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Prisoner Education Guide

Prison Legal News: March, 1996

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Volume 7, Number 3

In this issue:

  1. Prisoner ADA Suit Wins at Trial (p 1)
  2. GCI Corruption Continues (p 3)
  3. Lying Pathologist Imprisoned (p 3)
  4. From the Editor (p 4)
  5. Pro Se Tips and Tactics (Individual and Official Capacity Suits) (p 5)
  6. Texas Medical Charge May Violate Due Process (p 6)
  7. National Convocation May 18-22 (p 7)
  8. How Many Times Do We Pay? (p 7)
  9. Qualified Immunity for ADA Suit (p 8)
  10. Interlocutory Appeals Discussed (p 9)
  11. Atlanta Jail Official Arrested (p 9)
  12. The Cost of Litigation (p 10)
  13. Case Updates (p 11)
  14. Legal Materials Available (p 12)
  15. Soledad Brother (p 12)
  16. Attorney Fees for Consent Decree Enforcement (p 13)
  17. Texas Guard Gets Probation for Killing Prisoner (p 13)
  18. Florida Chain Gangs (p 14)
  19. Forced Labor for Arizona Death Row Prisoners (p 14)
  20. Virginia Class Action Members Sought (p 15)
  21. Exposure to Fumes Violates 8th Amendment (p 15)
  22. Clippings Suit Set for Trial (p 16)
  23. Fact Disputes Not Immediately Appealable (p 16)
  24. Contempt Ruling Against LA Prisoncrats (p 17)
  25. No Specific Intent Required for 8th Amendment Claim (p 17)
  26. Seventh Circuit Discusses Sandin (p 18)
  27. Transexuals Entitled to Treatment (p 19)
  28. Private Prisons Get Qualified Immunity (p 20)
  29. Law on Retaliation Clearly Established in 2nd Circuit (p 20)
  30. Guard's Rectal Search States Claim (p 21)
  31. Prison Officials Can't Moot Law Library Suit by Transfer (p 21)
  32. Washington State Sues Over Aliens (p 22)
  33. News in Brief (p 22)
  34. US Supreme Court Grants Review in Forfeiture Cases (p 23)
  35. Muslims Granted TRO (p 23)

Prisoner ADA Suit Wins at Trial

by John Emry, Attorney at Law

Below is a report of a trial and recent retrial [ Cleo Love v. Westville Correctional Center, USDC, Northern District, South Bend Division, Indiana; 3:94CV0371RM] which had interesting results:

Plaintiff, a quadriplegic confined to a wheelchair for several years, was committed to the custody ...

GCI Corruption Continues

In the September '94 and June '95 issues of PLN we reported the ongoing probes into corruption at Glades Correctional Institute (GCI), a medium security prison located near West Palm Beach Florida. In Turner v. LaMarca , 995 F.2d 1526 (11th Cir. 1993), a federal court found that GCI prisoners were routinely raped and brutalized with the full knowledge and acquiescence of prison staff during the 1970's and 1980's. An appeals court in another case cited rampant staff corruption, noting: "The contraband problem was compounded by staff corruption, as prison officials contributed to, and apparently profited from, the contraband, and utilized prisoners to 'control' and punish other prisoners."

A March 1994 investigation found that GCI was paying $5.42 for a tube of toothpaste that sells for $.97 in drugstores. Despite the fact that the GCI purchasing manager is a personal friend of the supplier who reaped exorbitant profits, the contract was not terminated and the purchasing manager was never disciplined.

In January of 1995 six prisoners escaped from GCI through a tunnel under the chapel. The escape received national media attention and prompted a grand jury probe into GCI. Among other deficiencies, the grand jury noted that ...

Lying Pathologist Imprisoned

For more than ten years, Ralph Erdmann was a busy West Texas forensic pathologist. He worked in over 40 counties, billing Lubbock County alone $140,000 for over 400 autopsies in one year. Many of Erdmann's autopsy reports were presented as evidence in criminal trials, some of them death penalty cases. The only problem was that Erdmann never performed many of the autopsies. He simply wrote and submitted fake autopsy reports, and collected his fee.

When Texas authorities finally caught on to him in 1992, he pleaded no contest to seven felony charges and was sentenced to ten years probation.

A short time later Erdmann moved to Redmond, a suburb of Seattle, WA. In August of 1995 he was convicted for felony possession of a machine gun and sentenced to one year in Seattle's King County Jail. Had he been prosecuted under federal charges for possession of the machine gun, he would have received a considerably longer sentence. As it was, with credit for time served and good time, he was released in November.

