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Prison Legal News: November, 1996

Issue PDF
Volume 7, Number 11

In this issue:

  1. The Fundamental Right of Self-Defense in Prison (p 1)
  2. From the Editor (p 3)
  3. The Pelican Bay Factor (p 4)
  4. Notes from the Unrepenitentiary (p 5)
  5. Prison Tragedy Results in Settlement (p 5)
  6. Overview (p 6)
  7. Filing Fee Requirement Not Retroactive (p 7)
  8. Louisiana Prison System Back Under Court Supervision (p 7)
  9. PLRA Applied Retroactively to Filing Fees (p 8)
  10. 2nd Circuit Applies PLRA to IFP Litigants (p 8)
  11. Prior Frivolous Suits Count for PLRA (p 9)
  12. PLRA Application to Mandamus Discussed (p 9)
  13. PLRA Filing Fees Don't Apply to Habeas Petitions (p 9)
  14. Three Strikes Applied (p 10)
  15. A Matter of Fact (p 10)
  16. State Moves to Lift Federal Court Order at Washington State Penitentiary (p 11)
  17. Criminal Injustice: Confronting the Prison Crisis (p 11)
  18. Eight Corcoran Guards Fired, Five Reinstated (p 12)
  19. Ohio "Eases" Prison Overcrowding (p 13)
  20. Prison Labor and Private Profit (p 13)
  21. WSR Smoking Suit Settled (p 14)
  22. In Harms' Way: Texas Prisoner Shot (p 14)
  23. Criminal Prosecutors Get Their Day In Court (p 15)
  24. Texas Taxes Spent on DCJ Luxuries (p 15)
  25. Gas Chamber Found Unconstitutional (p 16)
  26. Publisher Entitled to Notice of Magazine Censorship (p 16)
  27. Disciplinary Records Inadmissible Evidence (p 17)
  28. No Right to Unmonitored Prison Calls (p 17)
  29. Macing and Restraints State Eighth Amendment Claim (p 18)
  30. Satanist Claim Goes to Trial (p 19)
  31. Nevada Prisoners Have Liberty Interest in Disciplinary Hearings (p 19)
  32. News in Brief (p 20)
  33. Guard Caught Holding the Knife (p 21)

The Fundamental Right of Self-Defense in Prison

by Robert F. Nelson

[Editor's Note: In 1994 the court of appeals for the seventh circuit decided Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994) which held that an Indiana state prisoner had no constitutional right to self-defense in prison. The case arose after the plaintiff was ...

From the Editor

Welcome to another issue of PLN. As the holiday season approaches readers might want to consider purchasing gift subscriptions of PLN for friends and relatives. PLN continues to be reader supported and increasing our circulation is the only way we can significantly reduce our per issue costs.

We apologize for ...

The Pelican Bay Factor

[Editors' Note: The author submitted this manuscript in May of 1996. Because of our article backlog and space limitations we are only now printing it. The issues outlined in this article, however, have since received coverage in the mainstream press. We regret not publishing the article sooner.]

Prior to 1987 ...

Notes from the Unrepenitentiary

I've been thinking a lot about Attica, as we pass the 25th anniversary of the rebellion and the massacre. Remembering how the courage of the men of D Yard transformed all our sorrow and anger at the assassination of George Jackson into energy, struggle and hope. Remembering the inspiration ...

Prison Tragedy Results in Settlement

A 28 year old ex-convicted murderer, Troy Christian, (who was released from prison in March 1993 at 24), received a $1.5 million settlement for being permanently disabled, both mentally and physically, due to California Correctional Facility (CCF) and the California Medical Facilities (CMF) inadequate treatment and negligence.

Davey, who ...

Overview

by the National Prison Project

[Editor's Note: In the July, 1996, issue of PLN we reported enactment of the Prison Litigation Reform Act (PLRA) into law. The PLRA was aimed at substantially reducing prisoners' ability to petition the courts as well as eliminating the courts' power to correct constitutional ...

Filing Fee Requirement Not Retroactive

The court of appeals for the tenth circuit held that the Prison Litigation Reform Act (PLRA) did not have retroactive effect as applied to filing fees for indigent litigants. David White, a Colorado state prisoner, filed suit after he was denied access to a jail law library for more than ...

