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Prisoner Education Guide

Prison Legal News: November, 1996

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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 infracted and punished for "fighting' after he warded off an attempted rape by another prisoner. As the dissent made clear in that case, the ruling stands for the prospect that prisoners must subject themselves to victimization at the hands of other prisoners and be left with no recourse from a state that fails to protect them or allow them to protect themselves. PLN subscriber Robert Nelson analyzes Rowe in the following article. He will receive a complimentary one year subscription to PLN for his well written article.]

For you now it remains to rival what they have done and, knowing the secret of happiness to be freedom and the secret of freedom a brave heart, not idly to stand aside from the enemy's onset.

-- Pericles' Funeral Oration, Thucydides (431 B.C.)

Self preservation is probably the most basic and tyrannical of all human instincts. Thomas Jefferson observed that "the ...

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 delay in getting the October issue out. We had a computer problem that held things up.

In the past our "News in Brief" column (which I put together) and the "A Matter of Fact" column (which Dan puts together) have often contained items not directly related to prisons, such as police corruption, national economic statistics, etc. In an effort to make more room for other stories we are going to try to shorten those columns by sticking to a narrower, prison focus. This presented something of a dilemma in that we believe prison issues cannot be separated from the larger economic and political picture. Police corruption illustrates why many are in prison as does widening economic status. That is why we frequently mention other publications that, while not directly prison related, may be of interest to our readers. We are also going to try to run more articles dealing ...

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, the California Department of Corrections (CDC) had a policy which segregated alleged members of rival prison gangs and groups while assigned to the Security Housing Unit (SHU) exercise yard. This policy was designed to minimize prison violence, and based on the available statistics, this was an effective policy. But 1987 marked a change in this policy when New Folsom State Prison partially integrated the SHU exercise yard. This partial integration resulted in a significant increase in prison violence.

It wasn't until 1988 that the integration became complete. Corcoran State Prison forced all rival groups together on the same exercise yard, and this resulted in a dramatic and rapid increase in prison violence. Corcoran was averaging 2-4 assaults a day.

At that time, most of us didn't understand what was happening, but those of us who have been very active in the Prisoner Rights Movement knew something was not ...

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 of seeing unity built, combating the divisions of race and class the state normally feeds on. Remembering how we hoped against hope, argued against unreason that the brutal assault would not come. Remembering the demand of the brothers, spoken by L.D. Barkley, that "we are men, we are not beasts, and we don't intend to be driven or beaten as such."

Attica was a rebellion against all odds -- a message written in blood: human dignity will not allow itself to be crushed. A slogan the Vietnamese used in fighting for their national liberation and independence -- "the spirit of the people is greater than the man's technology" -- came alive inside the walls of D Yard. For almost five days a cooperative, peaceful, democratic society existed in D Yard, while the prisoners held power. The demands were so basic, and the administrations' long-standing refusal to meet them so clearly ...

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 ...


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 violations when found. Ironically, since the PLRA's passage in April of this year there has been a veritable explosion of prison litigation as court's interpret its application to pro se prisoner litigation as prison officials across the country rush to vacate long standing consent decrees and injunctions.

Beginning with this issue of PLN we will report all PLRA cases shortly after they are published in order to keep PLN readers better informed on this new and developing area of prison law. To avoid confusion we will generally report PLRA cases as they are published in the advance sheets. Readers are encouraged to keep us posted on unpublished PLRA rulings that may be of interest to a national audience. The following PLRA summary was written by the National Prison Project and is current as of August 29, 1996.]

Since the Prison Litigation Reform Act (PLRA) was passed on April ...

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 two hours per week. The district court granted him In Forma Pauperis (IFP) status and White commenced the suit which was later dismissed on a motion for summary judgment.

On May 24, 1995, White filed his notice of appeal and motion for IFP status in the district court in order to proceed on appeal. The district court denied the IFP motion, holding the appeal was not in good faith. White appealed and the tenth circuit granted his IFP motion.