After his release, he returned to Texas for a probation revocation hearing. Texas State District Court judge, Andy Kupper, revoked Erdmann's probation and ...

From the Editor

In my October editorial I asked readers what they would like to see more of in PLN as well as any suggestions on how we could improve our content. One of the respondents, Richard Barker, said he would like to see more case law. As far as case law goes, we are dependent on the rulings published by the courts as far as what we do and don't cover. Back in 1990 PLN didn't publish many prison cases because not that many were issued. Since then both the number of prison cases published by the courts and in PLN has increased. We will continue to run most prisoner "wins" and other relevant cases but we will be sticking to our present mix. Part of the reason is that a significant part of our readership isn't too interested in the nuts and bolts of prison litigation but just wants to stay up on the activism and news end of things.

But there's another reason we don't cover only court related information. The bottom line is that right now American prisoners as a class are suffering massive defeats on every front: legislative, political, judicial and public opinion ...

Pro Se Tips and Tactics (Individual and Official Capacity Suits)

[Editor's Note : With this issue of PLN we would like to introduce a new feature that our readers should find useful. John Midgley is an attorney with the Institutional Legal Services Project of Columbia Legal Services in Tacoma. He has been doing prison and criminal litigation in Washington state for almost 20 years and in my opinion is one of the best attorneys in the state. He is very familiar with the problems faced by pro se prisoner litigants. On a quarterly basis his column on prison litigation will appear in PLN (March, June, September and December). Each one will cover an aspect of civil procedure that tends to be complex and difficult to maneuver for many litigants. These aspects, such as eleventh amendment and qualified immunity, discovery, etc., are an area of law almost completely different from prisoners' substantive rights (i.e., the eighth amendment, free speech, etc.,) that we generally cover in PLN . Many times courts never reach the merits of prisoner litigation because they become enmeshed in the procedural aspects, this is something we hope to help resolve. The column will be ongoing so let us know if there are any topics in particular that you ...

Texas Medical Charge May Violate Due Process

Afederal district court in Texas has held that a prisoner's claim that he was wrongly charged for medical services should proceed to trial. Creighton Delverne is a convicted state prisoner who was awaiting transport to the state's prison system but was backlogged in the Harris County (Houston), TX jail. Under Tex. Code Crim. Proc. Ann. Art. 104.002(D) prisoners in county jails are required to pay for all medical, dental and health related services they receive. The Harris county jail charges its detainees between ten and sixteen dollars per visit to see a medical professional, pharmacy services are $3 per prescription. The statute allows the county to initiate a civil action to recover any fees owed.

Delverne filed suit claiming that he should not have to pay the fees because he was a state prisoner and the state was already reimbursing the county for his stay in the jail. The court rejected that claim. He also claimed that his right to equal protection was violated because he is indigent. The court rejected this noting that in American (i.e. capitalist) jurisprudence poverty and indigence do not constitute suspect classes for fourteenth amendment purposes. The court examined the ...

National Convocation May 18-22

The 1996 National Convocation of Jail and Prison Ministry will be held May 18-22, 1996 at the National 4-H Center, 7100 Connecticut Avenue, Chevy Chase, Maryland. The theme of this year's gathering is "Fear and Violence in America: Building Bridges in a Prison Society." Keynote speakers, panelists, and workshop presenters will address the multiple injustices of the criminal justice system. For further information or registration forms, write or phone (not collect, please): National Convocation of Jail and Prison Ministry 1357 East Capitol Street, S.E., Washington, DC 20003. (202) 547-1715.

How Many Times Do We Pay?

Across the country a litany of political voices have been raised demanding that prisons become tougher. One expediently popular way to achieve this punitive nirvana is to eliminate inmate "perks" such as televisions, weight lifting equipment and coffee pots. The idea being -- I guess -- to make prisons such pits of boring despair and idle desperation that a reasonable person would think twice before committing a crime.

Just two problems with the concept. First, most people who commit crimes don't think; at least to the point where they could be incarcerated if caught. Second, our prisons are not the lauded country clubs some would have us think them to be.

On the national level, Representatives Dick Zimmer (R-NJ) and Steve Chabot (R-OH) have added amendments to the 1995 "Contract On America" crime bill that will restrict prison construction grants allocated in the 1994 crime bill even more. In addition to forcing states to modify their own penal codes, dictating that their prisoners must serve 85% of their increasingly long sentences, the state penal systems must now; ban weight training equipment and the menial in-cell amenities of personally purchased televisions, electronic musical devices, typewriters, etc. to qualify for the largesse of ...

