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Prisoner Education Guide

Prison Legal News: October, 1996

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Volume 7, Number 10

In this issue:

  1. UNICOR Hogs Body Armor Market (p 1)
  2. Prisoners May Be Allowed to Lead Religious Services (p 2)
  3. From the Editor (p 3)
  4. The "Honorable Men" Defense (p 4)
  5. Plaintiff Entitled to Respond to Qualified Immunity Defense (p 5)
  6. Alleged Work Refusal Requires Trial (p 5)
  7. Unrest in South American Prisons (p 6)
  8. Less than Lethal Force Liability (p 7)
  9. Smoke and Mirrors (p 7)
  10. A Matter of Fact (p 8)
  11. Correction (p 8)
  12. Cause of Action Accrues on Disciplinary Reversal (p 9)
  13. Prisoner Testimony Must Be Considered in Spears Hearing (p 9)
  14. Texas Parole Rules on Litigants and Victim Statements Enjoined (p 10)
  15. Extending Release Date Violates Eighth Amendment (p 11)
  16. Attorney Fees Awarded for Opposing Motion to Vacate (p 11)
  17. Attica: Looking Back 25 Years (p 12)
  18. Jail Guards File Suit (p 13)
  19. Fifth Circuit Applies New Standard to Detainee Claims (p 14)
  20. MCC Settlement Upheld (p 15)
  21. Evidence Required for Disciplinary Sanction, Sandin Questioned (p 15)
  22. Pepper Spray Madness (p 16)
  23. Pepper Spray Unsafe? (p 17)
  24. Indigents Entitled to Full Credit for Pretrial Detention (p 18)
  25. De Novo Review Required of Magistrate's Report (p 18)
  26. Texas Shaving Rule Declared Illegal (p 19)
  27. Parolee's Jail Rights Discussed (p 19)
  28. Missouri Haircut Rule Upheld under RFRA (p 20)
  29. No Right to Assistance in Family Law (p 21)
  30. Retaliation for Grievance Committee Participation Requires Trial (p 21)
  31. PI Granted in Haircut Claim (p 22)
  32. Court Responsible for Jury Demand (p 22)
  33. Complaint Can't Be Dismissed if Partial Filing Fee Paid (p 23)
  34. No FLSA Protection for Work Release Prisoners (p 23)
  35. Right to Witnesses and Court Access Well Established (p 24)
  36. News in Brief (p 24)
  37. Court Okays Disclosure of AIDS Status (p 25)

UNICOR Hogs Body Armor Market

In the July '96 issue of PLN we published "Furniture Manufacturers Threatened by UNICOR," an article about how Federal Prison Industries, Inc. (FPI, which uses the trade name UNICOR), dramatically expanded its "market share" of furniture sold to the military and government agencies and how the expanded use of federal prisoner slave labor drives free-world manufacturers out of business.

UNICOR is at it again. This time, though, they have dramatically increased their "market share" in the sale of protective clothing (i.e. bullet-proof vests and body armor) to law enforcement agencies. UNICOR does not expand its market share through free-enterprise competition. They decide how much of the market they want, some superficial hearings are held, then FPI's five-member Board of Directors grants the market share request. Law enforcement agencies are then often forced to buy UNICOR body armor in order for FPI to maintain its target market share.

President Clinton promised in a State of the Union address that "those who work hard and play by the rules will be rewarded." The way UNICOR unilaterally dictates how much market share they will have -- regardless of competition, price, quality, or the purchasing preferences of its law enforcement customers -- is certainly ...

Prisoners May Be Allowed to Lead Religious Services

A federal district court in Pennsylvania ruled that a prison rule prohibiting prisoners from leading religious services may be unconstitutional. Four Muslim prisoners in a Pennsylvania state prison filed suit challenging a prison rule which prohibited prisoners from leading religious services. Prior to the new rule prisoners could choose a religious leader from the prison population who would then conduct the religious services. Under the new rule only outside religious leaders could conduct prison religious services and those outside leaders had to be chosen by prison officials. The prisoners claimed the new policy violated their religious rights under the first and fourteenth amendment. They did not raise any claims under the Religious Freedom Restoration Act (RFRA).

This is not a ruling on the merits, instead the court denied the defendants' motion to dismiss for failure to state a claim and scheduled an evidentiary hearing to determine whether a preliminary injunction would be issued. The court held the prisoners had presented sufficient evidence under the reasonableness test of Turner v. Safley, 482 US 78, 107 S.Ct. 2254 (1987) to show that prison officials asserted reasons for adopting the new policy were pretextual. The court noted an easy alternative would be ...

From the Editor

Welcome to another edition of PLN. Last month we intended to run Jaan Laaman's article, "Attica - Looking Back 25 Years," which appears on page of this issue. Due to a prison lockdown, Jaan was unable to get the article to us in time for the September issue. I hope you will find it well worth waiting for.