In doing so the court acknowledged its handling of the IFP motion was governed by the PLRA. "Our review of the Act leads us to conclude the amendments to 28 U.S.C. § 1915 do not apply when, as in this case, the prisoner/appellant filed his notice of appeal before April 26, 1996, the date president Clinton signed the Act into law. We therefore apply the law in effect prior ...

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 no prospective relief had yet been ordered by the lower court. In 1971 Louisiana state prisoners began a class action suit challenging overcrowding, brutality, inadequate medical care and numerous other conditions of their confinement. Since then the case has been going up and down the court system. Eventually the case was resolved by a consent decree that settled the problems raised in the suit. Signed in 1983 the consent decree automatically expired in 1989 but was extended several times after that by the district court.

Over a several year period the district court, on the LA DOC's motion, modified the decree seven times. In 1995 the court held a hearing which reinstated nine LA prisons, previously released from the decree, to court supervision to ensure they complied with decree provisions on overcrowding. The main causes of the renewed overcrowding were an increasing prison population at or near the capacity ...

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 the prisoners filed the notice of appeal and motion to proceed in forma pauperis (IFP) prior to the PLRA's passage on April 26, 1996. The PLRA itself does not state whether it may be applied retroactively.

In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994) the supreme court set forth the standard for determining whether a statute has retroactive effect that cannot be applied pending litigation absent clear congressional approval.

"The rationales outlined in Landgraf strongly indicate that the fee payment obligations of the PLRA should be applied to appeals in which the notice of appeal was filed before the Act's effective date." The court held that the PLRA's fee provisions were procedural and did not implicate any property interest because they were entirely avoidable: prisoners can simply dismiss their appeal if they do not believe the $105 filing fee is ...

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 intends to apply the PLRA in that circuit. Because this ruling applies to all pending and future motions to proceed in forma pauperis (IFP), indigent litigants in the second circuits should familiarize themselves with this ruling. Readers should note the PLRA's fee provisions apply only to prisoner litigants seeking IFP status pursuant to 28 U.S.C. § 1915, to file suits or appeals without prepayment of court fees. Prisoner litigants can avoid the new hurdles imposed by the PLRA simply by pre-paying the filing fee.

The PLRA amended § 1915 by requiring full payment of filing fees by prisoner litigants by subjecting prisoners' trust fund accounts to periodic partial payments. The initial payment is 20% of a) the average monthly deposits for the past six months or b) the average monthly balance in the account for the past six months, whichever is greatest, unless the prisoner has no assets. Subsequent ...

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's enactment could be used to deny In Forma Pauperis (IFP) status under the PLRA's "Three Strikes" provision. Clovis Green is a Colorado state prisoner and "a well known 'frequent filer' in federal courts," with the dubious distinction of perhaps being "the most prolific prisoner litigant in recorded history." See: In Re Green, 669 F.2d 779 (DC Cir. 1981).

When the PLRA was passed it amended 28 U.S.C. § 1915(g) to prevent prisoners from proceeding IFP (without pre-payment of the court filing fees) if three or more prior suits had been dismissed as frivolous, malicious or for failure to state a claim. Since Green has had, literally, hundreds of suits dismissed for those reasons the question facing the court was whether those prior dismissals applied to post-PLRA IFP applications. In this case Green was seeking a writ of mandamus requiring a district court to promptly ...

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 for recusal against the district court judge, when the judge didn't rule on the motion fast enough Nagy filed a writ of mandamus in the appeals court for an order to compel the judge to rule on the recusal motion. Nagy filed his appeal in forma pauperis.

The PLRA applies to "civil actions" but neither the text nor the legislative history of the PLRA indicate whether petitions for writs of mandamus are to be considered "civil actions for PLRA purposes, namely, whether the full filing fee must eventually be paid or whether it can be waived by the court.

"It is reasonable to assume that Congress wished to apply the PLRA's deterrent effect to prisoner's complaints, regardless of the type of pleading filed by the prisoner to obtain relief. Thus, if a prisoner, contemplating the filing of a complaint against prison officials under 42 U.S.C ...