Qualified Immunity for ADA Suit

The court of appeals for the fourth circuit ruled that Virginia prison officials were entitled to qualified immunity from an obese prisoner's suit filed under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). The court went into extensive detail discussing the ADA, its application to state prisons and the fact that while the law on ADA's applicability to state prisons was not clearly established at the time this case arose, it is now. This is the first published circuit court case to discuss the applicability of the ADA to prisons. This is also a case where the appeals court did everything it could, short of sommersaults, to reach a ruling in favor of prison officials despite statutes holding the contrary.

In the April, 1995, issue of PLN we reported Torcasio v. Murray , 862 F. Supp. 1482 (ED VA 1994). Torcasio was an extremely obese Virginia state prisoner, weighing some 460 pounds. He filed suit under 42 U.S.C. § 12132 (ADA) and 29 U.S.C. § 794 (RA) and the eighth and fourteenth amendments to the constitution claiming that prison officials had violated his statutory and constitutional rights by failing to make any accommodations for ...

Interlocutory Appeals Discussed

The eighth circuit court of appeals has distinguished recent supreme court decisions as to when interlocutory appeals can be heard by appeal courts. Gerry Reece, a Missouri state prisoner, was in protective custody due to being a DEA informant and a snitch in a murder trial. While in his cell the tier "walkman," the prisoner who cleans the unit, threw hot water on him, badly burning him. Guards then refused to summon medical help for Reece until several hours had passed. Reece filed suit claiming prison officials showed deliberate indifference to his safety needs. The defendants moved for summary judgment on qualified immunity grounds contending Reece had no clearly established right to personal safety. The district court denied the motion and the defendants appealed.

The appeals court discussed its jurisdiction in the context of recent supreme court decisions involving interlocutory appeals, Swint v. Chambers County Commission , 115 S.Ct. 1202 (1995) and Johnson v. Jones , 115 S.Ct. 2151 (1995), [ PLN , Sep, 1995]. In Swint the court held that appeal courts lack jurisdiction to hear pendent issues, not directly related to qualified immunity issues. In Johnson the court held that issues related to facts and the sufficiency of the evidence ...

Atlanta Jail Official Arrested

Asenior Atlanta City Jail official was suspended from her job after being arrested on federal charges of attempting to hire a hit man to kill her boyfriend (the father of her young son), and the boyfriend's wife.

Rosetta Lee Soares, deputy director of Atlanta's Department of Corrections, was being held (as of Nov. 30, 1995) on $100,000 bond. Soares, 45, plans to plead innocent to the charges. The hit man she had arranged to do the job was an FBI informant. In a search of her home, FBI agents found a shotgun she allegedly was going to give the informant to do the job. Agents also found what is believed to be cocaine and marijuana in the search of her home.

Soares agreed to pay $2,500 for the murders. In one meeting with the hit man she asked him to kill the boyfriend's wife first, and then kill the boyfriend, so that she and her son would then inherit his estate.

Source: Corrections Digest

The Cost of Litigation

by an Arizona Reader

In an era of prison bashing the focus on "frivolous lawsuits" rests fundamentally on those filed by prisoners. The question, "Why are the lawsuits necessary?", has yet to be asked, or answered. The turn-of-the-coin may, in a small but fundamental way, be illuminated in the holdings of the United States District Court, Senior Judge, the Honorable Carl A. Muecke, concerning the Arizona Department of Corrections (ADOC), Executive Director, Samuel A. Lewis, and his attempt to ban adult magazines.

A brief history of the lawsuit [ Hook v. Arizona , CIV-73-97-PHX-CAM], is necessary to grasp the import of the decisions. The lawsuit spans more than twenty-one years. Originally, the lawsuit arose, in part, from a dispute about mail regulations and restrictions.

In 1973, the parties entered into a stipulated Consent Decree. This decree included a comprehensive scheme of mail regulations. Among several other issues, the inmates claimed they had constitutional rights to receive Playboy , as well as the right to send and receive mail and certain types of letters. The Decree was amended one time, on May 10, 1974.

On October 4, 1990, Director Lewis attempted to institute a new policy concerning the Christmas food gift package portion of ...

