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Prisoner Education Guide

Prison Legal News: December, 1996

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Volume 7, Number 12

In this issue:

  1. Three Strikes in California (p 1)
  2. Censorship of Rap Tape States Claim (p 3)
  3. Analysis of People v. Romero (p 3)
  4. Hungry for Justice in L.A. Jail (p 4)
  5. From the Editor (p 4)
  6. Transportation Costs Can't Be Imposed on Losing Plaintiffs (p 5)
  7. A Matter of Fact (p 5)
  8. Pro Se Tips and Tactics (p 6)
  9. Black Prison Movements (p 7)
  10. Washington Prisoners Lose Computers, Again (p 8)
  11. CRIPA Stays Not Appealable (p 9)
  12. Botched Escape Sparks Rebellion (p 10)
  13. Texas Guard Cleared in Controversial Shooting (p 11)
  14. Twelve Political Prisoners Gave their Lives in a Death Fast in Turkey (p 12)
  15. Motive in Denying Due Process Irrelevant (p 14)
  16. Georgia Prisoners Retain Right to Safety (p 14)
  17. Upsizing Federal Law Enforcement (p 15)
  18. ADA Ruling for Deaf New York Prisoners (p 15)
  19. New York Voting Rights Case Vacated (p 16)
  20. Iowa DOC Shake-Up (p 16)
  21. PLRA Stay Provision Held Unconstitutional (p 17)
  22. PLRA Not Retroactively Applicable to Special Masters (p 17)
  23. Attorney Fees Awarded in Smoking Suit (p 17)
  24. PLRA Not Applicable to Appeals Filed before Passage (p 18)
  25. PLRA Not Retroactive on Attorney Fees (p 18)
  26. Update on Washington Money Seizure Suit (p 19)
  27. Habeas Required for Disciplinary Hearing Challenges (p 20)
  28. Prison Officials Liable for Double Celling (p 20)
  29. No Immunity for Failure to Protect Prisoner from Violence (p 21)
  30. PI Granted on Winter Clothing Claim (p 21)
  31. News in Brief (p 22)

Three Strikes in California

By all accounts, the three strikes sentencing law in California is a failure according to criminal justice experts. They point out that three strikes is applied more often than not to people of color, that it hasn't reduced crime, that it's overwhelming the court system and bankrupting the state treasury. Supporters, consisting of conservatives, prosecutors, police, and other special interest groups, counter that the law is working, street crime is down, and more career criminals are behind bars with life terms. Wading into the sea of controversy surrounding the three strikes law, the California Supreme Court recently held that judges retain discretion to strike prior convictions so defendants with a third serious or violent felony will not automatically face 25 years to life in prison.

In People v. Romero (June 20, 1996) 13 Cal.4th 497, 917 P.2d 628, 65 USLW 2017, 96 Daily Journal DAR 7229, the state's high court, controlled by Republican appointees, ruled that the three strikes law did not preclude trial judges from striking allegations of prior convictions, even in the absence of a motion by the prosecutor requesting such action. Republican lawmakers were quick to denounce the decision, vowing to overturn ...

Censorship of Rap Tape States Claim

Afederal district court in Wisconsin granted a prisoner plaintiff's motion for in forma pauperis status holding that censorship of a rap music tape states a claim for a first amendment violation. James Golden, a Wisconsin state prisoner, filed suit challenging the censorship of a rap music tape he had ordered. Prison officials at the Waupun Correctional Institution have implemented a policy where tapes marked "parental advisory-explicit lyrics" are previewed by prison officials before being delivered to prisoners. Tapes which "advocate violence" are banned. Golden ordered a rap tape which was censored.

The court held that Golden has stated a claim under the first and fourteenth amendments. "Rap music constitutes speech protected by the First Amendment. Betts v. McCaughtry , 827 F. Supp. 1400, 1406 (WD WI 1993), aff'd, 19 F.3d 21 (7th Cir. 1994). An arbitrary denial of access to published materials may violate an inmate's first amendment rights. Martin v. Tyson , 845 F.2d 1451, 1454 (7th Cir. 1988). An inmate may assert a claim under the due process clause based on an alleged deprivation of his property without due process of law." The court ordered the complaint filed and served without prepayment of costs. See ...

