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Prisoner Education Guide

Prison Legal News: January, 1996

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Volume 7, Number 1

In this issue:

  1. Voting Rights Case Reinstated (p 1)
  2. From the Editor (p 3)
  3. NBC Slanders Freedom Fighter (p 4)
  4. Arizona Prisoners Charged for Electricity (p 4)
  5. Federal Prisons Erupt (p 5)
  6. WADA Squeezed Out of Existence (p 7)
  7. Maryland Medical Co-Pay Policy Upheld (p 8)
  8. Direct Action in Ohio (p 8)
  9. CBCC Prisoners Struggle (p 9)
  10. Women Prisoners Lose Discrimination Suit (p 10)
  11. Texas Anti-Litigation Law (p 10)
  12. 7th Circuit Clarifies "Frivolous" and Safety Standard (p 11)
  13. News in Brief (p 12)
  14. Back on the Chain Gang (p 12)
  15. Sexual Extortion Violates Eighth Amendment (p 13)
  16. Failure to Prosecute Dismissal Reversed (p 27)

Voting Rights Case Reinstated

In the July, 1994, issue of PLN we reported Baker v. Cuomo, 842 F. Supp. 718 (SD NY 1993), where a district court in New York sua sponte dismissed a lawsuit filed by black and Hispanic prisoners under 42 U.S.C. § 1983 claiming that state statutes disenfranchising felons from voting violated their right to equal protection and under 42 U.S.C. §1973 et seq., the Voting Rights Act, by having a disproportionate impact on minorities. The court of appeals for the second circuit has reversed and remanded the case. Section 5-106 of New York state's election law prohibits incarcerated felons from voting even though non-imprisoned felons can vote. The plaintiffs claimed that because of racist sentencing practices and the racial composition of the state prison system § 5-106 acted to violate their right to vote under the fourteenth and fifteenth amendments and the Voting Rights Act (VRA). Their suit sought declaratory and injunctive relief, namely, being allowed to vote in New York City's 1993 elections, and $1.50 in damages for each day they were not allowed to vote. The district court held that the complaint failed to state a claim upon which relief could be granted ...

From the Editor

Welcome to another issue of PLN . Readers who have been with us for awhile may recall that Ed Mead and I have a suit pending against the Washington State Indeterminate Sentence Review Board (ISRB), AKA the parole board. Ed was the co-editor of PLN from 1990, when we started, until he was released from prison in 1993 and the parole board forbade him from having any contact with me and other "convicted felons." The ACLU of Washington filed suit on our behalf contending that this ban, which was clearly aimed at silencing PLN , was a violation of our freedom of speech. In essence the ISRB is saying that if Ed wanted to continue editing or publishing PLN, they would put him in prison. The freedom of speech pundits in the corporate media haven't had much to say about this.

Tacoma federal Judge Robert Bryan dismissed our suit holding that if prisoners have no right to correspond then neither do parolees. Our attorneys, Frank Cuthbertson and Michael Kipling, have filed an appeal in the ninth circuit. The issues raised are important ones, namely, the political rights of parolees to associate (in this case by mail and phone) with "convicted felons ...

NBC Slanders Freedom Fighter

On Oct. 1, NBC's Sunday Night Movie was titled, 'In The Line Of Duty: The Hunt For Justice." It was billed as the "true story" of the decade long government hunt for a group of anti-imperialist political fugitives who, when finally captured in 1984 and 85, were called the Ohio-7. This was a pro-FBI/police government movie, that contained many misrepresentations and one very dangerous outright lie. It had no input or collaboration from any of the Ohio-7. In fact we weren't even aware that this movie existed until it was aired.

Besides casting the revolutionary fugitives in a negative light while the government was portrayed heroically, a totally fabricated element was included. Richard Williams, one of the Ohio-7, was shown as cooperating and providing information to the FBI. This is absolutely false. In one scene, as Richard is being transported by the FBI and NJ State Police, they threaten to kill him and as the scene ends he is seen agreeing to talk. This never happened. No defendant in any of the Ohio-7 state and federal trials, including Richard Williams, ever was a government witness or in any way worked with the government against the Ohio-7.