Case Updates

Women Prisoners : In the November, 1995, edition of PLN we reported the appeal court's decision in Pargo v. Elliot , 49 F.3d 1355 (8th Cir. 1995) in which the appeals court reversed and remanded the case for the lower court to determine whether women prisoners in Iowa were similarly situated to male prisoners for the purposes of their equal protection claim challenging their conditions of confinement. On remand the district court applied the appeal court's ruling and in a lengthy and extensive ruling examining virtually all aspects of the women prisoner plaintiffs' claims the court again dismissed the suit in its entirety holding male and female prisoners were not similarly situated for equal protection purposes. The court also held that the differences in programs available to the two groups of prisoners did not violate equal protection. See: Pargo v. Elliot , 894 F. Supp. 1243 (SD IA 1995). This is the second time the district court has dismissed the case.

RFRA : In the August, 1994, edition of PLN we reported Malik v. Brown , 16 F.3d 330 (9th Cir. 1994) which concerned a Washington state prisoner's challenge to Clallam Bay prison regulations punishing him for using his religious ...

Legal Materials Available

The Prisoners Self Help Legal Clinic (PSHLC) in New Jersey is a volunteer project of the ACLU and is made up of attorneys, former prisoner paralegals, law students, civil rights advocates and other members of the community who assist pro se prisoner litigants. The PSHLC's concept is, like PLN 's, one of self reliance. To this end they have published a series of monographs that give a concise rundown in plain language of prisoner rights on a variety of subjects. Some of the topics (filing a tort claim, small claims) are specific to New Jersey state courts, but the remaining publications are useful to prisoners in other states. These include: brutality in prison, conditions of confinement, legal research, disciplinary practice and procedure, medical care, pro se practice/filing a 1983 action, rights to visitation in prison, habeas corpus and parole.

Readers will also be interested to know that some of the monographs are available in Spanish for prisoners who cannot read English. The monographs are extremely affordable at only $1.50 each or the entire set for only $10.00. The PSHLC also publishes a newsletter titled The Bridge which is filled with legal information that mainly affects New ...

Soledad Brother

Review by Elizabeth Schulte

This is a particularly relevant time to reissue Soledad Brother: The Prison Letters of George Jackson. This collection of letters that prisoner and activist George Jackson wrote from 1964 to 1970 speaks strongly of the brutality in the U.S. justice system. According to an October Bureau of Justice Statistics report, the U.S.'s prison population exceeds 1 million, the largest number ever in history. The number of prisoners grew by almost 40,000 during the first half of 1994 alone, which amounts to more than 1,500 people a week. The jails are packed to the gills, and they're filled with young blacks, Latinos and poor whites.

At the age of 18, George Jackson was sentenced to a year to life for allegedly stealing $70 from a gas station. Like so many victims of the U.S. "justice" system he had no means to fight the charges against him. Imprisoned in Soledad prison in California, the majority of the time in solitary confinement, Jackson was transformed into a voice of the prisoners' rights movement and a defiant chronicler of life in the U.S.

Out of the desperation and outrage that comes with ...

Attorney Fees for Consent Decree Enforcement

The ninth circuit court of appeals partially reversed a district court ruling that use of 37mm gas guns was not appropriate for use on mentally ill prisoners and it affirmed an award of some $200,000 in attorney fees in monitoring a consent decree but reversed as to attorney fees ...

Texas Guard Gets Probation for Killing Prisoner

In the September '95 issue of PLN we reported the manslaughter conviction of Joel Lambright, Jr. He was the first Texas prison guard in history to be convicted of killing a prisoner. He was sentenced to serve a two to ten year sentence. After serving just three months of that sentence, however, Lambright was granted probation. District court judge Joe Ned Dean granted a motion from Lambright's attorney to place his client on "shock probation," according to reports from Texas newspapers.

Defense attorney Travis Kitchens, who represents Lambright, said the purpose of shock probation is "to give a person who has never been in prison before a taste of prison in the hope that it persuades them not to get in trouble again." It is not clear how Lambright, a former prison guard, would fit the profile "never been in prison before." And considering that he was convicted of beating a prisoner to death, Lambright presumably is quite familiar with the taste of prison.

Lambright, 21, son of a former Corrigan, TX police chief, was released from prison and permitted to return to his Corrigan home. Latham Boone, lead prosecutor in Lambright's case, told reporters that he had ...

Florida Chain Gangs

In November, 1995, Florida became the third state, after Alabama and Arizona, to institute prison chain gangs. The prisoners work in 20-man crews, supervised by three gun toting guards. Prisoners are assigned to serve on the chain gang as punishment for disciplinary infractions.