Twenty-five years ago last month, the uprising at Attica and the state's bloody and brutal retaking of the prison was an event that shook the world. When the prisoners took over Attica they presented a long list of demands. They were really only asking for one thing, though. They were asking to be heard. They had suffered under brutal, inhumane conditions for too long, and they wanted the world to know how bad things in prison in America in 1971 really were.

They asked for the media to come to Attica. Some, like Tom Wicker, did. They asked for attorneys to come to Attica. Many, Bill Kunstler among them, were drawn there. I mention this because more than two decades later Bill was among our earliest subscribers. Sadly, Bill Kunstler died a year ago.

But back to Attica. The Attica Brothers ...

The "Honorable Men" Defense

[Editor's Note: With this issue PLN welcomes its third quarterly columnist, Mumia Abu-Jamal, a political prisoner on death row in Pennsylvania.]

"The noble Brutus hath told you Caesar was ambitious:

If it were so, it was a grievous fault;

And grievously hath Caesar answer'd it. Here, under leave of Brutus and the rest,--

for Brutus is an honorable man.

So are they all, all honorable men."

--William Shakespeare, Julius Caesar; Act III; Scene II.

For jailhouse lawyers and other prison litigators, the 'honorable men'' defense arises far too frequently in prison litigation.

More often than not, it arises, not on the motion of the party defending against the suit, but sua sponte, by the Court itself, as a statement of affirmation of the government's representatives.

Say a plaintiff charges a state officer with violating a "constitutional guarantee" claimed within the articles or amendments of the U.S. Constitution, and after a hearing or trial, the claim is found to be true. In such an instance, should a court describe the violators as 'honorable men?"

If a court does so, does it protect the Constitution, or the state official who has violated it?

Is it a Court's ...

Plaintiff Entitled to Respond to Qualified Immunity Defense

The court of appeals for the fifth circuit held a district court improperly dismissed a prisoner's civil rights complaint when it did not allow the plaintiff to respond to the defendants' qualified immunity defense. Donald Todd, a federal prisoner, filed suit claiming his right to equal protection and to be free from discrimination under 42 U.S.C. § 1981 and 1983, were violated when prison officials circulated a racially derogatory memo on BOP stationary. The district court dismissed Todd's complaint after the defendants filed an answer to the complaint asserting a qualified immunity defense.

The court of appeals reversed and remanded. The court has previously held that plaintiffs suing government officials in their individual capacities must meet a "heightened pleadings" requirement. In Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995)(En banc) the court held "we stand by our insistence that complaints plead more than conclusions, and that a plaintiff can, at the pleading stage, be required to engage the affirmative assistance defense of qualified immunity when invoked. However, we will no longer insist that plaintiff fully anticipate the defense in his complaint at the risk of dismissal under Rule 12." This requires a two step ...

Alleged Work Refusal Requires Trial

The court of appeals for the second circuit held that a district court erred when it disregarded a prisoner plaintiff's affidavit that he had not refused a work assignment. The court also declined to decide whether state prisoners have a federal liberty interest when deprived of prison privileges.

Alphonso Samuels is a New York state prisoner. New York prison regulations require that prisoners participate in work programs. If they refuse the prisoner is placed in a "limited privileges program" where they are confined to their cells for 23 hours a day, and have restricted access to showers, phones, and library. Samuels was placed in the limited privileges program after allegedly refusing a work assignment. Samuels filed suit under 42 U.S.C. § 1983 claiming his due process rights were violated when he was placed in the program with no notice or hearing, most importantly, Samuels claimed he had not refused any work assignment. The district court granted summary judgment to the defendants holding that Samuels was placed in the program for refusing to work.

The court of appeals reversed and remanded. The court discussed the standard by which summary judgment should be granted to a party only when no ...

Unrest in South American Prisons


On February 3, 1996, a specialized military police unit killed two prisoners and wounded another in a Sao Paulo police station after putting down a rebellion by 127 prisoners protesting a lack of water at the facility. "It's not normal" to shoot protesting detainees, admitted a Sao Paulo police official, adding that the agents involved had been suspended from their duties.

On March 28, Brazilian prisoners armed with sticks and handmade steel blades seized some 25 hostages during an inspection at a prison in the Brazilian state of Goias. The inspection was to check on reports of overcrowding at the facility which has a capacity of 450 but holds nearly 1,000 prisoners.

Among the hostages taken were the warden of the prison, security secretary for the state of Goias, president of the state's highest court, a number of police agents and a television crew.

On March 30, the state government agreed to the demands of the prisoners. Official spokespeople said the prisoners had demanded four cars, two armored cars, 10 weapons of varying caliber, 10 bullet-proof vests and $20,000. But having won agreement from the state on these demands, prisoners upped the ante, insisting they ...

Less than Lethal Force Liability

The April, 1995, issue of the Creighton Law Review contains and extremely informative article titled Less Than Lethal Force Weaponry: Law Enforcement and Correctional Agency Civil Law Liability for the Use of Excessive Force, by Neal Miller. While much of the article's focus is on the use of force by police most of that analysis and a separate section covers the use of Less Than Lethal Force (LTLF) in prisons. LTLF consists of tasers, stun guns, pepper spray, mace, tear gas, batons and similar weapons which while potentially deadly are not in and of themselves designed to kill. The law review article gives a rundown on the principles of state law and federal liability for the use of force, the government's liability, the manufacturers liability (the makers of the equipment are also liable for the misuse of their product and can be sued accordingly). Due to space limitations PLN cannot reprint the article.