Richard ...

Arizona Prisoners Charged for Electricity

The 1995 Arizona legislature passed a law (AZ Rev. Statutes § 31-239) that requires the AZ DOC to establish a plan wherein prisoners will be charged a monthly "utility fee." The statute directs the DOC to collect a monthly fee, "not to exceed two dollars per month," from any "prisoner who possesses at least one major electrical appliance." The legislation is purportedly meant to "offset the cost of the department's [DOC's] utility expenses." But it is doubtful that the monies thus extorted from prisoners would even offset the accounting/clerical expenses required to collect the fees.

Arizona governor, Fife Symington, campaigned on a "get tough" platform. Arizona prisoners then had their hot pots, fans, CD players, tape recorders, personal clothing, and other items taken away. [See: Oppression on the Rise in Arizona, PLN Vol.5 No.8] Can you imagine doing time in a 6'x 9' concrete cage in the Arizona desert without so much as a small fan to recirculate the hot air? There is, of course, no air conditioning in Arizona prison cell blocks.

So after Symington and his side-kick, Sam Lewis (DOC Director) took fans, hot pots and tape players away from prisoners, the AZ ...

Federal Prisons Erupt

At least five federal prisons erupted in violence within days after a vote in the U.S. House of Representatives to overrule a recommendation by the U.S. Sentencing Commission to end the 100 to 1 sentencing disparity between crack and powdered cocaine offenses. Information on the uprisings was sketchy. There were reports of over $1 million in damages to the prison at Talladega, Alabama. Not reported by the press were details such as how prisoners in Lewisburg, Pennsylvania fashioned a homemade "cannon" and fired it at advancing Emergency Response Team (ERT) members.

The uprisings were widely reported by the corporate media. Most newspaper reports, however, were buried well off the front pages. The corporate media focused on accounts from "official spokespersons" who universally denied that the rebellions were related to the vote in Congress. Typical of the type of reporting are the following quotes from newspaper articles: "Faye Pollard, a spokeswoman for the Federal Bureau of Prisons said Sunday the cause of the outbreaks was still being investigated and could not necessarily be attributed to the vote in Congress;" and "Officials were unsure whether the attack [against guards at El Reno prison] was related to the other disturbances." (Associated ...

WADA Squeezed Out of Existence

The Washington Appellate Defenders Association (WADA) ceased operating on July 31, 1995, because the nonprofit firm and the state could not agree to terms for a new contract. Patricia Novotny, WADA's assistant director said, "Our decision wasn't, not to re-sign [the contract], but was a decision not to go bankrupt." WADA had long been under contract to handle indigent criminal appeals in Division I (Northwest Washington, including Seattle). The courts tried but failed to persuade the WA legislature to raise the compensation paid to WADA from $1,995 per case to $2,495 in its 1995-97 budget. The demise of WADA cost twenty attorneys and five support staff their jobs. WADA paid its attorneys a salary scale ranging from $26,000 to $43,673.

Division I indigent criminal appeals will now be divided between another nonprofit agency, the Washington Appellate Project and a for-profit law firm, Nielson & Acosta. The WA Appellate Project pays its attorneys $26,500 a year. Nielsen & Acosta has eight attorneys, but relies on 20 "contract attorneys" to handle the indigent appeals. The contract attorneys will be paid between $900 and $1,300 per case. The firm's partners, including Eric Broman who will supervise the "temp worker" attorneys, say they hope to "control costs" by using contract attorneys who work out of their own offices or homes and provide their own computers and modems to connect with the firm's office.

This year Nielson & Acosta could be the sole provider of indigent appeals in Division I. Richard Tassano, director of the Washington Appellate Project, has said that his agency won't renew its contract unless the state changes the way it pays for indigent appeals.