Analysis of People v. Romero

On June 20, 1996, the California Supreme Court decided People v. Romero (1996) 13 Cal.4th 497, 917 P.2d 628, 65 USLW 2017, 96 Daily Journal DAR 7229. The question posed in the case was whether trial judges retained discretion to strike prior felony convictions under the so-called three strikes law, which imposes substantially enhanced sentences on repeat offenders. In an opinion written by Justice Werdegar, the Court concluded that judges do retain discretion to strike prior felony convictions, paving the way for an estimated 20,000 retrials.

In California, Penal Code §1385 authorizes a trial judge to dismiss a criminal action "in the furtherance of justice" on its own motion. The California Supreme Court had previously held that the power to dismiss included the lesser power to strike factual allegations relevant to sentencing, such as prior felony convictions. People v. Thomas (1992) 4 Cal.4th 206, 841 P.2d 159. The Court concluded that the Legislature can take the power to dismiss in the furtherance of justice from trial judges, but did not do so in the three strikes law.

The Court reasoned, under the state separation of powers doctrine, that "when the Legislature does permit a charge ...

Hungry for Justice in L.A. Jail

More than 50 detainees at the Men's Central Jail in Los Angeles participated in a hunger strike, protesting a lack of legal reference materials and law library access, in August 1996.

The hunger strike appears to have been confined to one section of the jail. Of the 74 men detained in that section, 54 refused to eat the noon meal on Sunday, August 4; 61 refused to eat the evening meal. The following day, according to local newspaper accounts, 58 detainees refused solid food, 35 of whom also rejected liquid sustenance.

Celes King III, a well-known bail bondsman and state chair of the Congress of Racial Equality of California, told reporters that he received several phone calls from jail detainees in the week leading up to the hunger strike complaining about curtailments in access to the jail's law library. King said he thought the detainees called him mainly to get the word out about the law library issue before the protest started in order to help focus attention on that issue.

By virtue of the fact that the law library issue was prominently reported in newspaper accounts, the detainees' strategy worked. Often prisoners or jail detainees stage a ...

From the Editor

Welcome to another issue of PLN . If you read these editorials often, you've no doubt noticed that we usually mention that PLN is entirely reader supported and we need donations from you. Somehow you always manage to send "just enough." And we manage to make ends meet. Lately, though, money has gotten real tight out here in PLN Land. We've always said that we need your financial support to continue publishing ... but the "continue publishing" thing has been more hyperbole than fact. This time it's not.

As I write this editorial, our staff person is doing the layout on the November issue. She'll mail the rough draft to Paul and I. We'll hunt for typos and make the final corrections and send it back to her to run off the proof copy. That proof is sent to the printer, along with the thousand dollars or so it takes to cover the printing bill.

As I write this December editorial, I can't help but wonder how PLN is going to scrape up the money to print and mail the November issue. We've never cut it this close to the bone before. We've never ...

Transportation Costs Can't Be Imposed on Losing Plaintiffs

The court of appeals for the seventh circuit affirmed a district court ruling holding an unsuccessful prisoner plaintiff was not liable for costs incurred in transporting him and his witnesses to trial. Bill Sampley, a PLN supporter, and Michael Holland are Indiana state prisoners who filed suit against Indiana prison officials concerning their conditions of confinement. The suit went to trial and they lost. The Indiana DOC (IDOC) filed a third party application for costs requesting reimbursement from the plaintiffs for the costs of transporting the prisoner witnesses to court. The district court denied the request holding it lacked statutory authority to do so.

The IDOC appealed contending district courts may assess costs under the writ of habeas corpus ad testificandum, which requires prison officials to produce prisoners as witnesses in court proceedings. Alternatively, that courts may assess such costs under 28 U.S.C. § 1920, the statute that provides for the reimbursement of costs to prevailing parties in civil actions. The rule provides that litigation expenses, including expenses for witnesses, can be taxed as costs to the losing party. That same statute also provides that incarcerated witnesses may not be paid for their testimony. The appeals court rejected these ...

A Matter of Fact

There are 1.5 million private security guards employed in the U.S., outnumbering police three to one. Communities, individuals, and businesses spent $52 billion on private security in 1990, twice the amount of tax revenues going to police.
The crime rate dropped 4 percent overall in 1995 according to FBI crime statistics, the fourth consecutive annual drop. The 1995 National Crime Victimization Survey, often cited by statisticians as a truer measure of criminal activity, showed a 9 percent overall drop in 1995.