The prisoners wear ankle chains, but are not shackled together. This infuriates Republican state Sen. Charlie "Chain Gang Charlie" Crist who wrote the legislation. Crist had wanted five prisoners chained to each other, the way Alabama does it. "We said chain gangs, and that means chained together."

But Crist was overruled by DOC Secretary Harry Singletary, who deemed that more work could be done if prisoners were not shackled together. "This is the whole reason to send people out to work every day," said a DOC spokesman. "You can get more work done if people are not chained together."

The executive director of the National Prison Project of the ACLU, Alvin Bronstein, said the ACLU would not file suit against the Florida chain gang law. He said the Alabama chain gang led to more injuries among prisoners - for example, when someone tripped and fell, dragging others down with them. Bronstein said the Arizona and Florida versions were ...

Forced Labor for Arizona Death Row Prisoners

On November 22, 1995, a memo was distributed to Arizona's 119 death row prisoners. The memo relays an order issued by DOC chief Sam Lewis. It states in part: "Arizona Revised Statute 31-151 gives the Director of Corrections authority to require that each able bodied prisoner in the department engage in hard labor for not less than forty hours per week.... Be advised that the statutes do not exempt you, because of your Death Sentence, from performing work or hard labor, nor is it unconstitutional This program is an opportunity for you to improve your status while on Death Row. Even though hard work may be considered as punishment, it does provide you with a means to earn some money [10 cents an hour], and you are able to perform an assignment that is beneficial to the inmate population as a whole, while working in the garden growing vegetables.

"Inmates refusing to turn out for work assignments shall be forcibly removed from their cells and taken to the work cite, secured accordingly [chained to a post under the hot Arizona sun all day], and then be subjected to the disciplinary process."

The forced labor program was announced by governor ...

Virginia Class Action Members Sought

In 1982 Virginia state lawmakers passed Section 53.1-151 (B1), dubbed the "3-Time Loser Law." The law was modified several times over the years. The most recent rewrite, in 1994, reads, "Any person convicted of three separate felony offenses of (i) murder, (ii) rape, or (iii) robbery by the presenting of firearms or other deadly weapon, or any combination of the offenses specified in subdivisions (i), (ii), or (iii) when such offenses were not part of a common act, transaction or scheme shall not be eligible for parole. In the event of a determination by the Department of Corrections that an individual is not eligible for parole under this subsection,...."

It is this last part, the language that gives the DOC the discretion to determine who is and who is not eligible for parole, that VA prisoners want to challenge in a class action. It is not uncommon for prosecutors to promise defendants that their crimes will be "certified" as being "part of a common act, transaction or scheme," in exchange for a plea of guilty. The defendant is under the impression that whatever sentence he/she receives will include parole eligibility. When they are handed over to the DOC ...

Exposure to Fumes Violates 8th Amendment

The court of appeals for the ninth circuit has held that it violates the eighth amendment to expose a prisoner to noxious fumes while he is locked in his cell. The court also discussed the application of qualified immunity in such cases. Steven Kelley is a California state prisoner. While he was locked in the Folsom prison's Security Housing Unit (SHU), Lawson Mechanical Contractors were working on the air supply ducts. The unit was on lockdown status. Kelley complained to unit guards that fumes entering his cell were making him sick and he requested to be let out of his cell. The guards told him they needed permission from their superiors, which was denied. Kelley told the guards the fumes were killing him. He eventually lost consciousness and was taken to the infirmary.

Kelley filed suit claiming the guards showed deliberate indifference to his serious medical needs by leaving him in his cell until he was overcome by fumes. Lawson Contractors settled the portion of the suit against them. A court ordered examination concluded that Kelly did not suffer any long term or lasting ill effects from the gas exposure. The lower court concluded that Kelley had stated an ...

Clippings Suit Set for Trial

The court of appeals for the second circuit held that whether a New York DOCS policy prohibiting prisoners from receiving newspaper clippings furthered a penological interest was doubtful and needed to be resolved at trial. Jimmie Allen filed suit against various prison officials after they twice removed newspaper clippings from his personal mail, claiming they were contraband. Allen claimed the seizure of his clippings violated his first amendment rights. The district court dismissed the suit, holding that no genuine issue of fact existed regarding the policy and that the defendants were entitled to qualified immunity. The appeals court affirmed the qualified immunity ruling but reversed and remanded the case for a trial on the claims for declaratory and injunctive relief.