The demise of WADA, and the probable demise of the Washington Appellate Project, both nonprofit organizations who relied on in-house, salaried attorneys, is a result of the courts' move to "competitive bidding" to assign appeals cases to the lowest bidder. When the court made that move, Eric Nielson and Carmine Acosta, who were both sole practitioners at the time, formed their law firm, put in a bid and were given the contract.

As a result, salaried attorneys who had had the luxury of going to sleep each night knowing that they would have a job the next day, have been replaced by what amounts to "temps" who must provide their own working quarters, computers, office supplies, health insurance, utilities, etc. and who live with the day-to-day uncertainty of whether enough crumbs fall off of Nielson & Acosta's table to feed them for another day. This is the type of "flexible labor" that has "made America more competitive in a global market," and which has resulted in ManPower, Inc. overtaking General Motors as the country's largest employer.

What shouldn't be overlooked in this, however, is the question of what kind of legal assistance will indigent prisoners get when their appeals are handed over to "the lowest bidder." The least time consuming way to handle such an appeal is for the attorney to simply "go through the motions" of an appeal and hope the courts dispose of the case as quickly as possible. A case involving a reversible error by the trial court and/or outright wrongful conviction would be considerably more time consuming to contend with. How many of the contract attorneys will diligently pursue such a case?

When "justice" is contracted out to the lowest bidder, everybody losses, well... everybody, perhaps except Nielson & Acosta. The state pays them $1,995 per appeal, which they then "contract out" to free-lance attorneys who are paid between $900 and $1,300 per case. Who knows, maybe one of the twenty attorneys who were formerly employed full-time at WADA will even become hungry and desperate enough to beg for crumbs from Nielson & Acosta.

Under the 6th amendment defendants have some rights on who represents them, even if they cannot afford counsel. Todd Maybrown of the law firm Allen & Hansen is considering filing suit on behalf of the 800 WADA clients who were stranded by its demise. Affected prisoners can contact him at: 1001 4th Ave. Plaza #4301, Seattle, WA 98154; (206) 447-9681.

Prisoners whose appeals have been assigned to Neilson & Acosta and who experience problems of unprofessionalism (i.e. counsel won't accept calls, return letters, consult with clients, etc.) should consider filing a complaint with the Washington Bar Association. Attorney David Zuckerman, 705 2nd Ave. Suite 1300, Seattle, WA ...

Maryland Medical Co-Pay Policy Upheld

In the November, 1995, issue of PLN we discussed case law and litigation strategy on challenging state laws requiring prisoners to pay for medical services. As more states pass such laws we foresee more litigation on the issue. A federal district court in Maryland has upheld a pro se prisoner's challenge to the constitutionality of Md.Ann.Code Art. 41, § 4-104. This statute authorizes prison officials to charge prisoners "a reasonable fee not to exceed $4 for each visit by a prisoner to a medical unit...." The statute provides for numerous exceptions, including no fees being assessed for "needed treatment."

In implementing the statute the Maryland DOC implemented a policy whereby prisoners are charged $2 for certain non emergency medical services. The stated purpose of the sick call policy is to reduce abuse of the sick call system, to promote prisoner responsibility for their own health and to allow more efficient use of prison medical resources.

Jerome Johnson filed suit challenging the constitutionality of the statute. Johnson earns 85 cents a day and claims that he cannot afford to pay the medical charges assessed against him. He was charged between $4 and $10 for medical visits. Johnson did not ...

Direct Action in Ohio

by an Ohio Prisoner

In January of 1992, the Federal Bureau of Prisons (BOP) announced plans to build a federal prison in Columbiana County, Ohio. They planned to take over land owned and farmed by local families for generations.

Local farmers and working folks pulled together to oppose the prison. The BOP, devious as they are, countered by gathering petitions from surrounding counties in support of the prison. The citizens' opposition group hired counsel and a public relations firm to combat the BOP. After a protracted battle, BOP partially conceded and scaled the project back to 330 acres, from the 1,800 they had originally planned. The citizens' group continued to fight the project by utilizing environmental laws because the proposed site is a wetland.

