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Prisoner Education Guide

Prison Legal News: February, 1996

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Volume 7, Number 2

In this issue:

  1. How the Florida DOC Circumvents Prisoners' Rights to Meaningful Access to the Courts (p 1)
  2. Jury Awards $39,000 in Texas Scalding (p 4)
  3. From the Editor (p 4)
  4. RFRA Case Set for Trial (p 5)
  5. Washington DOC Costs Policy Enjoined (p 5)
  6. Ohio Update (p 6)
  7. Unrest in NY Prisons (p 6)
  8. Suspect Peppers in LA (p 6)
  9. An Angry White Man (p 7)
  10. U.S.P. Lewisburg Lockdown (p 8)
  11. Washington Court Access Suit Settled (p 9)
  12. New Jersey Takes Computers (p 10)
  13. Jurors Challenge Tennessee Constitution (p 10)
  14. Alaska Overcrowding Fines Increase (p 10)
  15. Attorney Fee Award Affirmed (p 11)
  16. ISRB Can't Change Rules to Avoid Compliance with Court Order (p 11)
  17. Washington Prisoners Have Liberty Interest in Good Time (p 12)
  18. No Jurisdiction for Some Appeals (p 13)
  19. Kidnapping and Extortion, Texas Style (p 13)
  20. Irish POWs in the US (p 14)
  21. Peru Political Materials (p 14)
  22. It's About Time: Americas Imprisonment Binge (p 14)
  23. Weight Lifting Info Available on the Internet (p 15)
  24. No Immunity for Retaliatory Discipline (p 15)
  25. Fifth Circuit to Require Administrative Exhaustion (p 16)
  26. Georgia Prisoner Strangled by Guards (p 17)
  27. Colorado Prisoners Riot in Texas Jail (p 17)
  28. $7,639.20 Awarded in Retaliatory Transfer (p 18)
  29. No Immunity for AIDS RA Claim (p 19)
  30. Partial Filing Fee Allowed (p 19)
  31. BOP Multiple Cell May Violate Constitution (p 20)
  32. Failure to Provide Medical Treatment Unlawful (p 20)
  33. Court Access in Massachusetts DDU Challenged (p 21)
  34. CDC Hobby Shop Ruling Affirmed (p 21)
  35. NC Prisoners Riot in Tennessee (p 22)
  36. Fabricated Charges State Claim (p 22)
  37. Ninth Circuit Rejects Disciplinary Double Jeopardy (p 23)
  38. Sandin Applied Retroactively (p 23)

How the Florida DOC Circumvents Prisoners' Rights to Meaningful Access to the Courts

by William Van Poyck and Enrique J. Diaz

Although prisoners' constitutional right to meaningful access to the courts has been clearly established for almost three decades, the Florida DOC continues to evade and circumvent their constitutional obligation to accord prisoners their rights by employing blatantly unconstitutional rules and policies. Florida is not satisfied with mere passive resistance, but instead aggressively employs the most egregious methods to actively thwart prisoners' attempts to bring any litigations (civil or criminal) to the court house. Moreover, the DOC has so far done this with impunity. Under the policies and rules that will be described herein, the DOC consistently utilizes confiscation and destruction of prisoners' legal documents and materials, combined with disciplinary action, intimidation and harassment to throttle prisoners' attempts to litigate their cases and/or to receive legal assistance from other prisoners. While these policies are clearly, unequivocally and blatantly unconstitutional, the DOC remains secure in their knowledge that they can get away with it. The tactics used by the DOC will be described below and they bear watching as other states will surely attempt to push the envelope, testing the waters to see what they can get away with in the current environment ...

Jury Awards $39,000 in Texas Scalding

On September 21, 1995, a federal jury in Houston awarded Texas state prisoner Roland Rudd $39,000 in damages against prison guards Robert Bergeron and Leonardo Herrera. The jury found that the Bergeron splashed a pitcher of hot coffee on Rudd's face and refused to provide him with medical ...

From the Editor

PLN has reached the point where we need at least one full time staff person on the outside. The amount of work that needs to be done is beginning to overwhelm our volunteers. The trouble with the idea that we pay someone is simple: We can't afford it. At our present rate of growth, we project that we could not pay a staff salary before the year 1998.

So, to make up the difference we need to shop around for a grant. Any ideas out there in reader-land? I'm sure we can figure out how to put together a decent grant proposal. What we mainly need help with is in who to submit the proposal to. We don't want to waste our time (and theirs)sending grant proposals to foundations that would have absolutely no interest in funding a project such as PLN . On the other hand, I'm sure there must be foundations out there who have a high degree of interest in funding something exactly like PLN ! These are the foundations we need to hear about. If you have any good tips, send them to Paul or me. (Our addresses are in the box on ...