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, the court held that for filing fee and PLRA purposes they are not.

"We conclude that congress did not intend the PLRA to apply to petitions for a writ of habeas corpus. First, the PLRA was aimed primarily at prisoners' suits challenging prison conditions, many of which are routinely dismissed as frivolous. There is nothing in the text of the PLRA or its legislative history to indicate that Congress expected its filing fee payment requirements to apply to habeas corpus petitions. Second, we note that congress has endeavored to make the filing of a habeas corpus petition easier than the filing of a typical civil action by setting the district court filing fee at $5, compared to the $120 applicable to civil complaints .... It is not likely that congress would have wished the elaborate procedures of the PLRA to apply to a habeas corpus petition just to ensure partial, monthly ...

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 is an Indiana state prisoner characterized by the seventh circuit as a "frequent filer." The only exception to paying full filing fees after a plaintiff has had three suits dismissed for being frivolous, malicious or failing to state a claim is if the plaintiff is under "imminent danger of serious physical injury."

Abdul Wadood has had at least five frivolous appeals dismissed by the seventh circuit since the PLRA was signed into law on April 26, 1996. The court held that the PLRA is not impermissibly retroactive as applied to previously dismissed suits because it did not change the legal consequences of actions preceding its enactment. 28 U.S.C. § 1915 had only excused prepayment of docket fees for indigent litigants. "A litigant remains liable for them, and for other costs, although poverty may make collection impossible."

The PLRA requires indigent prisoners to make partial payments until the filing fee ...

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 Surveillance Court, housed in a windowless chamber within the DOJ, approved 576 "national security" wiretaps; that same year DOJ prosecutors obtained 554 wiretaps for criminal investigations. In 1995 the number of "national security" wiretaps jumped to 697, and this year it could exceed 800 - compared to 340 wiretaps authorized in the last year of the Bush administration.

Since Clinton took office the FBI's budget has increased by 53 percent and the DEA's has jumped 33 percent. Both agencies are slated for large increases in the 1997 budget, and over the next two years (1997-98) the FBI plans to hire some 2,000 new agents nationwide.

Between 1979 and 1990, state government spending on prison construction increased 612 percent (adjusted for inflation). Between 1982 and 1992, state governments built 455 new prisons.

Between 1984 and 1994, California's colleges and universities cut 8,000 jobs. Meanwhile the California Department ...

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 Penitentiary have been corrected, and are not likely to recur.

History of the Lawsuit

In 1979, after a guard was killed, resulting in a long lockdown and a report by the American Correctional Association (ACA) finding that the prison was out of control, 15 prisoners at the Penitentiary filed a class action lawsuit in federal court, charging that conditions at the Penitentiary violated the Constitution. After trial, the court found numerous unconstitutional conditions, including overcrowding, violence by both prisoners and guards, inadequate medical care, and unsafe physical facilities. The court issued an order to the state to correct these conditions.

The state twice appealed the court's decision to the federal court of appeals. See Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), and Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985). However, most of the court's order was eventually upheld by the court of ...

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 Center (PARC), this fine work includes sections on AIDS in prison, women in prison, the death penalty, political prisoners and POWs, and the national proliferation of control unit prisons. It also provides detailed analyses of the greater societal function prisons serve. Criminal Injustice is a necessary resource for all those working against the horrors of the prison industrial complex. 400 pages. ISBN 0-89608-539-2. $18.00. 1996. Available from: South End Press, 116 Saint Botolph Street, Boston MA 02115. $3 shipping and handling for the first book, 75¢ thereafter.

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. No. 9]. As reported in that article, the seemingly "senseless" attack was apparently conducted in retaliation by members of the East Side Crips for the beating by guards of one of their members earlier that same day.

On June 21, 1995, a busload of 36 Calipatria prisoners was transferred to Corcoran State Prison, home to Southern California's 'supermax" (similar to Pelican Bay up north). About 30 Corcoran guards were on hand to greet the bus. Exactly what happened next is difficult to determine. Most of the following narrative is derived from newspaper accounts (based on "department records").