Anyone who is litigating the use of LTLF weapons should read this law review article as it provides an extensively footnoted, comprehensive analysis of legal facts and principles to use in litigation. The best time to read this article is before drafting the complaint. The ...

Smoke and Mirrors

Review by George Everett

Smoke & Mirrors has less to do with drugs than it does with the true casualties of the long-fought War on Drugs -- the many civil liberties that all of us have lost, especially in the last decade, as federal policy has amassed greater and greater powers in the hands of police and prosecutors.

Dan Baum puts you in the room as each new Drug War law, court decision or policy change is discussed and created. The reader watches his or her own Constitutional rights stripped away piece by piece by people who should have known better.

This not a dry book about legal precedence and maneuvers, however; each new onslaught is placed in context by how it affects the people most harmed by them. The names, faces, lives, and families of the Drug War's victims are vividly displayed.

For instance, Baum tells about an innocent African American landscaper named Willie Jones traveling from Nashville to Houston to buy shrubs who made the mistake of buying a plane ticket with cash. That bumped him into a drug courier profile and the ticket agent received a reward for reporting the person to authorities who confiscated his cash. Travelers, fitting drug courier profiles, mostly people of color, can be required with impunity now to undergo X-ray examinations, full cavity searches, and to defecate in buckets upon demand before they are allowed to continue on their journey.

The most odious of these recent infringements however involve civil and criminal forfeiture laws that now make it legal to arbitrarily confiscate the property of someone only suspected of a drug crime. These laws have turned drug investigations into money-making ventures for law enforcement departments around the country. Some even have budgets that rely heavily on property confiscation -- cash, cars, land, homes from those suspected of drug ...

A Matter of Fact

A 1988 study of California prisoners concluded that there is a strong positive correlation between prisoners' visiting and their successful transition to the free world. Of those who received 12 or more visits in their last year of incarceration, 68.5 percent had "satisfactory outcomes" (presumably meaning no arrests or reincarceration) compared to 38.7 percent for those who had received no visits.
In its last term, the U.S. House of Representatives passed H.R. 666, which curtails the need for a search warrant in cases of drug interdiction. When H.R. 666 was being debated, Rep. Melvin Watt of North Carolina introduced an amendment that consisted of the exact language of the Fourth Amendment to the U.S. Constitution. The House, given this opportunity to vote on the 4th Amendment, defeated it by a vote of 303-121.

A 1992 study by Michael Radelet of the University of Florida and Hugo Bedau of Tufts University, "In Spite of Innocence," identified 23 cases in which innocent people have been executed in the U.S. since 1900. Over 400 were wrongfully convicted of capital crimes during the same period.

A recent survey of prison wardens revealed that wardens believe that one ...


In the July, 1996, issue of PLN we reported Prison Litigation Reform Act Passed. On page three we incorrectly stated that the PLRA limits attorney fees to $40 an hour for out of court work. The PLRA limits attorney fee recovery to 150% of the amount set in 18 U.S.C. § 3006A. So the actual amount would be $62.50 for out of court work. We apologize for the error and thank alert reader Stephen Pevar for bringing it to our attention.

Cause of Action Accrues on Disciplinary Reversal

The court of appeals for the second circuit held that the statute of limitations for a § 1983 action does not begin to run until a prisoner has successfully challenged the disciplinary hearing in state court. Theodore Black is a New York state prisoner. In 1990 he was infracted and found guilty in a disciplinary hearing. He was sentenced to 180 days in segregation. Administrative appeals were unsuccessful but he succeeded in having the infraction reversed in state court. By that time Black had already served the segregation sentence. In 1993 Black filed suit in federal court seeking money damages for the deprivation of due process at the disciplinary hearing. The district court refused to dismiss the suit on defendants' motion that Black's success in state court barred the federal action. Black was denied leave to amend his complaint to add the prison officials who had denied his administrative appeals. The district court then granted the defendants summary judgment holding that the complaint was time barred because Black did not file suit in federal court until the statute of limitations had expired.

The court of appeals affirmed dismissal of one defendant for lack of personal involvement, but it reversed and ...

Prisoner Testimony Must Be Considered in Spears Hearing

The court of appeals for the fifth circuit held that a district court abused its discretion when it heard a prisoner's testimony during a Spears hearing and then disregarded it and dismissed the complaint. Danny Eason, a Texas state prisoner, filed suit claiming his eighth amendment rights were violated when prison guards, without provocation, threw him to the ground and kicked him while he was handcuffed. The district court held a Spears hearing where Eason testified about the incident, the injuries he suffered and each guards' involvement. The court then dismissed the complaint for failing to state a claim because Eason had not, according to the court, alleged any injury.