RFRA Case Set for Trial

A federal district court in Pennsylvania held that a factual dispute existed as to whether a jail's policy banning detainees from wearing religious headgear substantially burdened the exercise of religion under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb(b). In its ruling, denying the defendants' summary judgment motion in part and granting it in part, the court gave an extensive discussion to the history of the RFRA, its applicability to prisons and jails and numerous prison cases involving the RFRA.

The court dismissed the plaintiff's claim for injunctive relief because he was no longer held at the jail. The court set the case for trial to determine whether or not a jail policy banning detainees from wearing religious headgear at all times, in this case a Muslim Kufi, substantially burdened the detainees' free exercise of religion. The case is not a ruling on the merits but will be helpful to anyone litigating an RFRA claim. See: Muslim v. Frame , 891 F. Supp. 226 (ED PA 1995).

Washington DOC Costs Policy Enjoined

Past issues of PLN have reported the ongoing efforts by the Washington attorney general's office to intimidate prisoners who file civil rights suits. Part of this strategy has included seeking costs against prisoners who lose such suits then taking every last penny from the prisoners account. We have reported on strategies to prevent the imposition of costs, [See: PLN , Vol. 4, No. 6], and a ruling which prevented the seizure of funds once the costs were imposed, [PLN , Vol. 5, No. 9].

Judge Quakenbush of the US district court in Spokane entered a Temporary Restraining Order (TRO) on September 14, 1995, which found Washington DOC Policy 200.000 to be unconstitutional as far as it allowed the seizure of funds from unsuccessful prisoner litigants. The case involves three consolidated suits by prisoners who lost civil rights suit, were assessed costs and had the money seized by the DOC. The DOC recognizes none of the statutory exemptions provided by state law, see RCW 6.15.010 and 6.27.150.

The court found that the DOC instituted DOC Policy 200.000 allowing for these seizures without any statutory authority and ahead of all other seizures that are allowed by law ...

Ohio Update

At Mansfield Correctional Institution (MANCI) the warden, Dennis Baker, Major Mack, the Business Manager, and two guards were placed on administrative leave while the FBI and State Highway Patrol (SHP) investigated allegations they accepted gratuities and kickbacks from a prisoner, J. Crow, whom they allowed to operate a business from ...

Unrest in NY Prisons

[Editor's Note: New York state's Republican majority legislature passed laws that mandate double bunking of the NYDOC prison system. Most cells in NY state prisons are tiny, a mere 9' x 6'. There is a high incidence of both AIDS and the deadly "drug resistant strain of TB" in NY prisons. The following update was sent to us by a NY reader.]

In August, 95 in Shawangunk Prison there was a three week lock down because of the double bunking coming into effect in September, and about the death penalty and other oppressive matters. It was a non-violent 'no work" stoppage.

In August '95 and September '95 prisoners in Eastern Prison started protesting the upcoming double bunking, death penalty, and "good time" (which there is none in New York state now). During these periods prisoners were wearing all state issue greens instead of their personal clothing, and they were not talking in the mess hall during meals.

On September 12, 1995 in Eastern Prison at the night recreation period nobody went to the yard. On September 13th, the anniversary of the Attica uprising, there was a non-violent work stoppage - complete shutdown where out of over 900 prisoners at ...

Suspect Peppers in LA

I was reading through a few old PLNs and ran across an article on page 11, Vol. 5, No. 10, (Oct. 1994) concerning pepper gas [spray].

In 1992 prisoners here at Angola [LA] bucked work call after one section [of prisoner workers] was ordered to build the death gurney to replace "Ol' Sparkie" as the state was switching to lethal injection. No disciplinary infractions were issued as the warden immediately intervened and admitted the administration's mistake. An outside contractor built the death bed.

Now, Angola has been raising something called "Sport Peppers," a very small, very hot variety, and we have no idea where these peppers are going or what they are being used for. These peppers are hand planted, nurtured and picked by prisoners throughout Angola. In the last three years the crop and yield have increased dramatically.

I want to know if we are contributing unknowingly to the manufacture of something harmful that could be used against us! To this date I have not been able to determine where these peppers are going. All I know is that Angola seems to be making a LOT of money from this crop.

Any information on this, as well as ...

An Angry White Man

I would like you to know that I was so offended by your editorial in the November 1995 issue that I canceled my subscription. I will not support financially or in any way be associated with a publication ran by such blatantly Europhobic minority racists. You obviously get your history from a Rainbow Coalition fantasy book.