One by one the 36 shackled Calipatria prisoners were grabbed, some by their testicles, and choked, punched and thrown off the bus. One prisoner's ribs were broken, a window was shattered with the head of another. Guards banged one prisoner's face off a concrete wall and stuffed a towel down ...

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 Ohio throw open its prison gates that night and let 6,170 of its 45,105 convicts stroll into the cool night air? No. The morning count on July 1, 1996 revealed that all 45,105 prisoners were still caged. How is it possible?

"We still have the same number of inmates and the same number of guards," said Ohio Department of Rehabilitation and Correction (ODORC) spokesperson Joe Andrews. "It's just that the space is counted differently."

Effective July 1, 1996, the state of Ohio adopted new standards from the American Correctional Association (ACA) prescribing how much "free space" each prisoner must have in a cell or dormitory.

The old standard was 50 to 60 square feet per prisoner, but that included space taken up by the bed, locker and desk. The new standard is 25 square feet of open floor space per prisoner exclusive of bed and other ...

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 in our nation's rapidly expanding prison system, he sees one thing: cheap labor for his refurbishing business.

Two years ago Jacobs approached prison officials in Minnesota, seeking to negotiate a deal allowing him to set up shop in that state's prisons and hire prisoners as workers. Minnesota decided to let the Liquidator make use of prisonerlabor, provided that Jacobs' company paid for the space, utilities, maintenance of equipment, janitorial services, and security measures needed to run his enterprise. The Liquidator didn't find the terms offered by Minnesota officials sufficiently lucrative, though. He turned them down.

On the make for a better slave-labor deal, Jacobs sniffed around for the one asset most crucial to successful negotiating, a state government that's for sale. Wisconsin's Republican Governor Tommy "All Power to the Highest Bidder" Thompson is well known for his auctioneer-like approach to doling out state contracts. Irv ...

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 by declaring "B" unit, (a 158 cell unit in the 700 cell prison) a non-smoking unit. This included posting no smoking signs throughout the unit; infracting prisoners found smoking and transferring smokers out and non-smokers into the unit. The no smoking rule applies to staff, volunteers and guests as well as prisoners in the unit.

In the event B unit is closed longer than seven days the state agrees to make a "reasonable effort" to arrange alternative non smoking living arrangements for prisoners housed in the unit.

The settlement applies only to prisoners at WSR; prisoners transferred out of WSR have no enforceable rights under the agreement. The agreement does not prohibit any plaintiff in the case from initiating a new suit based upon a cause of action accruing after the termination of the suit. The suit did not receive class certification which means other WSR prisoners who weren't ...

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, was serving a three-year sentence at the maximum-security French Robertson Unit in Abilene for an assault conviction stemming from a domestic dispute. He and 19 other prisoners were on the "No. 13 Hoe Squad," which was hauling dirt from the Middleton Unit to the Robertson Unit. According to Harms, as the prisoners were pushing a trailer across a ditch, Avellaneda stopped working, made an obscene gesture, uttered an obscenity, jumped over an electric wire and started running. Harms said he twice shouted at Avellaneda to stop, fired a warning shot in the air and then issued a third oral order to halt.

"The inmate turned around, running backward, flipping me off again," Harms told TDCJ Internal Affairs Division and Texas Ranger investigators. "I then fired a second shot toward the inmate's center mass, and the inmate then fell to the ground."

The bullet hit Avellaneda between the eyes. He ...

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.S. Prosecuting Attorneys. Veteran prosecutor C. David Hall and Kimberly Briggs, along with the prosecuting team. However, Briggs was not implicated in the judge's order and was, in fact, interviewed as a witness by the Department of Justice's Office of Professional Responsibility, which is investigating Hall's performance in the case.