The appeals court began its analysis noting that dismissals under Fed.R.Civ.P. 12(b)(6) are reviewed de novo on appeal. Dismissals are not proper unless, based solely on the pleadings, it appears that the plaintiff can prove no set of facts supportive of his claim that would entitle him to relief. The court characterized this appeal as presenting the question of the proper relationship between Spears testimony and filed pleadings. The ruling has extensive footnotes explaining the role that Spears hearings play in prisoner litigation in ...

Texas Parole Rules on Litigants and Victim Statements Enjoined

A federal district court in Texas issued an extensive injunction prohibiting the Texas Board of Pardons and Paroles (TBPP) from taking into account either a prisoner's litigation history or unverified protest statements which oppose a prisoner's parole in making parole decisions. The court denied relief concerning consideration of a prisoner's furlough history when making a parole determination. The case involves a class action suit in which the class consists of all Texas state prisoners. The prisoners filed suit under 42 U.S.C. § 1983 to challenge the fact that TBPP routinely used prisoners' litigation history, i.e., that they filed suit against prison officials or the parole board, as a reason to deny prisoners parole. Also challenged was the practice of the TBPP using protest statements filed by persons opposed to a prisoners' parole as a reason to deny parole while not providing the prisoner access to the statements or verifying the accuracy of the statements. This ruling applies only to Texas prisoners but will be useful to prisoners held in states which still have indeterminate sentencing systems.

Writ Writing Activities

The court noted that prisoners have a right of access to the courts grounded in the ...

Extending Release Date Violates Eighth Amendment

A federal district court in Illinois held that the eighth amendment is violated when a prisoner is held almost two years past his release date. Don Campbell, an Illinois state prisoner, was released from prison in 1986 to serve a two-year term of Mandatory Supervised Release (MSR). A few months later he was arrested and convicted for possessing a firearm. He was sentenced to two years in prison and was also declared an MSR violator. The state trial court ordered that he serve the remaining MSR term concurrently with the sentence for the new conviction. Once in prison Campbell allegedly violated disciplinary rules and in a three day period lost three years, three days of good conduct time. Suspecting the infractions would be used to illegally lengthen his sentence, Campbell wrote prison officials who told him his release date was in 1987. Later, they told him his release date was in 1990.

Finding no satisfaction with the responses of prison officials, Campbell filed a writ of habeas corpus in state court. In an unpublished ruling the Illinois appeals court found that Campbell had been held past his minimum sentence. The court found that Campbell should have been released in 1988 ...

Attorney Fees Awarded for Opposing Motion to Vacate

The court of appeals for the fifth circuit affirmed a district court's award of almost $38,000 in attorney fees to class counsel for opposing a jail defendant's motion to vacate a consent decree. In 1978 prisoners at the Madison County jail in Madison, Mississippi filed suit challenging ...

Attica: Looking Back 25 Years

[Editor's Note: Jaan Laaman, Ohio-7 political prisoner, served time at Attica in 1971 and is currently incarcerated at U.S.P. Leavenworth. Due to a shooting and prison lockdown, this 25-year anniversary article is being published a month late. The Attica uprising occurred in September, 1971. Here is a brief chronology of those events:

July of 1971 -- A list of demands by Attica prisoners is presented to New York State Commissioner of Corrections, Russell Oswald.

August 20, 1971 -- George Jackson, a California prisoner and political activist, is fatally shot by guards at San Quentin Prison.

August 27, 1971 -- Attica prisoners call a hunger strike in honor of George Jackson. Only 13 men eat breakfast. Only seven eat lunch.

September 3, 1971 -- Commissioner Oswald visits Attica. He delivers a tape recording for the prisoners, asking for more time to consider their demands.

September 9, 1971 -- The spark is lit. About 1,500 prisoners from all cell blocks take over both D-yard and D-block. One guard is badly beaten during the takeover; 40 prison employees are taken hostage. The prisoners elect leaders and draw up a another list of demands. The injured guard is released and later dies in a hospital ...

Jail Guards File Suit

Five jail guards, disciplined for throwing a blanket over the head of a mentally ill detainee and choking him into a coma, have sued the Santa Clara (Calf.) County Department of Correction and its two highest officials, claiming that they were unjustly scapegoated. The lawsuit, filed April 29, 1996 names as defendants DOC Director Daniel Vasquez and his top assistant, Robert Conroy. The plaintiffs are former sergeants Mitch Conner and Steve Gong, who were demoted, and three other guards who were suspended, Orin Romney, Michael Cote, and David Alves.

The suit stems from a July, 1995, incident which began shortly after 38-year-old Joseph Leitner, a manic depressive, was arrested on minor charges and delivered to the jail. In their complaint, the five guards contend that they were following "standard procedure" for handling mentally disturbed detainees. The guards forcibly restrained Leitner, wrapped his head in a blanket when he began spitting blood and twisted the blanket around his neck.