However the BOP started to clear the land for construction. In early August construction was halted after hundreds of rounds of ammunition (.22) shells wrapped in foil with spikes inserted in the wrapping were discovered peppering the construction site. Heavy machinery or trucks rolling over these homemade mines would have damaged the construction machinery (and maybe a few BOPers).

[Editors Note : An FBI spokesperson said a preliminary investigation suggested "nothing more than vandalism." Construction was ...

CBCC Prisoners Struggle

On September 26, 1995, some 25 prisoners in A unit of the Clallam Bay Corrections center (CBCC) attacked two guards and then attempted to barricade themselves and the guards within the 33 cell pod unit. The guards succeeded in escaping after being sprayed in the face with spray cleaner. The unit was placed on lockdown and remained that way until the morning of September 29, 1995. A prison spokesperson stated that at least two prisoners would be referred to the Clallam County prosecutor for criminal prosecution. The spokesperson claimed that the prisoners had tried to take the two guards hostage.

This is not the first time CBCC prisoners have rebelled. On April 16, 1995, prisoners at CBCC caused well over $30,000 in damages by totally demolishing a unit pod with cleaning utensils; that uprising was suppressed three hours later by guards with stun grenades.

Longtime readers of PLN may recall that PLN 's very first issue, in May of 1990, kicked off with a front page story about an uprising at CBCC where prisoners who were being beaten by guards were defended by other prisoners and the prison's close custody unit was seized and held by prisoners for ...

Women Prisoners Lose Discrimination Suit

Women Prisoners Lose Discrimination Suit 

In the December '94 issue of PLN we reported Klinger v. Nebraska DOC , 31 F.3d 727 (8th Cir. 1994) which had reversed an earlier ruling, at 824 F. Supp. 1374 (D NE 1993), PLN . Vol. 4, No. 12, which had held that women prisoners in Nebraska were discriminated against because they received almost none of the educational and vocational opportunities that male prisoners received. The appeals court reversed, holding that male and female prisoner were not similarly situated for fourteenth amendment purposes.

In this ruling the district court essentially carries out the appeal court's command and reverses his prior ruling and vacates its Title IX holding. In this case the court held that no gender based discrimination took place because women prisoners at the state's prison for women and male prisoners at the state penitentiary were not "similarly situated" for fourteenth amendment analysis. The women also sued claiming that Title IX of 20 U.S.C. § 1681-1688, which bans discrimination in educational programs receiving federal funds, was being violated. The court held that there was no Title IX violation because the prisoners were not similarly situated. See: Klinger v. Nebraska DOC , 887 ...

Texas Anti-Litigation Law

In its 1995 session, the Texas legislature passed a bill that amends and modifies Subchapter B, Chapter 15 of the Civil Practice and Remedies Code, purportedly to combat "frivolous or malicious litigation filed by inmates." By now PLN readers should be familiar with this type of legislation. Highlights of the Texas version include: after a court dismisses a prisoner's claim, the court "on the court's own motion or the motion of any party or the clerk of the court, may advise the department [of Corrections] that a mental health evaluation of the inmate may be appropriate."

The law requires prisoners to exhaust the prison grievance system before filing any litigation. "A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system.... If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure."

The law allows the court to order prisoner litigants to pay court fees, court costs, and other costs ...

7th Circuit Clarifies "Frivolous" and Safety Standard

The court of appeals for the seventh circuit ruled that a district court must determine a suit is not only legally insufficient but that it cannot be saved by amendment before the court can dismiss the suit as frivolous under 28 U.S.C. § 1915. In its ruling the appeals court defines the appropriate level of appellate review for § 1915(d) dismissals. This ruling is highly significant for pro se prisoner litigants because the court also discussed means by which such litigants can conduct pre litigation investigation in order to sue the proper parties. It also discussed the appropriate standards in eighth amendment safety cases.