You commit the liberal propagandist ploy of judging past eras in history using today's liberal humanist mores. Your "socially, spiritually, ethically" blah blah blah, Natives were animalistic, cannibalistic savages who hadn't even invented the wheel or a written language and were in a constant state of warfare with each other and even, heaven forbid, practiced slavery! They were a backward people who got what they deserved given the Darwinistic exigencies of the time.

Your article was a slap in the face to any European brothers who are doing their time honorably and don't feel the need to truckle to the minority races. I take it from the wailing and gnashing of teeth and masochistic tone of your article that you are such a one. If you're under 21 and not a liberal you don't have a heart. If you ...

U.S.P. Lewisburg Lockdown

On November 1, 1995, several prisoners created a disturbance in the mess hall. They took a case of soda pop and barricaded themselves into one of the dorms. They proceeded to construct a cannon, using a cue ball for a projectile. When the riot squad stormed the dorm, the prisoners fired the "cannon" at them. The pool ball went through a chicken-wire enforced window of a door. The prisoners then soaped the floor and turned a fire hose on the riot squad.

The riot squad turned off the water and then tear-gassed the entire unit. They proceeded to drag out and beat every prisoner from the unit, despite the fact that only a handful had been involved. Over twenty prisoners were beaten so badly by the riot squad that they required medical attention.

After they had all of the prisoners handcuffed and stripped naked, they had them lay on the floor for eighteen hours! Men were defecating on themselves because if they spoke they were kicked in the head. Almost the entire unit was transferred.

After this, the warden went to all of the various prisoner leaders and asked them to have a meeting, amongst themselves, to try and calm ...

Washington Court Access Suit Settled

In the April, 1994, issue of PLN we reported the filing of Scott v. Peterson which challenged numerous aspects of court access for Washington state prisoners. On October 31, 1995, most of the suit was settled and the settlement terms were effective November 30, 1995. The settlement is between five ...

New Jersey Takes Computers

Since about 1985 the New Jersey DOC has allowed prisoners to possess personally owned computers in their cells and for approved prisoner groups to have computers in their offices. On September 12, 1995, the NJ DOC announced that effective September 18, 1995, it plans to begin phasing out prisoner owned personal computers so that by October 1, 1996, none would remain in the DOC. This would also affect "programmable word processors," i.e. memory typewriters.

Prisoner owned personal computers has long been a topic of concern for PLN . Unlike "perks" like TVs, radios, etc., computers represent an opportunity for prisoners to gain vital job skills that can be used upon release and while in prison can be used as part of the overall struggle for prisoner rights, i.e. litigation and propaganda, among others. [See: PLN , June, 1993, Computers and Rehabilitation: Taking Responsibility for the Future, by Ed Mead.]

One New Jersey prisoner contacted PLN about any possible litigation strategy to forestall the loss of computers. The Alaska supreme court is currently considering just such a case, which was dismissed at the trial level. We will report the result when it is published. So far all litigation on this issue ...

Jurors Challenge Tennessee Constitution

Two prospective jurors who were excluded from capital trials in Tennessee because of their religious objections to the death penalty have filed a temporary injunction against the state, charging that barring them violates the state constitution. They cite Article I, Section 6 of the document, which says, "The right to trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification of jurors." Although a trial court ruled against the injunction, the two - Gerald Bowker, a Southern Baptist, and Janet Wolf, a United Methodist - are appealing the case. They are citing the writings of Thomas Jefferson, whose views influenced the framers of Tennessee's constitution, and who held that no citizen should be deprived of a civic trust or duty because of the exercise of religious conscious.

[Editor's Note : Supporters of Bowker and Wolf are seeking to learn of similar instances involving members of other religious groups, as well as cases citing similar passages in other states' constitutions. Please reply to Joe Ingle, c/o Tenn. Coalition to Abolish State Killing, PO Box 120552, Nashville, TN 37212.]

Source: Catholics Against Capital Punishment News , Vol. 4 No. 2, July 31, 1995, p ...

Alaska Overcrowding Fines Increase

In the November 1995, issue of PLN we reported on prison overcrowding in Alaska. In 1981 Alaska prisoners filed a class action suit challenging overcrowding and conditions in the prison system. The prisoners won most of the suit, the key aspect was a court ordered maximum population of 2,665 prisoners. As of October 6, 1995, the AK DOC held 2,739 prisoners despite having shipped several hundred prisoners to private prisons in Arizona. Since September, l994, the DOC has amassed more than $650,000 in court fines for surpassing the population limit. Corrections Commissioner Margaret Pugh said she would ask the Alaska legislature to appropriate the funds in January to pay off the fines.