The guards then carried Leitner to the psychiatric ward and secured him face-down on a restraint table. He lay there motionless for more than five minutes before anyone noticed that he was not breathing. Leitner was left comatose and suffered severe brain ...

Fifth Circuit Applies New Standard to Detainee Claims

The court of appeals for the fifth circuit has significantly weakened the constitutional protections afforded pretrial detainees by adopting a new standard affording significantly less protection than prior supreme court decisions had mandated. Haley Hare committed suicide while in the Corinth, MS jail after being arrested on a petty larceny warrant. Hare's family sued the city for her death claming they violated her constitutional right to medical care and protection from suicide. The trial court held there were genuine issues of fact requiring a trial and denied both parties' motion for summary judgment. The defendants appealed, claiming they were entitled to qualified immunity. In Hare v. City of Corinth, 22 F.3d 612 (5th Cir. 1994) the appeals court dismissed the appeal. That ruling was later reissued under a new theory at 36 F.3d 412 (5th Cir. 1994).

This ruling by the fifth circuit appeals court, en banc, follows and it sets a new standard for all claims brought by pretrial detainees and should be studied by anyone litigating such a claim in the fifth circuit. [Editor's Note: As a practical matter PLN generally does not report jail/prison suicide cases because they are not litigated by ...

MCC Settlement Upheld

The court of appeals for the seventh circuit held that a district court properly approved a settlement agreement dismissing a prison conditions class action suit over the objections of numerous plaintiffs. In 1991 prisoners at the Maximum Control Complex (MCC) in Indiana filed suit challenging numerous aspects of the control unit. [See PLN, Vol. 3, No. 8] After lengthy negotiations between class counsel and the Indiana DOC the suit was settled and approved by the court. See: Taifa v. Bayh, 846 F. Supp. 723 (ND IN 1994) [PLN, Vol. 6, No. 9]. Five prisoners objected to the settlement and appealed claiming the district court abused its discretion in approving the settlement.

The appeals court held the district court was well within its discretion when it approved the settlement in this case. At the outset the court noted that "federal courts naturally favor the settlement of class action litigation." However, where constitutional claims are involved the public interest may conflict with the parties' desire to settle a case and courts cannot approve a class actions settlement that either initiates or authorizes clearly illegal conduct.

Using that as a starting point the court analyzed the objecting plaintiffs' claims and rejected them. The ...

Evidence Required for Disciplinary Sanction, Sandin Questioned

A federal district court in Indiana refused to dismiss a prisoner's habeas corpus petition challenging his disciplinary segregation because it was not clear what constituted a deprivation sufficient to invoke due process. A hearing officer's failure to indicate the evidence relied on could violate due process if there was a due process liberty interest in remaining free from segregation.

Leon Thomas, an Indiana state prisoner, was infracted and found guilty of stabbing another prisoner. As a sanction he was sentenced to three years of disciplinary segregation. He filed a writ of habeas corpus in federal court (Indiana provides no state court review of prison disciplinary hearings) claiming that he was denied his right to due process during the disciplinary hearing.

The district court dismissed Thomas' claims that the hearing officer's refusal to call witnesses on his behalf or use a preponderance of evidence standard violated due process. The court held that the disciplinary officer's refusal to explain their reasons for their findings of fact violated his right to due process. There were no firsthand witnesses to the stabbing and no informant testimony was cited. The court was troubled by the fact that Thomas denied committing the ...

Pepper Spray Madness

[The author is an attorney in private practice in Seattle, Washington, and a frequent writer on police accountability issues. She is also on the Steering Committee of the National Coalition on Police Accountability. This article first appeared in the Spring 1996 Issue of COVERT ACTION QUARTERLY.]

Imagine that someone has sprayed oleoresin capsicum, a substance 600 times hotter than cayenne pepper, into your face, eyes and nostrils. Imagine that while this is happening, your hands are cuffed behind your back. Or you have asthma or bronchitis. Or a heart condition. Or you're drunk or just plain upset. Chances are, the pain will be intense, breathing will become difficult, your eyes will swell into blindness, you will become disoriented and fall to the ground. Fear and panic will set in. If you are unlucky enough to be in an altercation with the police and you are in restraints on your stomach, you may die.

Last summer, Javier Trejo didn't have to imagine. After his wife, Maria, called police to report that he was drunk and abusive, Orange County, California, sheriff's deputies subdued him with pepper gas and threw him in a holding cell. About an hour later, he ...

Pepper Spray Unsafe?

COPWATCH, a citizens' group in Berkeley, CA, has noted an increase of in-custody deaths, and has pointed to pepper spray as possibly causing or contributing to those deaths. According to Berkeley Police Department Captain Doran, however, police officials consider pepper spray a safe alternative to firearms and an indispensable tool in subduing suspects.

"Officers are often confronted with violent, dangerous situations," said Doran. "Until something else comes along, pepper spray is an important tool in subduing a suspect who might otherwise be a danger to officers or bystanders. We're pretty comfortable that it's not harmful to human beings." He cited an FBI study to back up his claim.