Louisiana Prison System Back Under Court Supervision

The court of appeals for the fifth circuit affirmed a district court order which vacated a prior order terminating the court's jurisdiction over a consent decree governing the Louisiana prison system. In doing so the appeals court held that the Prison Litigation Reform Act (PLRA) was not triggered as ...

PLRA Applied Retroactively to Filing Fees

The court of appeals for the second circuit held that the Prison Litigation Reform Act's (PLRA) provisions requiring payment of filing fees applies retroactively to civil appeals filed by indigent pro se prisoners before the PLRA's enactment. The case involves four unrelated prison civil rights cases in which ...

2nd Circuit Applies PLRA to IFP Litigants

In the July, 1996, issue of PLN we reported the passage of the Prison Litigation Reform Act (PLRA) which significantly changed the manner in which indigent prisoner litigants filed civil suits and appeals. In the first circuit court ruling to extensively discuss the PLRA, the second circuit outlined how it ...

Prior Frivolous Suits Count for PLRA

The court of appeals for the tenth circuit held that writs of mandamus fall within the scope of filing fee requirements imposed by the Prison Litigation Reform Act (PLRA), Public Law 104-134, 110 Stat. 1321 (April 26, 1996). The court also held that suits dismissed as frivolous prior to the ...

PLRA Application to Mandamus Discussed

The court of appeals for the second circuit held that the filing fee requirements of the Prison Litigation Reform Act (PLRA) apply to writs of mandamus filed in civil cases but not in criminal proceedings. Paul Nagy is a detainee undergoing criminal trial in federal court. Nagy filed a motion ...

PLRA Filing Fees Don't Apply to Habeas Petitions

The court of appeals for the second circuit has held that the Prison Litigation Reform Act's (PLRA) imposition of filing fee payment obligations on civil actions filed by prisoners do not apply to habeas corpus petitions. While federal habeas corpus petitions are usually considered civil actions for procedural purposes ...

Three Strikes Applied

The court of appeals for the seventh circuit discussed the application of the Prison Litigation Reform Act's (PLRA) provision requiring full payment of filing fees after three suits have been dismissed as frivolous, malicious or failing to state a claim upon which relief can be granted. Lokmar Abdul Wadood ...

A Matter of Fact

The U.S. Department of Justice (DOJ) collected nearly $550 million in assets from civil forfeiture from "criminals" (many of whom were not convicted of criminal offenses) in 1994, and shared almost $235 million of this booty with state and local law enforcement agencies.

In 1994, the secret Foreign Intelligence ...

State Moves to Lift Federal Court Order at Washington State Penitentiary

by David Fathi

The State of Washington has filed a motion to vacate a long-standing federal court order in Hoptowit v. Ray, which governs conditions at the Washington State Penitentiary at Walla Walla. Whether the state succeeds will depend largely on whether the court finds that constitutional violations at the ...

Criminal Injustice: Confronting the Prison Crisis

Review by Daniel Burton Rose

This collection is an excellent primer on many of the issues and struggles currently being waged by prisoners and their supporters. Previously distributed in prison activist circles as With the Power of Justice in our Eyes, edited by Eli Rosenblatt of the Prison Activist Resource ...

Eight Corcoran Guards Fired, Five Reinstated

On the morning of May 15, 1995, five prisoners at the Calipatria state prison stormed an A Facility program office and stabbed a sergeant. Other guards rushed to help and a wild brawl ensued. Eight guards were injured in the melee. [See: 'CA Prisoners Assault Prison Office," PLN Vol. 6 ...

Ohio "Eases" Prison Overcrowding

On June 30, 1996, Ohio had the second- or third-most overcrowded prison system in the country with prisoners packed in at 170.1 percent of capacity. At the stroke of midnight, however, like magic, that figure dropped to 138.3 percent, placing the state eighth or ninth in overcrowding.

Did ...

Prison Labor and Private Profit

Wall Street wheeler-dealer Irwin Jacobs, known as "Irv the Liquidator" for his leveraged-buyout exploits in the 1980s, is always looking to turn a profit. One of his current business ventures refurbishes and repackages items that customers have returned to retail stores. When Jacobs looks at the number of prisoners languishing ...