The state is fined $300 for each day that the state's fifteen prisons are over capacity. If the total prison population statewide exceeds capacity there is an additional $300 daily fine. The legislature will examine alternatives such as building more prisons and shifting the burden of misdemeanor prisoners to local governments. Crime prevention has been rejected as House Judiciary Committee chairman Brian Porter says he is not convinced that prevention works to keep people out of prison as well as harsh sentences and prison ...

Attorney Fee Award Affirmed

The court of appeals for the District of Columbia has affirmed an attorney fee award for over $341,000 in a case involving prisoners beaten by prison guards. The appeals court held that it was entirely appropriate for public interest attorneys to be compensated under the fee shifting provisions of ...

ISRB Can't Change Rules to Avoid Compliance with Court Order

ISRB Can't Change Rules to Avoid Compliance with Court Order 

The Washington state supreme court held that the Indeterminate Sentence Review Board (ISRB, AKA the parole board), could not retroactively amend its regulations in order to deny prisoners relief. In this case the court granted the Personal Restraint Petition (PRP) of Robert Shepard and remanded the case back to the ISRB to furnish Shepard with a hearing.

In In Re Cashaw , 123 Wa.2d 138, 866 P.2d 8 (1994), [ PLN , Vol. 5. No. 5,] the court held that the ISRB must comply with its own regulations when it conducts parolability hearings "whenever it relies on an inmate's lack of rehabilitation in setting a minimum term to coincide with the inmate's maximum term." After Cashaw , the ISRB retroactively amended its rules and regulations, WAC 381-30-010, et seq., to state that the rules only created procedural guidelines and no rights that could be enforced by prisoners. Another way of saying they don't have to follow the rules or the law.

Shepard filed his PRP after Cashaw was decided contending that he had been wrongly deprived of nine months of "good time" credits when the board set his ...

Washington Prisoners Have Liberty Interest in Good Time

The court of appeals for the ninth circuit has ruled that Washington state prisoners retain a state created due process liberty interest in not losing their good time credits unless they are provided with due process at a disciplinary hearing. It also held that § 1983 provides the appropriate means for prisoners to challenge the loss of good time without due process. This is a significant ruling because it is one of the first to address the issues left open by Sandin v. Conner , 115 S.Ct. 2293 (1995), [ PLN , Vol. 6, No. 8].

Norman Gotcher, a Washington state prisoner, was twice charged with having committed serious infractions. He was found guilty and lost 30 days of good time and was placed in segregation. Gotcher filed suit under 42 U.S.C. § 1983 claiming that his federal right to due process was violated when DOC employees failed to give him 24 hour advance notice of the charges against him and refused to allow him to call witnesses or present documentary evidence in his defense. District Judge Van Sickle dismissed the suit on the defendants' motion to dismiss for failure to state a claim upon which relief could be granted, Rule 12 ...

No Jurisdiction for Some Appeals

The court of appeals for the eighth circuit has held that it lacks jurisdiction to hear appeals on issues not decided on the merits in the district court. Marlon Robinson, a Missouri state prisoner, filed suit claiming prison officials were deliberate indifferent to his serious medical needs by not providing treatment for his condition of Bell's Palsy. The defendants moved for summary judgment on the merits or, in the alternative, for qualified immunity. The magistrate recommended granting the motion on the merits but did not address the immunity issue. Robinson objected and the district court denied the motion, holding that a genuine issue of material fact existed as to what treatment Robinson actually received. The defendants had not objected to the magistrate not addressing the immunity issue. The defendants filed an interlocutory appeal claiming they were entitled to either summary judgment on the merits or that they were entitled to qualified immunity.

The appeals court, in a brief ruling, held that it lacked jurisdiction to hear the appeal because the district court made no reference to the qualified immunity issue in its order denying the defendants' motion for summary judgment. Because the court concluded it lacked jurisdiction to hear ...

Kidnapping and Extortion, Texas Style

In the dead of the night, they come to your cell. You wake up with a flashlight shining in your face. You hear the rattle of chains. "Roll 'em up, boy... you're goin' for a ride.' The next day you get a bed roll and make your new bunk... in a county jail in some God-forsaken town in... Texas! "Why me?" you ask. In a word, the answer is: "Money.''

In 1989 Texas state prisons were severely overcrowded and 9,500 state prisoners were backed up in county jails. The District of Columbia was under court orders to ease overcrowding, and was actually polling jailers by telephone prospecting for beds. Houston developer, N-Group Securities, Inc., smelled a profit.

Job-starved small Texas towns were approached by developers with the sales pitch: prisons as an economic development project. It seemed like a no-lose situation. The promoters offered the prospect of a stable, growth industry with no pollution problems. Wall Street Investment firms, such as Drexel Burnham Lambert, offered to underwrite the development schemes by selling high-yield "junk munis" to finance construction.