Special Agent Thomas Ward oversaw the FBI Firearms Training Unit at Quantico, Virginia, for several years. Under his direction, the Training Unit produced the 1991 "Quantico Studies," which declared pepper spray a safe, effective weapon for police use.

On February 12, Special Agent Ward pled guilty to accepting $57,000 in kickbacks from Luckey Police Products, which manufactures one of the most widely used brands of pepper spray. FBI officials are trying to determine how badly Ward distorted the pepper spray studies.

The American Civil Liberties Union recently called on ...

Indigents Entitled to Full Credit for Pretrial Detention

The court of appeals for the tenth circuit held that a defendant who is incarcerated prior to trial due to indigency (unable to afford bail) must be given full credit towards the minimum and maximum sentences he is convicted of. James Hall, a Colorado state prisoner, was arrested in 1977 and charged with sexual assault. Unable to post bail, he spent 219 days in jail before pleading guilty and being sentenced to an indeterminate sentence of 27 to 50 years. The trial court credited hall with 84 days towards the minimum term of his sentence but none towards the maximum sentence. Hall exhausted his state remedies claiming he was denied his right to equal protection of the law when his indigency caused him to remain incarcerated prior to trial and he failed to receive full credit for the time served against both his minimum and maximum sentences. The state court denied relief and Hall filed a writ of habeas corpus in federal court which was denied. The federal court also held Hall's claim was not ripe for review because he had not yet served the maximum sentence imposed.

The appeals court reversed and remanded the case to the lower ...

De Novo Review Required of Magistrate's Report

The court of appeals for the eighth circuit held that a district court's erroneous statement that no objections had been filed to a magistrate's report and recommendation constituted prima facie evidence that the district court did not perform the requisite de novo review of the report. Larry Grinder and Edward Loetel, Missouri state prisoners at the Moberly Correctional Center, filed suit claiming his eighth amendment rights had been violated due to exposure to Environmental Tobacco Smoke (ETS) within the prison. The defendants moved for summary judgment on qualified immunity grounds, claiming that until the supreme court decided Helling v. McKinney, 113 S.Ct. 2475 (1993) which identified excessive exposure to ETS as a violation of prisoners' rights, the law on this topic was not clear. They also claimed their post Helling conduct did not violate the law.

The evidence showed that the prison ventilation system was in poor repair and frequently malfunctioned; air filters were not installed; smoke entered the plaintiffs' cell and they suffered eye, nose and throat irritation, respiratory illness and an overall decline in health. The magistrate held that prior to Helling the defendants were entitled to qualified immunity. The magistrate recommended that the suit ...

Texas Shaving Rule Declared Illegal

A federal district court in Texas ruled that a prison rule requiring prisoners be clean shaven violated a Muslim prisoner's religious rights and enjoined the rule. Johnson Lewis, a Texas state prisoner and a Muslim, filed suit claiming that prison regulations requiring that all Texas prisoners be clean shaven violated his religious rights under the Religious Freedom Restoration Act (RFRA). During a hearing Lewis and a Muslim chaplain employed by the prison system testified. The chaplain claimed that no Islamic tenet required that male Muslims wear beards but acknowledged that some adherents believe that Islam requires its followers to follow the Sunnah, or way of the prophets, which includes wearing a beard.

The court analyzed Lewis's claim under the RFRA, 42 U.S.C. § 2000bb-1(b), and found that the rule requiring all prisoners to be clean shaven was a substantial burden on Lewis's religious rights, thus violating the RFRA. The court held that Lewis had met his burden of proof, i.e., that his religious belief was sincere and the religious basis of the burdened belief. "In the present case the burden placed upon plaintiff's religious practice is total. Plaintiff desires to grow a beard ...

Parolee's Jail Rights Discussed

The court of appeals for the fifth circuit addressed, for the first time ever, the question of what rights are retained by a parolee who is charged with a crime and is also held on a detainer. Steven Hamilton was on parole for various sex offenses when he was arrested for new offenses. While awaiting trial on the new charges his parole was revoked. Hamilton filed suit claiming police had fabricated evidence against him and that jail conditions denying him visits, recreation, mail, legal materials, phone access, sheets and showers violated his rights. The district court dismissed his suit as frivolous and the court of appeals affirmed.

The court quickly disposed of his § 1983 claims against police by noting they were barred by Heck v. Humphrey, 114 S.Ct. 2364 (1994) unless he could show his underlying conviction had been reversed, invalidated or otherwise called into question. Rather than simply address whether Hamilton's jail conditions claims should be analyzed under the Bell v. Wolfish, 441 US 520, 99 S.Ct. 1861 (1979) standard that applies to pretrial detainees and holds that they may not be punished at all and jail conditions must be reasonably related to the goal of ...