The order contained a chastisement for a host of prosecutorial violations and misconduct, regarding the four Dublin, CA federal prisoners who were accused, indicted and tried for an alleged plot to escape from prison. The government's case was filled with lavish fantasies and grandiose schemes of how the four prisoners were to obtain their freedom.

According to dismissed federal indictments, Kenneth Edward Elliot (a 43 year-old Oakland man and one of the four convicts accused of the 1994 attempted escape), Rafael Cornejo (drug co-defendant), Miguel Barrenchea, and 60 year-old Charles Hardin plotted to smuggle C-4 explosives ...

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. McCray when the remodeling was done. McCray, who paid no rent or utilities, had to vacate the house by the end of July after being fired in June from his $90,000 a year job for his involvement in the VitaPro scandal. McCray was one of three TDCJ officials who lost their jobs over the VitaPro scandal.

Some of the $9,000 home improvements on the house that McCray requested and had done shortly after he moved in, paid for with tax money, was for converting a living room closet into a bar, refinishing wood floors, and for roll out shelving in the kitchen. These requests, as well as structural repair requests, were made in October 1994.

In May 1995 McCray even requested that wiring for a hot tub be installed at public expense. He later withdrew the request when the warden would not approve it. Approval for all repairs ...

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 case involves several death row prisoners in California who filed suit under 42 U.S.C. § 1983 claiming that the means of execution used in California, the gas chamber, violated the eighth amendment's ban on cruel and unusual punishment. The district court agreed and the appeals court affirmed.

At the outset the court held that methods of execution can be challenged in civil rights suits under § 1983. When death sentenced prisoners challenge a method of execution the court's inquiry will be whether the risk of pain is excessive. In this case the district court properly relied on expert testimony, witnesses and execution records which showed prisoners took at least two minutes to lose consciousness and in the interim suffered horrible pain caused by cyanide induced cellular suffocation.

The court noted that this ruling was contrary to recent rulings upholding the gas chamber in Maryland and Mississippi. See: Hunt ...

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 officials decide to censor a publication they must make a written record of the decision, inform the prisoner of the decision and their right to appeal the censorship. No provision exists to notify the publisher or sender of rejected publications about the censorship or provide them with an opportunity to appeal.

Montcalm Publishing Corporation publishes Gallery, a sexually explicit monthly magazine. The magazine has never been held to be obscene in any court action to which Montcalm was a party. Two Virginia prisoners who were subscribers to Gallery were told they would not be allowed to receive the June and September, 1992, issues of the magazine based, not on the photos contained in it, but on some of its written content. They filed suit, and Montcalm later intervened upon learning that litigation was pending.

The district court granted summary judgment to prison officials, upholding both the VA DOC's obscenity ...

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 retaliation for complaining about prison conditions. The case went to trial and the prison guard defendants sought to enter 15 disciplinary reports received by Hynes in the past, supposedly to demonstrate his "character." Hynes objected and the trial court allowed only five of the reports into evidence. In closing arguments the defendants emphasized that the jury should consider Hynes's prior disciplinary record in weighing the evidence. The jury then returned a verdict in favor of the defendants.

The appeals court vacated and remanded for a new trial, without the disciplinary reports. The court gave an extensive discussion to Fed.Rul.Evid. 404(b) which does not allow character evidence to be admitted in federal proceedings. Numerous evidentiary rulings involving prison civil rights cases are quoted. The general proposition is that "it is error to admit an inmate's disciplinary record to support the inference that he had a 'penchant ...

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/recording policy. Jeffrey Van Poyck was placed in the Metropolitan Detention Center (MDC) on bank robbery charges. Upon arrival he signed forms acknowledging all phone calls were recorded and monitored and that by signing the form he was consenting to the recording. After signing the form Van Poyck duly used the phone and promptly incriminated himself. The district court denied his motion to suppress the incriminating recordings. The appeals court affirmed.

The court analyzed Van Poyck's claims under the fourth amendment and concluded that prisoners and detainees have no subjective right to privacy in their outgoing calls. Numerous cases where courts have declined to suppress incriminating prison phone calls were cited. "We hold that any expectation of privacy in outbound calls from prison is not objectively reasonable and that the Fourth Amendment is therefore not triggered by the routine taping of such calls." The court also noted that Van ...