According to the Center to Prevent Handgun Violence, the number of murders fell by 7.4 percent in 1995 while the number of murders committed with a handgun dropped 11.6 percent.

The homicide rate decreased to 8 per 100,000 in 1995, a 7 percent drop from 1994 and the fourth consecutive annual decline. The most dramatic decreases occurred in large cities. New York City experienced a 24.6 percent decline in homicides. Houston's homicide rate dropped 15.7 percent, New Orleans 14.4 percent, Detroit and Washington DC both 12.2 percent, and Chicago 11.2 percent. Among large cities, Los Angeles reported a slight increase in murders, rising to 849 in 1995 from ...

Pro Se Tips and Tactics

Prisoners who challenge jail or prison conditions or practices in a pro se lawsuit should be aware of the possibility of turning the case into a class action. In deciding whether to seek class treatment, you should consider both whether your case meets the legal requirements for becoming class action and, if so, whether there are advantages to litigating the case as a class action.

A. Could My Case Be A Class Action?

1. Class Certification Under Rule 23

The process of asking that a case become a class action is called "class certification." In federal court cases, such as suits under 42 U.S.C. § 1983, class certification is governed by Federal Rule of Civil Procedure 23 ("Rule 23").

Subsections (a) and (b) of Rule 23 are the most important to class certification. In order to get a class certified, your case must meet all four requirements of Rule 23(a) and also be at least one of the types of cases described in Rule 23(b).

a. Defining the Class

You should first think through a "class definition," that is a description of who is in the class you want to have the court certify. For example, for ...

Black Prison Movements

Review by Daniel Burton-Rose

This impressive offering from the Network of Black Organizers (NOBO) provides coverage of many of the issues confronting Black and New Afrikan prisoners and their outside communities. A large portion of the writings are by political prisoners and POWs past and present, such as Mumia Abu-Jamal, Sundiata Acoli, Dhoruba Bin Wahad, Mutulu Shakur, and George Jackson, and they are about the tools the United States government has and continues to use against them, such as counter-insurgency warfare and behavior modification techniques. The book also demonstrates clearly the political nature of the mass incarceration of Black / New Afrikan peoples in this rabidly racist and unequal society. Black Prison Movements provides an excellent picture of the agony that the penal system inflicts on both individuals and on a people as a whole. Most importantly, it is also a testament to the continued resistance of Black and New Afrikan prisoners. 187 pages. ISBN 0-86543-495-6. $14.95. Afrika World Press Inc. 1995. Available from Left Bank Distribution, 1404 18th Ave., Seattle WA 98101. 40% off to prisoners.

Washington Prisoners Lose Computers, Again

In 1986 prisoners at the Washington State Reformatory in Monroe, WA were allowed to purchase computers and software and keep them in their cells. The program at its peak had some 56 prisoner computer owners in it. During this period the only problem that arose was one prisoner who hid a small piece of marijuana behind his computer monitor. As a result he lost his computer. (Had the marijuana been hidden in another appliance, either his TV or radio, he would not have been required to mail it out.) The benefits of the program were many and obvious. Prisoners learned important computer skills ranging from word processing, desk top publishing, Computer Assisted Drafting, spread sheets, data bases, etc. These skills have translated into well paying jobs for the computer owners who were later released from prison. Of the computer owners that have been released, only two have returned. No other program in Washington can boast almost a zero recidivism rate. Among those computer owners who have been released and have since been employed by the computer industry are Ed Mead, now employed in the computer field after serving an 18 year sentence; James Smith after 14 years in prison; Jeff ...

CRIPA Stays Not Appealable

The court of appeals for the ninth circuit held that district court orders which stay proceedings for a limited time to require exhaustion of prison administrative remedies pursuant to the Civil Rights of Institutional Persons Act (CRIPA), 42 U.S.C. § 1997e are not appealable. Two Arizona state prisoners filed civil rights actions which the district court stayed pending exhaustion of administrative remedies. The prisoners appealed the stay and the appeals court dismissed the appeal holding it lacked jurisdiction to hear the appeal.