Missouri Haircut Rule Upheld under RFRA

Missouri Haircut Rule Upheld Under RFRA

The court of appeals for the eighth circuit reversed a federal district court ruling which had held that a Missouri DOC rule requiring prisoners to have short hair and banning sweat lodges violated the Religious Freedom Restoration Act (RFRA). In the June, 1995 issue of PLN we reported Hamilton v. Schriro, 863 F. Supp. 1019 (WD MO 1994) where the court made its ruling in favor of Mark Hamilton, a Native American prisoner. In its ruling the district court issued an injunction forbidding the MO DOC from enforcing its short haircut regulation and also requiring prison officials to establish a sweat lodge program.

The appeals court analyzed Hamilton's claims under the first amendment and held that he had failed to meet his burden of proof under O'Lone v. Estate of Shabazz, 482 US 342, 107 S.Ct. 2400 (1987) [which was explicitly overruled by the RFRA's passage]. The district court decided the claims solely on the RFRA, the appeals court explained it was going to rule on the constitutional claims as well because the lower court had indicated it would have ruled in Hamilton's favor under this standard as well ...

No Right to Assistance in Family Law

The court of appeals for the sixth circuit held that prison officials are under no obligation to provide prisoners with the assistance of counsel in child custody cases. This is the latest installment in the ongoing saga of Glover v. Johnson, a class action suit filed 20 years ago by women prisoners in Michigan claiming they had been denied access to the courts. Among the many orders issued over the years was one in which the district court ordered the MI DOC to contract with Prison Legal Services to provide the prisoner-plaintiffs with legal services, including in child custody disputes. In 1991 the DOC told the district court they planed to discontinue funding for such services because non-incarcerated citizens were not entitled to receive such assistance at no cost. In the December, 1995 issue of PLN we reported Glover v. Johnson, 850 F. Supp. 592 (ED MI 1994) where the court held the defendants in contempt finding they had willfully violated the 1991 order and entered an injunction enjoining them from changing or modifying the PLS staff without seeking leave of the court. The defendants appealed and the court of appeals reversed and remanded.

The appeals court held the district ...

Retaliation for Grievance Committee Participation Requires Trial

A federal district court in New York held that a prisoner who serves on a prison grievance committee cannot be retaliated against for assisting other prisoners in filing grievances. Jeffrey Alnutt, a New York state prisoner, filed suit claiming his first amendment rights were violated when prison officials retaliated against him after he was elected to the Inmate Grievance Resolution Committee (IGRC). Prior to his election Alnutt had never received an infraction. After the election guards began to systematically harass him, call him names, subject him to drug tests and deprive him of food, bedding, clothes and mail. On the defendants' motion for summary judgment the court dismissed Alnutt's claims that he had been given a false disciplinary charge, denied due process at the hearing and was transferred to another prison.

The court held that Alnutt had stated a claim requiring a trial concerning retaliation for his IGRC activities. The court held that IGRC activity was protected by the first amendment. Until now numerous courts have consistently held that individual prisoners who file administrative grievances are entitled to first amendment protection. "Admittedly, the facts of the present case are somewhat different from some of the cases involving an inmate ...

PI Granted in Haircut Claim

A federal district court in Kentucky granted a motion for a Preliminary Injunction (PI) to a Hasidic Jew whose claimed his religious beliefs were violated when prison officials forced him to cut his hair. Several Kentucky state prisoners in Protective Custody (PC) filed suit challenging various aspects of their confinement. This included a denial of outdoor exercise and that allowing PC and death row prisoners to exercise together violated their eighth amendment rights. The district court denied the PI on these claims because prison officials were in the process of building an outdoor exercise facility, thus they were not deliberately indifferent to the prisoners' eighth amendment rights. The prisoners failed to show how the mixed recreation endangered them as they did not claim to have been threatened or harmed.

Pursuant to Kentucky State Penitentiary Institutional Policy 10-0201 all segregation prisoners are required to have crewcuts while in segregation. One of the plaintiffs, Ronald Phipps, is an Orthodox Hasidic Jew. He claimed that the haircut policy requiring that his earlocks be cut violated his rights under the first amendment and the Religious Freedom Restoration Act (RFRA).

In granting the PI the court noted "It is significant that at least the Second ...

Court Responsible for Jury Demand

The court of appeals for the second circuit held that checking a box on a civil cover sheet constituted a timely demand for a jury trial. Tyrone Wright, a New York state prisoner, filed suit claiming he was beaten by prison guards. When Wright filed suit he did not include a jury demand in his complaint, but he checked a box on the civil cover sheet indicating he wanted a jury trial. The case eventually proceeded to trial before a magistrate, who ruled in favor of the guards, holding that Wright had waived his right to a jury trial. The appeals court reversed and remanded holding Wright was entitled to a jury trial.

In Favors v. Coughlin, 877 F.2d 219 (2nd Cir. 1989) the court held that a pro se plaintiff waived his right to a jury trial when he failed to timely serve his jury demand on the opposing parties. Like Wright, Favors had checked the box on the cover sheet but had not included it in his complaint. "Despite the similarity to Favors, we find that the outcome of Wright's case is determined by his in forma pauperis status. By granting Wright leave to pursue his ...