New York DOCS regulations allow prisoners to receive magazines, books and periodicals from any source, subject to a six day delay while being inspected. Newspapers must come directly from the publisher due to their bulk which makes inspection more difficult. New York prisoners are prohibited from possessing anything designated as "contraband." When Allen was sent two clippings from his hometown newspapers they were seized as contraband purportedly because they were newspapers subject to the "publishers only" rule. Application of the ...

Fact Disputes Not Immediately Appealable

The court of appeals for the eighth circuit has ruled that it lacks jurisdiction to hear interlocutory appeals by prison officials challenging the sufficiency of the evidence against them. Milton Sanders, a Missouri state prisoner, filed suit claiming his eighth amendment rights were violated when prison officials celled him with a heavy smoker and on a top bunk in direct contravention to doctor's orders that he sleep on a bottom bunk and be in a non-smoking cell.

The defendants filed a motion for partial summary judgment claiming they were entitled to qualified immunity for their actions contending that prisoners did not have a clearly established right to a smoke free environment. Sanders responded by alleging that since their motion was filed he had been forced to cell with a smoker for fifty days. The district court denied the defendants' motion, holding that there was a factual dispute as to the defendants' deliberate indifference to Sanders' serious medical needs. The court issued an injunction barring the defendants from celling Sanders with a smoker during the pendency of the proceedings. The defendants filed an appeal to the eighth circuit.

The eighth circuit held that under Johnson v. Jones , 115 S.Ct ...

Contempt Ruling Against LA Prisoncrats

U.S. district judge Frank Polozola ruled that Louisiana Secretary of Corrections Richard Stalder and Angola Warden Burl Cain be held in contempt. He ordered them each to contribute $1,000 to a victim compensation fund. Stalder, Cain, other wardens, assistant wardens and assorted prisoncrats were all ordered by judge ...

No Specific Intent Required for 8th Amendment Claim

The ninth circuit has held that for prison guards to violate the eighth amendment's ban on excessive force they need only have an intent to cause harm and do not need an intent to harm a specific, individual prisoner. This right was clearly established and guards were not entitled to qualified immunity.

The court also affirmed liability of guards present during the shooting who did nothing to intervene. Charles Robins, a Nevada state death row prisoner was shot in the foot when prison guards fired a shotgun at another prisoner and the birdshot ricocheted and hit Robins. Robins filed suit claiming that the shooting violated his eighth amendment rights. The defendants claimed they were entitled to qualified immunity and that Robins' claims should be dismissed because they did not have an intent to harm him. The district court denied the motions and the defendants appealed. The appeals court affirmed the lower court ruling and remanded the case for trial. Readers will note that Nevada and California are, to the best of our knowledge, the only prisons which station armed guards within their housing units. A class action suit challenging Nevada's shooting policy is underway. [ PLN , Jul. 1994.]

The ...

Seventh Circuit Discusses Sandin

In the August, 1995, issue of PLN we reported the supreme court's ruling in Sandin v. Conner , 115 S.Ct. 2293 (1995), which essentially gutted prisoners' right to due process in prison disciplinary hearings. Sandin opened up more questions than it purported to answer and we predicted that the lower courts would be grappling with this ruling for some time and they would ultimately determine how far prisoners' due process rights would be rolled back. This is the first published circuit ruling to interpret Sandin and in it the seventh circuit doesn't do much to resolve the uncertainty created by Sandin .

Larry Whitford, an Illinois state prisoner, filed suit after a prison disciplinary committee convicted of him of assault and sentenced him to six months in segregation, six months loss of good time credits and a transfer to a maximum security prison. Whitford claims he only witnessed a fight between two other prisoners and was in no way involved in it. Both prisoners provided affidavits supporting Whitford's claim. Whitford sued the members of the disciplinary committee, investigating officers and their supervisors claiming his due process rights were violated because they did not conduct an impartial investigation, consider ...

Transexuals Entitled to Treatment

The court of appeals for the tenth circuit has held that transsexual prisoners state a cause of action under the eighth amendment when they are not provided with any medical treatment by prison officials. The court also held that parties must be given notice when a lower court converts a motion to dismiss into a motion for summary judgment. Josephine Brown, a Colorado state prisoner, filed suit claiming she was not given any treatment for her condition of "gender dysphoria," which is a medically recognized psychological disorder. [ Editors' Note : There is a body of case law concerning the right to treatment for transsexual prisoners. This ruling cites many of those cases. See also, PLN , Vol. 4, No. 7, The Transsexual in Prison-A Focal Point; by Lofofora Contreras.] Brown claimed violation of her eighth and fourteenth amendment rights. The lower court issued a show cause order stating it would dismiss the complaint if Brown did not explain how each of the defendants had violated her rights. The defendants also filed a motion to dismiss which the lower court converted into a summary judgment proceeding and dismissed the action.