"Appellants cite this courts decision in Marchetti v. Bitterolf , 968 F.2d 963 (9th Cir. 1992) in their notices of appeal to support jurisdiction. Appellant's reliance on Marchetti is misplaced. In that case, this court held that an order indefinitely staying a civil rights action to permit exhaustion of state habeas corpus remedies was appealable under the collateral order doctrine established in Cohen v. Beneficial Industrial Loan Corporation , 337 US 541, 69 S.Ct. 1221 (1949). This holding was based on explicit findings that the order conclusively determine a disputed question, resolved an important issue separate from the merits of the action and was effectively unreviewable on appeal."

"We hold that the district court's orders ...

Botched Escape Sparks Rebellion

[Editor's Note: There is no source PLN is aware of that keeps accurate statistics on the number of prison disturbances/rebellions. It is apparent to many who monitor prison news, including PLN, that the number of rebellions is on the rise. We attempt to cover them when possible, but often the only source we have is what gets printed in the local papers. We are reluctant to report only the "official version? of events, so we often report little or nothing of these newsworthy events.

The report which follows was made possible because PLN readers sent us not only local news clippings, but also some first-hand reports which were accurate, factual and to the point. We at PLN appreciate this kind of reporting .]

On Friday, August 9, 1996, four Nottoway Correctional Center (NCC) prisoners (in Virginia) hatched an escape plan that went awry. Before it was over hostages were taken, a full-scale rebellion kicked off, and eight prison staff, including the warden, were injured by a shotgun blast when one guard apparently dropped his weapon. As one prisoner on the scene put it, "They were running around like a bunch of Keystone Kops."

The four prisoners who attempted the ...

Texas Guard Cleared in Controversial Shooting

Last month PLN reported "In Harm's Way: Texas Prisoner Killed," about the fatal shooting of 21-year-old prisoner Daniel Miguel Avellaneda by 35-year-old French Robertson Unit prison guard Neal Harms.

Six weeks and one day after the July 8 shooting, a Jones County grand jury in Anson, Texas, a tiny hamlet located next to the prison, found that Harms violated no laws when he killed Avellaneda.

Neither the district attorney nor district judge would discuss the case with reporters. Texas prison officials told the press, though, that no prisoners testified before the grand jury, saying that the grand jury didn't request prisoners' testimony.

Harms told investigators that Avellaneda was running away from an outside work crew, that he shouted twice at him, 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 claimed. "I then fired a second shot toward the inmate's center mass, and the inmate fell to the ground." The bullet hit Avellaneda between the eyes. He was later pronounced dead at a local hospital.

Marshall Jackson, member of the same work crew, who asked to appear before the ...

Twelve Political Prisoners Gave their Lives in a Death Fast in Turkey

When Aygun Ugur, an imprisoned militant from the outlawed Turkish Communist Party/Marxist-Leninist (TKP/ML), died on the 63rd day of a hungerstrike, Turkey was shocked. In a nation which is continually rocked by political crises and rebellion, this summer's death fast by left-wing political prisoners posed the greatest threat to the the Turkish government in recent years. Weeks of public denial and fierce repression could not stop the prisoners, and in the days after Ugur's death, 11 more martyrs were to fall in Europe's most serious political hungerstrike since 10 Irish POW's died in the 1981 IRA/INLA hungerstrike.

This summer's hungerstrike, the climax of more than a year of continued prison resistance in Turkey and Kurdistan, began on May 19, 1996. At the outset, more than 1,500 political prisoners took part, most from militant communist organizations such as the Revolutionary People's Liberation Party-Front (DHKP-C), the TKP/ML, and others. Kurdish political prisoners, mostly from the Kurdistan Workers Party (PKK), soon joined in as well, and the resistance displayed a great deal of unity among Turkey's fractured radical-left and leftist Kurdish groups as well.

The main impetus for this latest hungerstrike ...