Complaint Can't Be Dismissed if Partial Filing Fee Paid

The court of appeals for the second circuit held that district courts cannot require indigent litigants to pay a partial filing fee and then dismiss their complaints as frivolous under 28 U.S.C. § 1915(d). Jerry Hughes, a New York state prisoner filed suit claiming a district attorney had committed perjury in his criminal appeal in state court. The district court required Hughes to pay a partial filing fee of $7.56. The court later denied Hughes permission to proceed in forma pauperis and dismissed the complaint as being legally and factually frivolous, in part because Hughes had filed and lost a civil rights action based on the same facts in another district.

The court of appeals reversed and remanded, noting it has approved the use of partial filing fees as a means by which to deter indigent litigants from filing frivolous complaints. The court held this was an alternative to dismissal under the IFP statute. Six circuits to address this issue have held that upon payment of a partial filing fee district courts must treat complaints in the same manner as those not filed in forma pauperis. Namely, they must be served on the defendants and cannot be ...

No FLSA Protection for Work Release Prisoners

The court of appeals for the fifth circuit held that neither the Federal Fair Labor Standards Act (FLSA) nor Louisiana law offered relief to a work release prisoner challenging a contractual provision requiring he contribute ten percent of his net earnings to a sheriff's victim compensation fund. Charles Reimonenq was a Louisiana county prisoner who participated in a work release program administered by the county sheriff. As a condition to participate in the work release program prisoners are required to pay ten percent of their net wages to an Elderly/Victim Compensation Fund set up by the sheriff. Reimonenq challenged this practice claiming it violated the FLSA because it violated its minimum wage standards and constituted an unenforceable contract. The district court rejected each of these claims and held that Reimonenq was not an employee of the defendant sheriff under the FLSA.

The appeals court rejected the claim that the sheriff was the prisoner's actual employer for FLSA purposes holding that the "economic reality" test normally applied in FLSA cases is inapplicable in the jailer-prisoner context. "...As a matter of law, a sheriff/custodian simply is not the 'employer' for purposes of the FLSA of inmates working in ...

Right to Witnesses and Court Access Well Established

A federal district court in Kansas held prisoners had a well established rights in 1984 to call witnesses at disciplinary hearings and to be free from retaliation for exercising their right of access to the courts. Jerry Smith, a Kansas state prisoner, had his briefcase searched prior to a trip to a state court. Before boarding the bus prison officials demanded to search the briefcase again. Smith refused and they confiscated the briefcase. Once Smith arrived in court he told the judge he could not proceed without his legal papers, the judge ordered prison officials to produce the briefcase. Upon returning to prison Smith was placed in segregation and issued several infractions for disobeying an order. Smith was denied witnesses at the various hearings, found guilty of all charges and sentenced to seven months in segregation and the loss of thirteen months good time. He filed suit and the district court granted summary judgment to the defendants. The court of appeals reversed at Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990). [See PLN, Vol. 1, No. 3.] This case involves the defendants' pretrial motion for summary judgment, which the court denied.

The court held that prisoners have a ...

News in Brief

AL: Gabel Taylor was shot and killed on July 18, 1996, after winning a bible knowledge contest. Taylor and his killer were comparing their knowledge of the bible. When Taylor won his opponent became angry, left, returned with a gun and shot him.

CA: On August 13, 1996, 27 prisoners were injured in a brawl between 70 black and Hispanic detainees in the Pitchess Detention Center in Castaic. No cause was given for the disturbance.

CA: On June 17, 1996, at 4:30 PM a fight between 40 prisoners broke out at the minimum security Salinas Valley State Prison. Several prisoners suffered minor injuries. No cause was given for the fight.

CA: On August 12, 1996, police arrested James Ferris, a Chino prisoner serving a life sentence for murder, and charged him in the bludgeoning death of Ostark Youth Training School counselor Ineasie Baker, whose body was found in a landfill. Police claim Ferris killed Baker in the prison, then dumped the body in the garbage where it was then taken from the prison to the landfill.

CA: On July 15, 1996, federal judge George King sentenced former INS guard Paina Moeai to 21 months in prison for assaulting an ...

Court Okays Disclosure of AIDS Status

The court of appeals for the seventh circuit held that prison officials may casually disclose a prisoner's AIDS status to other prisoners and staff but that denying barber services is unconstitutional. Dennis Anderson was an Illinois state prisoner with AIDS. The prison warden told a guard that Anderson had AIDS and the guard in turn told other prisoners and guards that Anderson was gay, that they could get AIDS from him and should stay away from him. The same guard also denied Anderson barber and yard privileges because of his AIDS status. Anderson filed suit claiming the defendants had violated his federal and state right to privacy, including the Illinois AIDS Confidentiality Act, 410 ILCS 305, by revealing that he was infected with AIDS. He also claimed violation of his rights to due process and equal protection concerning the barber and yard incidents. The defendants filed a motion to dismiss, claiming they were entitled to qualified immunity. The district court denied the motion holding there were not enough facts in the record to determine whether the defense of immunity was valid. The defendants appealed and the seventh circuit reversed in part and affirmed in part.

Anderson died during the ...


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