The appeals court noted that the lower court had made a procedural error ...

Private Prisons Get Qualified Immunity

As the number of privately run, for profit, prisons grows, so too will litigation involving them. There is little case law involving private prisons. In this case a federal district court held that employees of a prison (run by the Wackenhut Corporation) in Louisiana were entitled to qualified immunity as well as eleventh amendment immunity.

Two prisoners at the Allen Correctional Center (ACC) filed suit claiming they were beaten by prison employees and then denied medical treatment for their injuries. All the defendants were. Wackenhut employees and they sought dismissal of the suit under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted, and claiming qualified immunity and eleventh amendment immunity.

Prison officials are entitled to qualified immunity from money damages. See: Procunier v. Navarette , 434 US 555, 98 S.Ct. 855 (1978). There is little law as to whether employees of private prisons are entitled to qualified immunity and what law there is, is in conflict. Manis v. Corrections Corporation of America , 859 F. Supp. 302 (MD TN 1994) held there was no immunity while Smith v. United States , 850 F. Supp. 984 (MD FL 1994) and Tinnen v ...

Law on Retaliation Clearly Established in 2nd Circuit

The court of appeals for the second circuit ruled that in 1990 the law in that circuit forbidding retaliation against prisoners who file grievances was clearly established and prison officials were not entitled to qualified immunity from money damages. The court also held that it lacked jurisdiction to ascertain the sufficiency of a prisoner's retaliatory evidence in an inter- locutory appeal. Raul Rivera, a New York state prisoner, was denied various privileges after he filed administrative grievances complaining of prison officials' incompetence. Rivera filed suit under 42 U.S.C. § 1983 claiming violation of various rights. The district court denied the defendants qualified immunity on the retaliation claim and refused to dismiss Rivera's equal protection and eighth amendment claims. The district court held there was a genuine issue of fact requiring a trial on the retaliation claim.

The defendants filed an interlocutory appeal claiming they were entitled to qualified immunity. They also asked the appeals court to review the sufficiency of the evidence Rivera had presented. The appeals court entered an order dismissing Rivera's equal protection and eighth amendment claims because he had not shown any deprivations rising to an eighth amendment or equal protection violation.

The ...

Guard's Rectal Search States Claim

Afederal district court in New York has ruled that use of a chokehold on an unresisting prisoner in order for guards, rather than medical personnel, to perform a digital rectal search states a claim to be resolved at trial. Narcissus Dellamore, a New York state prisoner, allegedly refused to allow himself to be strip searched. Prison guards then placed him into a chokehold, bent him over and inserted their fingers into his anus. Under New York DOCS policy cavity searches must be performed by medical personnel and not by untrained guards. Dellamore filed suit contending the search and chokehold violated his fourth and eighth amendment rights.

The defendants sought dismissal of the suit for failing to state a claim and they also sought summary judgment. The court denied both motions and set the case for trial. The court held that genuine issues of fact existed, requiring a trial, where the guards claimed they performed a strip frisk search while Dellamore claimed, in his affidavit, that he was rectally penetrated without a health care provider present. Prisoners retain a limited fourth amendment right to bodily privacy, see: Covino v. Patrissi , 967 F.2d 73 (2nd Cir. 1992). If a body cavity ...

Prison Officials Can't Moot Law Library Suit by Transfer

The court of appeals for the ninth circuit has ruled that prison officials cannot moot a court's order for injunctive relief by transferring the prisoner plaintiff to another prison. It also held that issues not raised in parties' opening appeal briefs won't be considered. Daniel Dilley, a California state prisoner, filed suit on the inadequacy of the prison law library in the Calipatria state prison. The district court held that undisputed facts showed that prison officials had failed to provide Dilley with constitutionally adequate access to the law library. The court did not award damages, holding prison officials were entitled to qualified immunity but it appointed a magistrate to act as a special master to recommend a plan to the district court to improve law library access.

