another grievance and the Director of Correctional Services responded by reiterating that Weaver's cell was non smoking and that if he continued to experience problems he should contact unit staff or an investigation or a cell change. Weaver contacted unit staff, advised them that his cellmate was still smoking and asked that he or his cellmate be moved to a different cell. Unit staff refused to make ...

OR DOC To Ban Smoking

The Oregon DOC has announced plans to ban smoking in all its facilities by October 1, 1995. The ban will be implemented in a four phase plan which gradually limits, then eliminates, the areas in which prisoners may smoke. The DOC will offer smokers educational material and classes on how to quit smoking before then. A Kansas reader has reported that the DOC in that state has also announced plans to ban smoking.

Both of the readers who submitted the above information have indicated they will be undertaking litigation against the smoking ban. There are several published cases where prisoners have challenged bans on smoking, all have lost as the courts hold that prisoners have no constitutional right to smoke. Whether or not state courts might hold differently is a possibility but a slim one.

In the September, 1993, issue of PLN we reported the Supreme Court ruling in Helling v. McKinney which held that prison officials were liable for exposing non smoking prisoners to Environmental Tobacco Smoke (ETS). At that time we predicted that it was only a matter of time before all or most prisons across the country went non-smoking. While it is possible to have non-smoking units ...

Hearing No Substitute for Trial

The court of appeals for the eighth circuit has held that a district court evidentiary hearing cannot serve as a substitute for a full trial, doing so violates a prisoner's seventh amendment right to a jury trial. Harold Hobbs, an Arkansas state prisoner, was held in solitary confinement under orders not to have any contact with other prisoners. While Hobbs was outside of his cell a prison guard opened the cell door of another prisoner, who rushed out of his cell armed with a knife and attempted to stab Hobbs. Hobbs fled and was able to escape the other prisoner. He reported to work but later suffered chest pains and emotional distress. Hobbs filed suit pursuant to 42 U.S.C. ' 1983 claiming that several prison guards had violated his eighth amendment right to remain free from attack by other prisoners. He sought injunctive relief, compensatory and punitive damages.

After surviving the defendant's motion to dismiss the magistrate judge scheduled the case for a Apre jury hearing@ pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) and directed Hobbs to file a witness list, motion for issuance of subpoenas and summaries of the witnesses' proposed ...

Fear Constitutes Actual Injury

A district court in Illinois has held that the fear a prisoner experiences when attacked by another prisoner, in the absence of any physical injury, is sufficient injury to state a claim for compensatory damages under section 1983. Anthony Jones is an Illinois state prisoner in protective custody. He claimed that he gave a prison guard a note not to open his cell door for any reason because other prisoners were trying to sexually assault him. Later that morning the guard opened Jones's cell door and a prisoner charged in brandishing a knife. Jones suffered no physical injury during the attack. Jones filed suit under section 1983 claiming that the guard had violated his eighth amendment right to protection from assaults by other prisoners.

The guard denied that Jones had informed him of any danger or need for additional protection. The court held that this created a disputed issue of material fact which needed to be resolved at trial. The court held that Jones had produced sufficient evidence to meet the objective and subjective components of his eighth amendment claim and should proceed to trial.

The prison guard sought dismissal on the basis that Jones had not alleged any ...

From The Editor

From the Editor

By Paul Wright

Welcome to another issue of PLN. Readers may recall that in the July, 1994, issue we ran an article concerning the suit filed by Ed Mead (PLN's former co-editor) and myself against the Washington state parole board. After being released from prison in 1993 the parole board placed a parole condition on Ed whereby he was forbidden from having any contact with convicted felons, namely the bulk of PLN's readers and myself. The Washington ACLU took the case and filed suit on our behalf in federal court in Tacoma. Our attorney, Frank Cuthbertson, did an excellent job arguing our case that the parole board=s ban was in retaliation for the critical articles published in PLN and operated as a prior restraint on the press and violated our right to free speech. Evidence supporting this was the fact that Ed's federal parole officer construed a similar no contact condition to forbid only actual physical contact, letters and phone calls were okay. Likewise, Ed's state parole officers repeatedly questioned him about his involvement with PLN and made it clear that the purpose of the restriction was to prevent his involvement in ...

News in Brief

Canada: On May 10, 1995, a government panel investigating why more than 11,000 Canadians, most of them hemophiliacs, contracted AIDS and hepatitis in the 1980's, announced that it had traced the illness to blood products made with blood from Arkansas state prisoners, many of whom later tested positive for the HIV virus. The Canadian government owned Connaught Laboratories purchased large quantities of blood from American prison systems in the 1980's.

AZ: Maricopa County sheriff Joe Arpaio is notorious around the country for his punitive treatment of jail detainees, which includes canceling coffee, smoking, sexually explicit magazines, housing prisoners in tents, etc., at the jail. Arpaio's latest stunt has been to spend $150 from the jail's canteen fund to buy Newt Gingrich's ten part video lecture series. The series will be piped into the detainees cells via a cable TV system he installed. The series deals with democracy (what does Newt know about this?) and free enterprise (does he talk about his book deals?).

TX: At a June 11, 1995, National Sheriff's Association (NSA) convention US attorney general Janet Reno announced that the Department of Justice will give the NSA, in conjunction with the ...

Police, Death and Inquests

David Urban, 35 years old, was serving a 30-day sentence in the Winnebago County Jail in Oshkosh, Wisconsin, when, at 1:00 pm on January 13, he began complaining to guards that he felt ill and needed medical attention. The sheriff's deputies who run the jail thought Urban was faking. Twenty hours later Urban died of a heart attack.

AI wish someone would have believed him, [*] said Urban's girlfriend, Vanessa Miller, afterwards. Urban phoned Miller several times during the afternoon and evening of January 13. Miller testified before an inquest jury that Urban told her, in a call at about 11:00 pm, that he felt like his chest was caving in. In another call Urban was screaming, saying I feel like I'm dying. All they've done is take my blood pressure and pulse. Patty Strassen, a clerk at the jail, testified that on his last afternoon alive Urban was vomiting, grabbing his stomach and chest and talking to himself, saying My God, I'm sick. Someone help me. Yet jail personnel failed to summon adequate medical attention and Urban was declared dead the next morning.

There is nothing unusual in all this. Anyone who's ...

From Senegal in Struggle

The West-African state of Senegal was created by it's former French colonial rulers, who upon  granting "Independance" to the country, set up a puppet government subservient to both its  former French masters and the multinational corporations, who perpetuate the looting of  Senegal's raw materials and exploitation of cheap labor as in the rest of Africa and throughout  most of this planet.

As elsewhere the mass media is rigidly controlled by the state, which falsifies and manipulates  the "news" to its own benefit. Of Senegal's population 80% are illiterate and only 10% of the  educated complete University studies, priority is given to the training of an elite of future rulers in  order to ensure the continuation of the present social/political set-up.

In this situation many of Senegal's disinherited people have been forced through poverty and unemployment into drug-addiction, prostitution, petty crime and finally prison. The policy of the Senegalese regime has been to build more prisons in an attempt to contain and silence the widespread discontent of the oppressed masses. As in neighbouring Mauritania the regime rules  with ultra-repressive insurgency laws and has obliged many members of the political opposition in to exile.   

For Senegal's ...


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