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Prisoner Education Guide

Prison Legal News: May, 1996

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Volume 7, Number 5

In this issue:

  1. Citizen Anti-Crime Initiatives? How the Gun Lobby Bankrolls the War on Crime (p 1)
  2. From the Editor (p 5)
  3. State Murder Machine Picks Up (p 6)
  4. Texas Rent-A-Cells Burn (p 7)
  5. Texas Grooming Code May Violate RFRA (p 7)
  6. Texas Prison Developer Arrested in Escape Plot (p 8)
  7. VitaPro Fraud Scheme Unveiled in Texas (p 8)
  8. Spain and Belgium Abolish the Death Penalty (p 9)
  9. Dismissal of Women's Suit Affirmed (p 9)
  10. More Trouble in Texas Rent-A-Jails (p 9)
  11. Pennsylvania Prison Stormed (p 10)
  12. A Doctor in Prison (p 10)
  13. USP Atlanta Locked Down (p 11)
  14. Stunned in Pennsylvania (p 11)
  15. Michigan Parole Law Unconstitutional (p 12)
  16. Prison Rape Opponents Sue to Protect Award-Winning Web Site from Internet Censors (p 13)
  17. Sexual Assault During Search Illegal (p 13)
  18. Arizona Death Row Chain Gang Problems (p 14)
  19. Dismissal of Suit for Not Attending Deposition Reversed (p 14)
  20. Bad Apples in Florida DOC (p 15)
  21. Criminal Conviction Inadmissible Evidence (p 15)
  22. Jail Guards' Convictions Affirmed (p 16)
  23. Attorney Fee Award Upheld in Jail Suit (p 16)
  24. Complaint Need Not List Capacity Defendants Sued In (p 17)
  25. Jury Power in Action (p 17)
  26. Denial of Bed Linen States Claim (p 18)
  27. Litigants Must Be Given Writing Materials (p 18)
  28. Section 1983 Appropriate for Disciplinary Hearings (p 19)
  29. Retaliation Claims Survive Sandin, but PI Reversed (p 19)
  30. CDC Mental Health System Ruled Deficient (p 20)
  31. Summary Judgment Notice Must Be Given by Court (p 21)
  32. News in Brief (p 22)

Citizen Anti-Crime Initiatives? How the Gun Lobby Bankrolls the War on Crime

Recent years have seen a plethora of so called anti-crime initiatives placed on various state ballots, the most famous being the "Three Strikes You're Out" type laws. These initiatives purport to be efforts by state citizens who are fed up with crime and who are doing something about it. While this sounds good, it isn't true. These initiatives are no more populist, grass roots efforts than election campaigns by Phil Gramm and Newt Gingrich are supported by small citizen donors.

In 1993 the first "Three Strikes" initiative made it onto the ballot in Washington state. It was voted into law by 76% of the people who voted. Since then seventeen states have passed similar laws. Not to be outdone, California passed a three strikes law and a three strikes initiative. Supporters of these laws loudly proclaim that they are "the will of the people" and that "the electorate has spoken." But this ignores the fact that in American politics the first election that must be won, before a single vote is cast by the electorate, is the race for money. This is a story of three initiatives in Washington state: One failed and two didn't. The only ...

From the Editor

This issue marks PLN's sixth year of publishing and 72 consecutive issues. For anyone familiar with alternative publications in general and prison publications in particular this is a significant milestone. Ed Mead and I started PLN on a trial basis in 1990, we decided to print six issues and see if it generated any support. We believed that there was a need for progressive prisoners to have a publication which represented their interests and use it as a vehicle to try to impact the prison struggle and debate around criminal justice issues. Our first 8 issues were hand typed, photocopied and mailed by a sole volunteer in Seattle to the 75 people on our mailing list. We had a rocky start, our first volunteer got indignant over an article that appeared in our second issue, refused to print it and ran off with PLN's total treasury of fifty bucks and our master copy. Washington prison officials banned PLN in every prison in the state and Ed and I were subjected to the typical heavy handed repression they enjoy.

Despite that we persevered and continued. We found new volunteers to copy and mail PLN, we slowly gained more readers ...

State Murder Machine Picks Up

State Murder Machine Picks Up Speed

Fifty-six people were executed by sixteen states in 1995. That was the highest national figure since 1957. As usual, Texas led the nation with 19 executions in 1995. Since the supreme court reinstated the death penalty in 1976, there have been 313 executions in the U.S., 104 of them in Texas.

The 1995 total of 56 executions is a distinct increase from recent years. There were 23 in 1990, 14 in 1991, 31 in 1992, 38 in 1993, and 31 in 1994. The total for the first half of this decade, 193, already surpasses the 117 carried out in all of the 1980's. There were only three in the 70's, and 191 in the 60's.

Congress has moved to eliminate the $20 million in federal funds for all 21 death penalty legal-resource centers across the U.S. Opponents of the post-conviction centers say they needlessly delay justice.

"The centers have functioned like brakes," says Michael Rushford of the Criminal Justice Legal Foundation. "Congress is taking the brakes off."