Motive in Denying Due Process Irrelevant

The court of appeals for the sixth circuit held that prison officials are liable for keeping a prisoner in administrative segregation without a hearing if they acted intentionally or with deliberate indifference; their motive in doing so is irrelevant. Gregory Howard, a Michigan state prisoner, filed suit after he was placed in protective custody and increased security confinement without a hearing or review. Howard spent a total of 559 days in segregation as a result of the due process violation. This is the third time the appeals court has reversed district court rulings in favor of prison officials in this case. In Howard v. Grinage , 6 F.3d 410 (6th Cir. 1993) the court held that Michigan prisoners retained a constitutionally protected liberty interest in remaining free from segregation and remanded the case. In its remand the court instructed the district court to determine whether prison officials had been grossly negligent or deliberately indifferent to Howard's rights. The district court ruled in the defendants' favor after they testified that they bore no animosity towards Howard and that they violated prison rules mandating notice and a hearing before a prisoner is placed in administrative segregation because they weren't "thinking ...

Georgia Prisoners Retain Right to Safety

The Georgia state supreme court ruled that prisoners retain a right to protection and safety from other prisoners. Marvin Yizar, a Georgia state prisoner, is a former Atlanta policeman serving a life sentence for murder. Yizar had previously arrested and prosecuted many of the prisoners with whom he now shares residency. As a result, he has been attacked several times while housed at the Valdosta Correctional Institution. Despite repeated requests to be housed in protective custody or be transferred to a federal prison Georgia prison officials refused to do so.

Yizar then filed a writ of mandamus in state court seeking a court order mandating his placement in protective custody. The trial court denied the writ holding that what Yizar requested was "a discretionary matter, not something he is entitled to as a matter of right." The court also denied Yizar's request to file in forma pauperis. The Georgia supreme court reversed and remanded.

The court noted that mandamus is an extraordinary remedy which will not issue to compel a public official to perform a discretionary act unless a gross abuse of that discretion has been shown by the petitioner. Examining Yizar's petition the court held that because ...

Upsizing Federal Law Enforcement

In his 1996 State of the Union address, Clinton promised to end the "era of big government." But while federal agencies from the Department of Energy to the Labor Department are being downsized, federal law enforcement appears to be moving briskly in the opposite direction.

The Clinton administration's fiscal 1997 budget calls for a 13.7 percent increase for the Department of Justice, which would boost its funding to $18.6 billion. In the past 16 years, the Justice Department has expanded its work force from 55,000 employees to 94,000 and its budget has grown by nearly 600 percent. After adjusting for inflation, that increase still comes to about 300 percent since 1981.

There are currently more than 41,000 criminal investigators working for 32 federal agencies. One of the fastest growing is the Immigration and Naturalization Service (INS). This year the House approved a bill that will transform the Border Patrol into one of the nation's largest police agencies, with the hiring of 1,000 agents in each of the next five years.

During fiscal year 1995, $6.7 billion was spent on domestic drug enforcement, more than $1.3 billion of it going to ...

ADA Ruling for Deaf New York Prisoners

The U.S. District Court for the Southern District of NY ruled in favor of hearing impaired New York prisoners litigating a number of constitutional and statutory issues relating to the imprisonment of hearing impaired prisoners. The court held that the defendants, New York Department of Correctional Services (DOCS), violated all statutes and constitutional provisions under which the prisoner plaintiff class sought relief, thus warranting declaratory and injunctive relief. The court provides a thorough analysis of the rights of hearing impaired prisoners under the ADA and the Rehabilitation Act of 1973. This ruling will be of interest to prisoners litigating under those statutes, particularly hearing impaired prisoners.

Declaratory judgment was granted to the prisoner plaintiffs in the following areas: The failure of DOCS to "provide interpretive services for various aspects of reception and classification;" the "absence or inadequacy of assistive communications devices for telephone and television and the absence of visual safety alarms violates both the ADA and the Rehabilitation Act;" the DOCS failed "to make reasonable accommodations to facilitate full participation by class members in educational, vocational and rehabilitative contexts such as classes and counseling sessions ... ;" DOCS failed "to provide qualified interpreters and/or other assistive devices during medical ...

New York Voting Rights Case Vacated

In the January, 1996, issue of PLN we reported Baker v. Cuomo , 58 F.3d 814 (2nd Cir. 1995) where the second circuit court of appeals reversed and remanded a lower court ruling dismissing a lawsuit by New York state prisoners challenging the voting disenfranchisement of convicted felons. See: Baker v. Cuomo , 842 F. Supp. 718 (SD NY 1993) [ PLN , July, 1994].