The "market" looked solid. In a 1989 press release, N-Group Securities expressed the optimism of the day, "Counties and state ...

Irish POWs in the US

Most people are well aware of the fact that the British government holds hundreds of Irish Republican prisoners of war and political prisoners as a result of its efforts to crush the Irish independence movement. Less well know is the fact that Irish republican POWs are held in several other countries, including the US. [Editors' Note: "Republicans" used in the Irish context refers to those who support a united, independent Ireland. It has no relation to the American Republican party.] As the independence war in Ireland moves into negotiations that include the release of hundreds of Provisional Irish Republican Army (PIRA) and Irish National Liberation Army (INLA) prisoners, dozens of Irish Republican prisoners languish in prison elsewhere.

Where is Liberty: The Prosecution of Irish Republicans in the United States is a 32 page booklet that outlines the personal background, location, etc., of more than two dozen Irish POWs being held in American prisons. The prisoners are held for offenses relating to immigration violations (i.e. fleeing British persecution and imprisonment), arms procurement and similar activities to support PIRA and INLA. Many of the prisoners had successfully escaped British prison camps and were living law abiding lives in the US when ...

Peru Political Materials

Since 1980 the Communist Party of Peru (PCP) has led a people's war against the US backed government in that country. Despite the capture of the party's chairman in 1992 the war has continued as the party recovered from the setbacks it suffered that year. PLN has reported on the struggles by PCP prisoners of war and their heroic resistance in past issues. Subjected to a virtual news blackout on the one hand and a propaganda disinformation by the Peruvian and US government on the other, people can now read about the PCP in its own words. Over the past few years an effort has been made to translate the bulk of the PCP's most important political works into English so people can read what the PCP has to say and make up their own minds. The first of those materials are now available.

An Introduction to the People's War in Peru is a 50 page booklet that explains the PCP's origins, the political situation in Peru and the elements of the PCP's program and goals. This is a valuable starting point for those interested in learning more about the PCP and Peru.

On ...

It's About Time: Americas Imprisonment Binge

It's About Time: America's Imprisonment Binge, by John Irwin and James Austin, Wadsorth Publishing Co. (1994), provides an excellent critical analysis of the American prison system and makes a very strong case against America's excessive reliance on the use of imprisonment as the main answer to the nation's crime problem.

The authors rely on scholarly studies of imprisonment rates, official crime statistics, studies of criminal justice reforms and the author's own tri-state study of male prisoners. Irwin and Austin went inside prisons in Illinois, Nevada and Washington and personally interviewed prisoners. They examine what kind of people are behind bars and for what crimes--with many surprising results.

Beginning with a review of America's growing correctional industrial complex, touching on the politics of the fear of crime, and the costs of the imprisonment binge, and what has been accomplished, It's About Time skillfully defends the premise that prisons don't work. They also cover such topics as public misperception about who goes to prison, the effects of warehousing on prisoners, coping with violence, and the reality of lockup. An entire section of the book is devoted to the topics of release and parole, and ...

Weight Lifting Info Available on the Internet

Past issues of PLN have reported on the efforts to halt or curtail weight lifting in prison. Strength Tech, Inc., a supplier to the prison weight lifting industry, has created and dedicated an Internet web site to the issue of prison weight lifting. The web site contains a wealth of information relating to this issue, including state and federal laws, magazine articles, newspaper clippings, television documentaries and other items on the subject. It contains an extensive reference section on "The Behavioral and Psychological Aspects of Weight Training;" success stories of those who lifted weights in prison, improved their lives and were released, and much more. Links are made to other weight lifting, prison and legislative sites on the Internet. For those desiring more information about prison recreation, information is provided about the National Correctional Recreation Association.

The purpose of this site is to make information on this issue available to everyone making policy decisions on the issue of weight lifting. Strength Tech hopes that people will become more informed about this issue as well. Miscellaneous information provided includes how to run a power-lifting meet, reupholstering weight lifting equipment, and how to submit an invention to the weight lifting industry.

Readers ...

No Immunity for Retaliatory Discipline

The court of appeals for the fifth circuit has reaffirmed that prison officials who retaliate against prisoners who exercise their constitutional rights are not entitled to qualified immunity. The court also held that district court orders refusing to dismiss pendent state law claims are not cognizable on interlocutory appeals. Claude Woods, a Louisiana state prisoner, was pressured by a prison sergeant into becoming an informant. He was told that if he refused "bad things would happen to him." Woods wrote to a federal judge who was presiding over prison litigation and told him of the threats. He sent a copy of the letter to the prison warden and to a prison lieutenant.