In the plan presented to the court the magistrate recommended expanding the size of the library and its holdings; allowing prisoners access to the stacks or let them check out four books at a time; a training program for prisoner law clerks; increasing the length and frequency of prisoners' visits to the library; implementing a plan to schedule prisoners' library use; and providing more opportunities for prisoners with jobs to use ...

Washington State Sues Over Aliens

The state of Washington filed suit in federal district court on November 22, 1995. The suit seeks an injunction which would force the federal government to take all of Washington's 760 illegal alien prisoners (about 7% of the state's prison population) and house them in federal prisons.

A provision of the 1994 crime bill [See: "Federal Crime Bill Passes" Dec. '94 PLN ] states that the U.S. attorney general is either supposed to pay states the average cost of incarcerating illegal aliens or put them in federal prisons. The state applied for compensation ($17 million a year) but Janet Reno said that not enough money was appropriated to pay the full cost; she offered to pay 15 cents on the dollar. Washington's governor then asked Reno to take custody of the illegal aliens. Reno refused, citing a lack of money and prison space.

'No one else gets to ignore the law and pass the costs on to others," Washington's attorney general Christine Gregoire said in a statement. It is not known whether Ms. Gregoire had to put her shoe on the other foot before making this statement.

Several other states, including California, Texas, New Jersey and ...

News in Brief

Seychelles : This island nation in the Indian ocean has announced that for $10 million it will provide citizenship and a guarantee that persons taking advantage of this offer won't be extradited to any other country on criminal charges. The law states that $10 million buys citizenship and "immunity from prosecution for all criminal proceedings whatsoever." The only exception is violence and drug trafficking within the Seychelles. So far at least four people have come forward to take advantage of this offer.

Chile : On November 30, 1995, a group of 20 prisoners took 5 guards hostage after an escape attempt failed. The prisoners later released 2 of the guards who were suffering from gunshot wounds and shock. The prisoners complained of prison conditions and had four firearms.

WA : In September, 1995, George "Black" Johnson, the recently retired parole board member, won $100,000 in the state's Kino lottery.

MI : The state appeals court upheld the demotion of Travis Jones, a former warden at the Huron Valley Men's Facility, who lost a master key to almost all the prison's locks. Jones was demoted after breaking a directive requiring staff to promptly report any unusual incident which might attract ...

US Supreme Court Grants Review in Forfeiture Cases

On January 12, 1996, the US supreme court granted certiori and agreed to rule on a trilogy of forfeiture cases. The cases are: Degen v. U.S ., Case No. 95-173, which involves the question of whether a foreign property owner waives his right to contest a property forfeiture action when he has not traveled to the United States to confront a criminal indictment in a separate case; U.S. v. Ursery , Case No. 95-345 and U.S. v. 405K , Case No. 95-346, both of which involve the question of whether government forfeiture of property in a civil action wholly separate from a criminal action violates the double jeopardy clause of the constitution.

The lower courts in Ursery and 405k , for the sixth and ninth circuit respectively, both held that the double jeopardy clause is violated when the government first convicts a defendant in criminal proceedings and then forfeits his property and vice versa. [See PLN , Vol. 6, No. 4 and 9.]

The September, 1995, issue of PLN had an extensive article on this issue by Seattle attorney Jeffrey Steinborn titled: "Civil Forfeiture and Criminal Prosecution as Double Jeopardy: They Hogged US--Will They Be Held Accountable?" Mr. Steinborn will be part ...

Muslims Granted TRO

Afederal court in New York granted a Temporary Restraining Order (TRO) to Sufi Muslim prisoners which prevented the New York DOCS from implementing a policy banning the display of black Dhikr beads and banning possession of beads colored anything but black. The New York anti bead policy has also been enjoined in Campos v. Coughlin , 854 F. Supp.194 (SD NY 1994), [ PLN , Nov., 1994], where Santeria practitioners successfully gained a TRO regarding Santeria beads. Muslim prisoners sought permission to wear and display their Dhikr beads, which was denied by prison officials. Dhikr beads are strings of 33 or 99 beads used by Sufi Muslims while praying in order to remain conscious of the existence of Allah. The prisoners filed suit under the first amendment and the Religious Freedom Restoration Act (RFRA). The DOCS claimed its policy was a response to gang activity.

The court analyzed the prisoners' claim under the RFRA and examined its legislative history. [ Editor's Note : We will not go into great detail on the history of the RFRA because we have extensively covered it in past issues of PLN and assume reader familiarity with it.] The court held that the plaintiffs were entitled to the ...


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