The prisoners contended that New York state laws prohibiting felons from voting operated as race based discrimination because New York state prisoners are disproportionately minorities.

After the appeals court reversed the lower court dismissal and the supreme court denied certiorari, the appeals court granted a rehearing en banc solely on the plaintiff's Voting Rights Act (VRA) claim under 42 U.S.C. § 1973. The en banc court did not agree to hear the plaintiff's fourteenth and fifteenth amendment claims.

In an extremely unusual outcome, ten judges sitting en banc heard the case and evenly split, five to five on the merits of the case. Due to an obscure procedural rule, when an en banc court evenly splits it is the district court ruling, not the appeals court ruling, that is affirmed. The result in this case ...

Iowa DOC Shake-Up

The Iowa DOC administration under director Sally Chandler Halford is taking a "get tough" position against prisoners. Up for a tough reconfirmation next year by the senate, the director plans to shake-up the whole system in the wake of recent incidents within the Iowa system.

The changes by the DOC were discussed Sept. 6 with the Iowa Board of Corrections and include: issuing new prisoner uniforms; eliminating all personal clothing "down to the socks" (even shorts and sweats); using plastic containers and doing away with the inmate purchased locker boxes; and, waging a court battle to toughen conditions for inmates in the hole at the state penitentiary in Ft. Madison.

The DOC has been plagued this year with incidents. The Iowa State Penitentiary was put on lockdown after a guard shot a prisoner July 18 when he tried to escape during a medical trip to University Hospitals in Iowa City. The lockdown reason was 'to head off hostile reactions." On July 23 a disturbance by 13 prisoners at the still locked down penitentiary had to be quelled by armed guards when fires were set on walkways outside of cells and cells were trashed. On August 4 a guard at the ...

PLRA Stay Provision Held Unconstitutional

In two separate rulings different judges in Michigan held that the stay provisions of the Prison Litigation Reform Act (PLRA), codified at 18 U.S.C. § 3626(e) are unconstitutional. Among the PLRA's provisions to section 3626(e) which provides that "Prospective relief subject to a pending motion [for termination] shall be automatically stayed beginning on the 30th day after such motion is filed until the date 'the court enters a final order ruling on the motion.'" This case involves a class action suit originally filed In 1980 challenging numerous prison conditions at the State Prison for Southern Michigan in Jackson. A consent decree settling the suit was approved by the court in 1985. Since then numerous rulings and orders have been issued and the prison itself is undergoing vast structural changes. The PLRA would, literally, halt all prior orders in this case.

The court held that "...this provision is such a palpable constitutional violation in which Congress takes over a court's docket and intrudes on a court's final judgment that I find it unnecessary to use the All Write Act as a stopgap for what in perfectly clear.

"The automatic stay provision is not an attempt ...

PLRA Not Retroactively Applicable to Special Masters

A federal district court in California held that the Prison Litigation Reform Act's (PLRA) provisions limiting the source and amount of payment to special masters appointed to monitor compliance with court orders did not apply to special masters appointed prior to the PLRA's enactment on April 26, 1996.

In the May, 1996, issue of PLN we reported Coleman v. Wilson, 912 P. Supp. 1282 (ED CA 1995), which found the California Department of Corrections' (CDC) mental health care system to be in violation of the eighth amendment. The court ordered extensive injunctive relief to rectify the constitutional violations and appointed J. Michael Keating to serve as a special master to oversee the implementation of the court's injunction. Keating was to be paid $150 an hour for his work in the case and $75 an hour for travel time. His fees were to be paid by the defendants pursuant to Fed.R.Civ.P. 53(a).

With the passage of the PLRA, special masters were to be paid with funds appropriated to the federal judiciary and their fees were to be capped at $75 an hour. See 18 U.S.C. § 3626(f)(4). As a result, Keating ...

Attorney Fees Awarded in Smoking Suit

A federal district court in Nebraska awarded a prisoner plaintiff $8,346 in attorney fees and $2,952 in expenses in a suit challenging Nebraska state prisoners' exposure to Environmental Tobacco Smoke (ETS, also known an second hand smoke). This to the first published case to discuss the award of ...