Prison officials infracted Woods for writing the letter, charging him with "defiance." At a disciplinary hearing Woods was found "guilty" and sentenced to segregation and other punishment. Woods then filed suit pursuant to 42 U.S.C. § 1983 claiming that the infraction was in retaliation for his having exercised his right of access to the courts. The defendants moved for summary judgment which the district court granted in part and denied in part. The court denied the defendants qualified immunity for their actions and refused to dismiss Woods ...

Fifth Circuit to Require Administrative Exhaustion

In two separate rulings the fifth circuit affirmed dismissal of prisoners' section 1983 suits for failure to exhaust administrative remedies (i.e. the prison grievance procedure). In doing so, the court significantly expanded previous supreme court rulings that had held such exhaustion could only be required if a prisoner sought injunctive relief but not if money damages were sought. For those who wonder how bad caselaw gets made, this is a case in point. Hubert Arvie, a Louisiana state prisoner, filed suit naming some 35 people, including the prison basketball coach, the mayors of Jackson and Baton Rouge, another prisoner, a prisoner's mother and others, for various constitutional violations. He sought nine hundred million dollars in damages and injunctive relief.

The district court stayed the suit pursuant to 42 U.S.C. § 1997e (the Civil Rights of Institutionalized Persons Act, CRIPA), which allows federal district courts to stay suits pending exhaustion of administrative remedies if a prison's grievance system has been certified by either the court or the Department of Justice to meet certain minimal standards) and ordered Arvie to exhaust his administrative remedies. After the stay period expired the defendants filed a notice that Arvie had not ...

Georgia Prisoner Strangled by Guards

On September 12, 1995, a guard at the Lee Arrendale Correctional Institution in Alto, Georgia, told 22-year-old prisoner, Samuel Rivers to clean his cell. Rivers had shredded newspapers and 'carpeted" his cell with them. When he refused to clean up the cell, five guards were summoned to take him to the hole. When they attempted to cuff him, he bolted. After a short chase, the guards threw Rivers to the floor and choked him with a baton across the neck until he lost consciousness.

The guards dragged his limp, handcuffed body to the infirmary. A prison doctor was unable to detect a pulse. An autopsy at the Georgia Bureau of Investigation state crime laboratory showed that Rivers died of asphyxiation.

"This is outrageous. This man was not sentenced to death," said attorney Robert Cullen of Georgia Legal Services, which represents prisoners in lawsuits challenging prison conditions. "It's not the place of the Department of Corrections to impose a death sentence for those not sentenced to death."

One of the guards was suspended without pay. The others reportedly still work at the prison. None of the guards were identified. A Habersham County grand jury is reportedly looking at the incident ...

Colorado Prisoners Riot in Texas Jail

On page 13 of this issue of PLN we feature an article about 500 Colorado prisoners who were abducted from Colorado prisons and shipped to the Bowie County Jail in Texarkana, TX. The 500 Colorado prisoners have been fighting the move ever since, primarily through a lawsuit filed by the Colorado ACLU.

In a move to counter the ACLU suit, which alleges substandard living conditions, Texas sent one of their own state inspectors in to the jail. On December 4th a report was released by the Texas Commission on Jail Standards which found no problems with the facility during the inspection. One week later the Colorado prisoners, frustrated and angry over their plight, erupted in a melee that rolled through the jail for two hours.

The riot began at 3 a.m. when guards went into one of the 24-man dorm-style living units and attempted to pull down towels and blankets that prisoners had put up to shield their eyes from lights which are left on 24 hours a day. A scuffle broke out between guards and prisoners of that unit, and the rumble quickly spread to other units. Some prisoners broke into an adjacent hallway and tore out light ...

$7,639.20 Awarded in Retaliatory Transfer

Afederal district court in Iowa awarded $7,639.20 in compensatory and punitive damages to a prisoner who was transferred from an Iowa state prison to Arizona in retaliation for suing and filing grievances against Iowa prison officials. The plaintiff, Alfonso Sisneros, was largely successful on his retaliation claim. However ...

No Immunity for AIDS RA Claim

Afederal district court in New York has held that a state agency, the DOCS, did not enjoy immunity from suit under 29 U.S.C. § 794, the Rehabilitation Act (RA). Edward Timmons, a New York state prisoner, was wrongly diagnosed as having AIDS in 1984. As a result of the misdiagnosis he was placed in an "AIDS room" in the prison infirmary. In 1987 Timmons requested an HIV test to confirm the AIDS diagnosis, this was initially denied but after filing administrative grievances he was eventually retested and found to have neither HIV nor AIDS. Timmons filed suit contending that his segregation without a confirmatory AIDS test and the conditions of confinement in the AIDS room violated his eighth and fourteenth amendment rights. The district court dismissed some of the claims and set the RA claim for trial. It is worth noting that Smith Kline BioMedical Laboratories settled the portion of the suit against them.