Jason Billman, an Indiana state prisoner, filed suit under 42 U.S.C § 1983, claiming prison officials were deliberately indifferent to his right to be safe from attack by other prisoners. Billman claimed he was raped by his HIV positive cellmate after prison officials placed the cellmate in his cell knowing he had a lengthy history of sexually assaulting other prisoners. He also claimed that an unknown guard stood by while the rape was occurring and did nothing to assist him. The district court dismissed the suit on the ground it was frivolous pursuant to ...

News in Brief

IN: Al Parke, the new warden at the Indiana State Prison has solved his understaffing problems by cutting the number of required staff at the prison. He now has all slots filled simply by decreasing the number of slots.

VA: On June 30, 1995, Virginia's only prison program that treated sex offenders was shut down ostensibly because it "didn't work." Governor Allen, who canceled the $220,000 a year program, said sex offenders will have to "heal themselves."

Australia: On September 24, 1995, guards at 18 out of 26 jails in the state of New South Wales went on a 24 hour strike to protest video surveillance cameras replacing security towers. A spokesperson for the guards union said the strike was called because prison officials had not honored a promise to staff towers until the new equipment was properly working. A week before this two prisoners escaped from a jail, and it was not filmed. Police were brought into the jails to guard the prisoners.

Columbia: On October 3, 1995, the government announced a plan to reduce the prison sentences of kidnappers who keep their victims alive and well fed and stated that ransom payments would be made ...

Back on the Chain Gang

John Stossel of ABC's 20/20 calls himself a libertarian. But rather than criticizing the reappearance of chain gangs as an assault on human liberty, Stossel promoted them on the June 9, 1995, broadcast as "reasonable punishment" and "only fair." When one Alabama prisoner pointed out that "you're not allowed to chain an animal up in Montgomery," Stossel retorted, "Animals don't break the law." (The same logic could be used to justify burning at the stake.) 20/20 anchor Hugh Downs also could not see what was wrong with using shackled prisoners for slave labor: "I can't see the cruelty," said Downs, who serves as the chair of the U.S. committee for UNICEF.

Reprinted from Extra Update , August, 1995.

Sexual Extortion Violates Eighth Amendment

Afederal court in the District of Columbia held that a prisoner who was extorted for sex by a prison guard and labeled a snitch as a result states a claim for an eighth amendment violation and qualified immunity is not appropriate. Gregory Thomas is a District of Columbia prisoner in the Lorton, VA prison. He filed suit claiming that sergeant Charles Ingram forcibly touched his penis on several occasions in order to coerce Thomas into having sex with him. When Thomas refused to have sex with Ingram the latter sexually harassed and intimidated Thomas and spread rumors within the prison that Thomas was gay and a snitch who had testified against his co-defendants in a drug distribution case. Thomas reported Ingram's activities to prison officials on several occasions but no action was taken to either discipline Ingram or protect Thomas. The defendants filed a motion to dismiss the suit for failing to state a claim or, in the alternative, for summary judgment.

The district court denied the motions, holding that Thomas had stated a claim. "Sexual assault, coercion and harassment of the sort alleged by plaintiff violate contemporary standards of decency and can cause severe physical and psychological harm ...

Failure to Prosecute Dismissal Reversed

The court of appeals for the second circuit has held that a district court abused its discretion in dismissing a prisoner's civil rights suit on a basis of failure to prosecute where the prisoner plaintiff allegedly refused to attend jury selection in his case. Jose Colon, a New York state prisoner who does not understand English, had filed suit claiming prison guards beat him and his case was set for trial. On the morning of the day set for jury selection, counsel for Colon and the defendant guards and the court were told that Colon had refused to leave his cell to go to court. Colon's attorney spoke to him on the phone, via an interpreter, and Colon told him he had been awakened by a guard at 4 AM and told he was going to the hospital. Not being sick, he refused to go. Counsel informed the court of the situation and the court entered an order conditionally dismissing the suit, subject to Colon providing an adequate explanation for his failure to appear.

Colon submitted an affidavit reiterating the account he had given his attorney. Two prison guards submitted affidavits contradicting Colon's, claiming they had awakened ...

 

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