PLRA Not Applicable to Appeals Filed before Passage

The court of appeals for the second circuit held that the Prison Litigation Reform Act's (PLRA) fee provisions did not apply to appeals submitted prior to its passage. The court also held that summary judgment rulings must be properly supported by the record. Michael Ramsey, a New York state prisoner, filed suit after his writing materials were confiscated and he was denied access to Kosher food and legal materials. The district court granted summary judgment to the defendants on its own motion holding Ramsey had not presented sufficient evidence showing the defendants involvement in his claims.

The second circuit had previously ruled that prisoners must pay the full filing fees in cases where the notice of appeal was filed prior to the PLRA's enactment. See: Covino v. Reopol, 89 F.3d 105 (2nd Cir. 1996). Unless the fees are paid, the appeal will be dismissed. See: Leonard v. Lacy, 88 F.3d 181 (2nd Cir. 1996).

"We hold that Ramsey need not comply with the PLRA because his appeal was fully briefed, considered by us, and deemed submitted for decision before the PLRA became effective. Requiring Ramsey to comply with the PLRA fee provisions would, therefore, not further ...

PLRA Not Retroactive on Attorney Fees

The court of appeals for the eighth circuit held that the Prison Litigation Reform Act (PLRA) provisions limiting attorney fees in prison cases is not to be retroactively applied. The court also affirmed the district court ruling that the practice of randomly double celling prisoners at the Nebraska State Penitentiary (NSP) violated the eighth amendment. This is the appeal to El Tabach v. Gunter, 922 F. Supp. 244 (D NE 1996), which outlines the history of the case. [See page 20 of this issue.]

The appeals court began by noting this case was not an overcrowding or conventional double celling case in that it did not involve the inadequate provision of basic services. Instead, it was a failure to protect case where prison officials were deliberately indifferent to prisoners' safety by randomly double celling prisoners with no regard to their safety.

The court held that 18 U.S.C. § 3626(a)(1) (AKA the "Helms Amendment," see PLN, Dec. 1994) which limits the relief that can be ordered by federal courts in prison crowding cases, does not apply because this is a failure to protect case, not a crowding case. Thus, the relief granted by the district court was entirely ...

Update on Washington Money Seizure Suit

In the August, 1996, issue of PLN we reported the history and then current status of Wright v. Riveland, the class action suit challenging the constitutionality of Washington statute RCW 72.09.480, which allows the DOC to seize 35% of all funds sent to prisoners. For more details refer to the June and August, 1996, issues of PLN.

Developments since the August update are that on September 14, 1996, magistrate Arnold issued a report recommending that the free citizens challenging the constitutionality of the seizure statute should not be allowed to participate as co-plaintiffs in Wright. The magistrate reasoned that the claims raised by the non prisoners were significantly different than those raised by the prisoners. Judge Burgess later adopted the report and recommendation.

Rather than get bogged down in an extensive argument over the non prisoner class, plaintiff's counsel will simply file a separate class action suit, in state court, with only the non prisoners as plaintiffs. PLN will report the specifics of that suit once it is filed.

An amended compliant was filed in October, 1996, after the non prisoner class was denied certification. The amended complaint, filed on behalf of the prisoner class in Wright ...

Habeas Required for Disciplinary Hearing Challenges

The court of appeals for the eighth circuit held that prisoners challenging the results of prison disciplinary hearings that result in the loss of good time cannot challenge the hearing result via 42 U.S.C. § 1983, but instead they must present their claim as a habeas corpus petition after exhausting state remedies. Readers should note that the issue of whether or not prisoners challenging due process claims arising from prison disciplinary hearings where good time is lost is now pending before the U.S. supreme court in Edwards v. Balisok [PLN , July, 1996,] and should be decided soon.

David Sheldon, an Iowa state prisoner, was infracted after he wrote in a prisoner produced newsletter: "We have your [expletive] warden Thomas E. Hundley... You could have kept him." Sheldon was found guilty of verbal abuse and received 15 days of segregation and lost 16 days of good time. He filed suit under § 1983 claiming the infraction violated his first amendment rights. The district court dismissed the complaint for failure to exhaust state remedies, holding that under Heck v. Humphrey , 114 S.Ct. 2364 (1994) prisoners cannot bring a § 1983 challenging a prison disciplinary proceeding resulting in the loss of good ...