The court dismissed claims against several prison officials by holding they were nether involved nor responsible for Timmons' treatment. The court held that prison officials were entitled to qualified immunity on the claim that placement in the AIDS room without a confirming test was unconstitutional ...

Partial Filing Fee Allowed

The ninth circuit explicitly reaffirmed prior rulings which permit the district courts to collect a partial filing fee from prisoner litigants. Two California state prisoners sought to file § 1983 lawsuits in federal court. Both requested permission to proceed in forma pauperis, without paying the filing fees. The district court held they could not afford to pay the entire fee but instead ordered a partial filing fee. The prisoners appealed contending that 28 U.S.C. § 1915 permits district courts to require full fees or to waive all fees, but does not grant them authority to require a partial fee.

The court stated "We take this opportunity to make the apparent explicit: Courts have discretion to impose partial filing fees under the in forma pauperis statute." "Our decision in Alexander v. Carson Adult High School , 9 F.3d 1448 (9th Cir. 1993) settled the matter." In that case the court set forth the standard courts must apply in requiring partial filing fees. The court noted "Courts do not articulate standards of review and tests for the exercise of discretion that the law prohibits."

The power to waive fees also includes the power to set partial fees. The court cites rulings from ...

BOP Multiple Cell May Violate Constitution

Afederal district court in New York has held that providing prisoners with 29 square feet of living space, per prisoner, in a multiple person cell may violate the constitution's ban on cruel and unusual punishment. Andrew Karacsonyi, a federal prisoner, filed suit because of conditions he was subjected to for refusing to participate in the Bureau of Prisons' (BOP) Inmate Financial Responsibility Program (IFRP) which seeks to force prisoner to pay fines and restitution while imprisoned. The defendants filed a motion to dismiss the suit for failure to state a claim. The district court granted the motion in part and dismissed Karacsonyi's claims involving the IFRP, being denied furloughs and permission to work in the BOP's Unicor slave labor program.

The court held that Karacsonyi had stated a claim with regards to his claim that he was placed in a four man cell. The cell in question contained two bunk beds, a toilet, sink and stand up locker and measured 115 square feet. The court noted that the Supreme Court has held that double celling prisoners in 63 square foot cells does not violate the constitution because it did not lead to deprivations of food, medical care ...

Failure to Provide Medical Treatment Unlawful

The court of appeals for the fourth circuit has held that jail guards have a duty to provide medical care for injuries resulting from attacks by other prisoners. Failure to do so may subject them to eighth amendment liability. In its ruling the court maps out the elements of a failure to protect claim. In this case the court remanded the case for further proceedings, in part, because the lower court's ruling was unclear as to the factual basis of its findings.

Eric Brice was a detainee in the Virginia Beach jail when he got into a fight with another prisoner. Jail guard John Nieves broke the fight up and placed both prisoners into their cells. Several hours later Nieves took Brice to the hospital for treatment because his jaw had been broken in the fight. Brice filed suit claiming jail officials and Nieves had violated his eighth and fourteenth amendment rights by failing to protect him from attack by other prisoners and by not providing him with adequate medical treatment. The district court conducted a bench trial and dismissed all the defendants but Nieves. The court later ruled in Nieves' favor finding that Brice had suffered injury in ...

Court Access in Massachusetts DDU Challenged

Afederal district court in Massachusetts expressed severe reservations about the court access afforded to prisoners confined in that state's control unit, or Departmental Disciplinary Unit (DDU). Manuel Ferreira was placed in the DDU after being infracted for allegedly leading a group demonstration. He filed suit on several issues relating to his DDU placement and disciplinary hearing, all of which were dismissed.

While Ferreira did not present any evidence that he had suffered actual injury from a lack of law library access "he has presented evidence of systemic deprivations, lack of adequate materials on civil procedure, prison and constitutional laws, inability to pass or receive legal materials from other inmates, lack of any guides for researching the DDU law library system, and no alternative methods of access to the courts such as an inmate trained person in the law. He has also presented evidence that he requested certain legal materials which were not provided, or Xeroxed, and that he could not obtain legal materials without a citation." The prison official defendants disputed the amount and method of access to legal materials afforded DDU prisoners. The court held this created a disputed issue of material fact requiring a trial.

The court ...

CDC Hobby Shop Ruling Affirmed

In the February, 1995, issue of PLN we reported In Re Yakle , the habeas corpus petition granted by a California state Superior Court which held that Section 3100(a) of 15 California Code of Regulations, required the California DOC (CDC) to establish and maintain a hobbycraft program at the Susanville Correctional Center. The original ruling was an unpublished order and it has been affirmed in an unpublished ruling. While it cannot be cited as binding precedent California prisoners will find the decision useful.