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 the use of chemical agents or in cell restraints. Sylvester Williams, a South Carolina prisoner, was in a segregation unit when prison guards sprayed him with mace after he threw water out of his cell's food slot to protest another prisoner's treatment. After being maced Williams, and five other prisoners, were placed in bare cells and chained by their hands and feet to a bare metal bunk. Before and after being chained Williams repeatedly asked for medical attention and an opportunity to wash the mace from his face and body. Williams was kept like this for eight hours. Williams filed suit under 42 U.S.C. § 1983 claiming his eighth and fourteenth amendment rights were violated. The defendants moved for summary judgment claiming Williams had failed to state a cause of action. The district court dismissed the claim.

The court of appeals affirmed in part, reversed in part ...

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 (RFRA), 42 U.S.C. § 2000bb, after prison officials refused to recognize Satanism as a bona fide religion or allow him to possess items such as a three inch metal bell in order to perform religious rituals. The NY DOCS claims that any items openly depicting Satanism are a threat to prison security since they could, ostensibly, provoke violent confrontations between prisoners. The defendants moved for summary judgment, claiming they were entitled to judgment as a matter of law because Satanism is not a religion. Their motion was denied and the case set for trial.

In its ruling the court noted that, contrary to the defendants' assertion, the DOCS routinely confers "recognition" on religions and, more importantly, refuses to grant such recognition. "Thus, the failure of DOCS to 'recognize' less traditional religions appears to have a dramatic impact on the adherents' ability to exercise their religious beliefs without interference and ...

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 on whether or not the state has created a liberty interest, usually involving good time credits. One effect of Sandin was to call into question what had been well established cases involving prisoner liberty interests.

In this case two prisoners were infracted for homicide. After learning at their criminal trial that the warden had instructed the hearing officer to find them guilty of the infraction, they filed suit contending their due process rights under Wolff v. McDonnell, 418 US 539, 94 S.Ct. 2963 (1974) were violated at the disciplinary hearings. Federal courts in Nevada had previously held that Nevada prisoners had a liberty interest in their good time credits. See: Layton v. Wolff, 516 F. Supp. 629 (1981) and Pella v. Adams, 638 F. Supp. 94 (1986). The court held that in light of Sandin it was necessary to clarify whether Nevada prisoners retained that right to due process ...

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" of 45% for prisoners released from traditional prisons.

Belize: On June 24, 1996, Cook County circuit court judge Frank Edwards pleaded guilty to marijuana possession while vacationing in Belize City. He was fined $1,000. Edwards sits on Chicago's Special Narcotics Court.

CA: Five Sacramento jail guards face disciplinary action for staging mock executions in June, 1996, of at least three prisoners. The prisoners were strapped into a chair designed to restrain unruly detainees and told it was electrified and they were about to be electrocuted. The same five deputies were also under investigation for subjecting a black reserve deputy to racially offensive behavior.

CA: On August 12, 1996, a fight began in the Peter Pitchess Detention Center's North County Correctional Facility's maximum security section. Sixty to seventy prisoners were involved in what media called "a racially charged melee" that left 27 prisoners injured, seven with stab ...

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 to state-supported property, following a two-day bench trial. He faces a possible 4-15 year prison term or a jail term with probation.

If he was so good at sniffing out homemade shanks, how was it that he was convicted of possessing one? Well, simply put, it was his knife. He made it out of metal from a guard-tower light louver, sharpened the edge by rubbing it on concrete and wrapped one end in tape and cloth.

He left the prison with the knife and returned the next day, according to prison officials, and then "found" the shank near the maximum security prison's gymnasium.

Livingston County State's Attorney Thomas Brown said that another guard became suspicious after noticing the missing metal strip and scrape marks on the wall of the guard tower. After Householder "found" the knife, it was compared to the missing metal strip in the tower and ...


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