Prison Officials Liable for Double Celling

In the September, 1996, issue of PLN we reported Jensen v. Gunter , 73 F.3d 808 (8th Cir. 1996) where the appeals court vacated a district court ruling that double celling practices at the Nebraska State Penitentiary (NSP) violated the eighth amendment where the district court had not made any inquiry into the defendant's subjective knowledge of violence at the prison as required by Farmer v. Brennan , 114 S.Ct. 1970 (1994). This is the fifth published ruling in this case, all of which have been reported in PLN in the past. The suit involves the NSP practice of forcibly double celling prisoners with no inquiry by prison officials into the characteristics of the individual prisoners. This practice has resulted in a large number of attacks and rapes between cellmates. The prisoners have successfully challenged the practice claiming that the lack of classification procedures and resulting forcible double celling violates the eighth amendment. This ruling, and the others, paint a grim picture of the American gulag at the end of the twentieth century, giving lie to anyone claiming prisons are resorts or prisoners are "coddled." After the supreme court decided Farmer , the district court requested briefing on the issue ...

No Immunity for Failure to Protect Prisoner from Violence

The court of appeals for the eighth circuit held that prisoners have a clearly established right to be protected from violence by other prisoners. The court also gave a detailed discussion of appellate jurisdiction in reviewing interlocutory appeals by prison officials who have been denied qualified immunity at the trial level. Carroll Erickson was assaulted by another prisoner while confined to the protective custody unit of the Pennington County Jail in South Dakota. Prior to the assault Erickson told a jail guard he had been threatened. The guard told another guard on the next shift who said he would keep a eye on the situation. While making his rounds the guard left Erickson unattended in a recreation area that could be accessed by other prisoners. Erickson was duly assaulted and filed suit claiming his eighth amendment right had been violated. Erickson was taken to a hospital where he received stitches. The examining doctor wanted to take x-rays and keep Erickson overnight for observation. The sheriff refused and returned Erickson to the jail. Erickson then filed suit claiming his right to safety and medical care was violated.

The district court denied the defendants qualified immunity and scheduled the case for trial ...

PI Granted on Winter Clothing Claim

Afederal district court in New York granted a preliminary injunction ordering prison officials to provide segregation unit prisoners with winter clothes in order for them to have access to outdoor exercise. Ronald Davidson, a New York state prisoner, filed suit challenging the inadequacy of medial care he had received and various conditions of confinement in the prison segregation unit. Davidson sought a preliminary injunction enjoining several conditions but the court denied most of the requested PI except for that portion pertaining to winter clothing.

Davidson requested that he receive one hour of exercise per day in a secure setting and that he be provided with warm, individual clothes to wear in the exercise area and that he have an exercise period separate from other prisoners for security reasons. [ Editors' Note: While the court does not say so, this appears to be a protective custody unit rather than a disciplinary housing unit, though for all practical matters the distinction is immaterial. ] The practice being challenged in this case was that prisoners were only issued light-weight pants, short-sleeve shirts, a sweat shirt and non-insulated, non-waterproof shoes. SHU prisoners share "community" lightweight jackets.

The court granted this portion of the PI noting that ...

News in Brief

CA: Former L.A. Rams cornerback Darryl Henley and Metropolitan Detention Center (MDC) guard Rodney Anderson were indicted in June, 1996, on charges of conspiring to kill federal judge Gary Taylor and former Rams cheerleader Tracy Donoho. The indictment states that Anderson smuggled a cellular phone into Ronley's jail cell so Henley could negotiate a large drug deal. Henley was awaiting trial on drug charges at the time. Henley wanted to raise $1 million to pay for the murderer. Unfortunately for Anderson and Henley, the drug "buyers" and "hitmen" were all cops. Anderson van later arrested with 5.6 kilos of heroin.

CA: On September 13, 1996, a state appeals court dismissed the libel suit of Pelican Pay prison guard John Snyder. In 1992 Snyder posed for photos taken by the California Department of Corrections (CDC) which showed him dressed as a prisoner. He was told the photos would be used for training purposes and would not be distributed to the public. However, at least one of the photos later appeared in a CDC brochure distributed to the media and public. Later, another photo appeared in Prison Life magazine with the caption "Inmates may have radios and televisions inside ...


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