Lassen County Superior Court Judge J. Harvey issued a writ of habeas corpus on August 16, 1994, which ordered the California Department of Corrections (CDC) to establish a hobby program and store materials at the California Correctional Center (CCC) at Susanville. Steve Yakle, a CCC prisoner, was transferred to CCC from Folsom, where he participated in a hobby program. Upon arrival at CCC he was informed that the prison had no hobby program nor would it store the hobby materials he had purchased at Folsom. Yakle filed a writ of habeas corpus contending that California prison rules required CCC to have a hobby craft program. Judge Harvey agreed.

The CDC appealed Judge Harvey's ruling contending that ...

NC Prisoners Riot in Tennessee

On October 28, 1995, more than 100 North Carolina prisoners at the Corrections Corporation of America owned private prison in Mason, TN rioted, demanding to be returned to North Carolina. The prisoners smashed toilets and sinks and knocked a hole in a dormitory wall. Guards at the prison ended the riot by pumping pepper gas into the two dormitories that had been seized by the prisoners. No injuries or deaths were reported at the prison.

The medium security prison houses 455 state and federal prisoners on a contract basis. The 111 North Carolina prisoners had been sent to the prison involuntarily by the NC DOC and they complained about being separated from their families. Tipton County Sheriff Buddy Lewis said: "They are very unhappy because they are over here and they want to go back to North Carolina. They totally demolished the dormitory areas they were in." After the uprising the prisoners were moved to the Shelby County jail in Memphis.

Fabricated Charges State Claim

The court of appeals for the second circuit has held that a prisoner alleging guards had planted contraband in his cell in retaliation for prior lawsuits had presented sufficient evidence to proceed to trial. The court also held that the federal § 1983 suit wasn't barred by an unsuccessful state suit on the same issue. Armando Colon, a New York state prisoner, filed suit claiming that in retaliation for two prior lawsuits, prison officials had retaliated against him by planting a shank and marijuana cigarettes in his cell, then finding him guilty of the offense at a disciplinary hearing. Colon claimed that these actions violated his rights to petition the government for redress of grievances and due process.

At the disciplinary hearing Colon claimed he was framed and noted that because he was asthmatic he could not smoke marijuana, he had no history of weapons possession, one witness stated he had seen Colon's cell after it was allegedly searched and it did not appear to have been searched, another witness testified he had seen a guard enter Colon's cell with a shank in his pocket. The hearing officer did not allow Colon to ask the searching guard if ...

Ninth Circuit Rejects Disciplinary Double Jeopardy

The ninth circuit has joined the third and second circuit in holding that prison officials do not violate the double jeopardy clause of the constitution by subjecting a prisoner to administrative disciplinary proceedings and later to criminal prosecution. It is the first ninth circuit case to specifically discuss application of recent double jeopardy cases involving forfeitures and reject their application to prison. Reggie Brown is a federal prisoner who, during a riot, was administratively charged with assaulting a guard, riot, attempted murder and destruction of government property. At the disciplinary hearing Brown was found guilty of the charges, lost 41 days of good conduct time and was transferred to a higher security prison. He was later indicted for assaulting the guard and destroying government property. He moved to dismiss the indictment on double jeopardy grounds and the district court denied the motion. The ninth circuit court of appeals affirmed.

Prior cases have long held that the bar on double jeopardy doesn't prevent criminal prosecution of charges in which prison officials have already imposed administrative punishment. See: United States v. Apker , 419 F.2d 388 (9th Cir. 1969). Brown argued that these cases had been overruled by United States v ...

Sandin Applied Retroactively

In the August, 1995, issue we discussed the supreme court's decision in Sandin v. Connor , 115 S.Ct. 2293 (1995) which held that states do not create a due process liberty interest in their regulations unless there is a "substantial" deprivation at issue. The first circuit case to apply this is a ruling from Hawaii. Sabil Mujahid was infracted and punished with fourteen days in segregation for talking with a prisoner from another unit. He filed suit claiming his due process rights were violated. The district court dismissed his suit and the court of appeals for the ninth circuit, in a brief ruling, affirmed.

Mujahid had argued that he had a state created liberty interest in remaining free from disciplinary segregation. The appeals court conceded that based on its pre- Sandin cases they would have agreed but that Sandin has overruled these decisions. Because Mujahid was placed in segregation and did not lose any good time the court concluded there was no liberty interest at stake and hence no right to due process. In a footnote the court held that Sandin applies retroactively because the supreme court applied the new rule to the party before it in Sandin . See ...

 

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