WSR Smoking Suit Settled

In 1991 prisoners at the Washington State Reformatory (WSR) in Monroe, WA, filed suit challenging their forced exposure to Environmental Tobacco Smoke (ETS), AKA second hand smoke. On February 13, 1996, the suit was settled.

The essence of the settlement was that WSR would implement and enforce a no-smoking policy ...

In Harms' Way: Texas Prisoner Shot

On July 8, 1996, 21-year-old Texas prisoner Daniel Miguel Avellaneda was fatally shot by Texas Department of Criminal Justice (TDCJ) prison guard Neal Harms. The TDCJ identified Harms as a 35-year-old guard who had no disciplinary infractions in his 14 months on the job.

Avellaneda, a farm worker from Mexico ...

Criminal Prosecutors Get Their Day In Court

In March 1996, U.S. District court judge Sandra Brown Armstrong, in Oakland, California, dismissed "with prejudice,'' the criminal charges against four Dublin, California federal prisoners because of what she termed "serious misconduct" by prosecutors.

On February 5, 1996, judge Armstrong issued a 43 page order against two assistant U ...

Texas Taxes Spent on DCJ Luxuries

Cosmetic improvements were made on a state-owned house in Huntsville - home of a Texas prison official - at public expense. The house is one of the 870 prison houses that the state owns and provides for Texas Department of Criminal Justice executives and employees.

The house was occupied by William C ...

Gas Chamber Found Unconstitutional

The court of appeals for the ninth circuit affirmed a lower court ruling that held the California gas chamber was an unconstitutional form of execution that violated the eighth amendment. In the November, 1995 issue of PLN we reported Fierro v. Gomez, 790 F. Supp. 966 (ND CA 1992). The ...

Publisher Entitled to Notice of Magazine Censorship

The court of appeals for the fourth circuit held that publishers are entitled to notice and an opportunity to be heard when their publications are censored by prison officials. Virginia DOC Operating Procedure 852 sets forth the process by which censorship of prisoner mail and publications is accomplished. When prison ...

Disciplinary Records Inadmissible Evidence

The court of appeals for the second circuit vacated a jury verdict in favor of prison guards holding that the prisoner plaintiff's prison disciplinary record should not have been admitted as evidence. Christopher Hynes, a New York state prisoner, filed suit claiming prison guards chained and beat him in ...

No Right to Unmonitored Prison Calls

The court of appeals for the ninth circuit held that pretrial detainees and prisoners retain no statutory or constitutional right to privacy in their outgoing phone calls. From the outset readers should note this is a criminal case, not a civil rights action challenging a prison or jail phone monitoring ...

Macing and Restraints State Eighth Amendment Claim

The court of appeals for the fourth circuit held that not allowing a prisoner to wash after being maced and placing him in four point restraints created a fact question requiring a trial to determine if his eighth amendment rights were violated. This case will be useful to anyone litigating ...

Satanist Claim Goes to Trial

A federal district court in New York held that prison officials failed to show any legitimate penological interest in denying a Satanist the right to practice his faith in prison. Alfredo Ramirez is a New York state prisoner and a Satanist. He filed suit under the Religious Freedom Restoration Act ...

Nevada Prisoners Have Liberty Interest in Disciplinary Hearings

A federal district court in Nevada held that Nevada state law creates a liberty interest for prisoners accused of disciplinary misconduct. After the US supreme court decided Sandin v. Connor, 115 S.Ct. 2293 (1995) the question of whether a prisoner retains any due process rights in disciplinary hearings hinges ...

News in Brief

AZ: In September, 1996, the DOC terminated its military style boot camp, stating it did not work. A study indicated that only 22% of those who complete the four month boot camp in lieu of serving traditional prison time were not re-arrested after graduation. That was half the "success rate ...

Guard Caught Holding the Knife

A former Pontiac Illinois prison guard, Rick Householder, 41, was convicted on June 25, 1996 of possessing a homemade knife. Householder, who was once named "Officer of the Year" for his skill at finding contraband weapons, was convicted of possession of contraband in a state penal institution and criminal damage ...