The death penalty centers opened in 1988 in response to a rising death row population and an inadequate number of lawyers to ...

Texas Rent-A-Cells Burn

The February issue of PLN featured "Kidnapping and Extortion Texas Style." Several county jails in Texas are scrambling to pay off the "junk munis" (municipal bonds) they used in the late 1980's to build rent-a-jails. Their clientele of Texas state prisoners dried up after the state spent $2 billion to build new prisons. The counties stuck with the empty jails and facing payments on their bonds looked to Dominion Management, Inc. of Oklahoma, a private brokerage firm dealing in state-to-state prisoner transfers, to help them fill their empty cells. So far nearly 8,000 prisoners from 11 states have been exiled to shoddily built county jails in Texas.

One of those jails, the Crystal City Detention Center in Zavala County, discovered the hard way that kidnapping- for-hire can be a risky business. At 3:00 AM on Tuesday, February 21, about 200 frustrated and disgruntled out of state prisoners erupted, seizing control of the jail and setting fires. The uprising was not quelled until dawn. As of this writing no injuries were reported, and damages were being assessed.

The prisoners, mostly from Missouri and Utah, claimed they were angry because of a lack of black guards, the fact that ...

Texas Grooming Code May Violate RFRA

The court of appeals for the fifth circuit held that a district court erred in dismissing a Texas prisoner's claim that prison grooming regulations, requiring that prisoners be clean shaven and have short hair, violated his rights under the Religious Freedom Restoration Act (RFRA). The court upheld dismissal of these claims under the first amendment. Cleveland Hicks, a Rastafarian, filed suit challenging Texas DOC grooming regulations as violative of his religious rights. Rastafarians believe that it violates their beliefs to cut or comb their hair or beards, instead they must allow it to grow in dreadlocks. Hicks is confined in administrative segregation and in his suit stated that his segregated confinement mitigated any penological concerns prison officials may have in their grooming policy. The district court dismissed the complaint as being legally frivolous under 28 U.S.C. § 1915(d). Hicks appealed and the fifth circuit affirmed in part, reversed and remanded in part.

The court affirmed dismissal of the first amendment claim. "Equally clear in this circuit is the proposition that prison grooming regulations, including specifically the requirement that a prisoner cut his hair and beard, are rationally related to the achievement of valid penological goals, such as ...

Texas Prison Developer Arrested in Escape Plot

A private prison developer with business ties to a former Texas state prison director was arrested in January and charged with plotting to help a convicted murderer escape from prison for a $750,000 fee.

Patrick Harold Graham - using the alias Harold Robert also extended the offer to the convict's girlfriend. But the girlfriend went to authorities, who videotaped Graham, 45, as he allegedly accepted a $150,000 down payment in a restaurant parking lot. She handed Graham the money and told him she was making the payment with stolen funds. He was arrested after taking the money and was charged with money laundering and theft.

Graham is head of N-Group Securities, Inc., which played a key role in developing rent-a-cell jails for several job-starved Texas towns in the late 1980's. [See: Kidnapping and Extortion Texas Style, PLN, February '96]. Graham and others were defendants in civil lawsuits resulting in a $34 million federal judgment against them for civil conspiracy and violation of state and federal securities laws as part of a fraudulent scheme to finance six private prisons in small Texas municipalities. These same rent-a-cell jails, left holding millions in worthless junk municipal bonds, are now importing ...

VitaPro Fraud Scheme Unveiled in Texas

Texas state prison officials have asked a judge to nullify an agreement to purchase $33.6 million worth of VitaPro, a soy-based food product, saying the Texas Department of Criminal Justice (TDCJ) had no authority to sign such a contract. Under the deal between the TDCJ and VitaPro Foods, Inc., a Canadian company that makes the soy bean substitute meat and chicken, the TDCJ was to purchase 36 metric tons of the product each month for five years. Investigators for Gov. George W. Bush said the arrangement between VitaPro and the TDCJ involved "fancy footwork" and was clearly not above board.

The FBI, Texas Rangers and internal prison investigators are probing the pact, including the involvement of former TDCJ executive director James A. "Andy" Collins, who urged the agency to buy the powdery product and is now earning $1,000 each day he works as a VitaPro consultant.

Also under investigation is Larry Kyle, the director of prison industries who signed the purchase agreement with VitaPro under what he termed as a gentleman's agreement when the pact was signed last year [See: "TDCJ Selling Counterfeit Meat" in the July '95 issue of PLN]. Kyle was placed on administrative leave ...

Spain and Belgium Abolish the Death Penalty

As the U.S. increases the number of people it murders each year the trend in favor of state-sanctioned murder is ebbing elsewhere. Fifty-five countries around the world have abolished the death penalty for all crimes, fifteen others have abolished it for social crimes such as murder and thirty other countries are de facto abolitionist in that they do not carry out executions. On November 17, 1995, Spain announced it had abolished the death penalty in the Military Penal Code in a vote by the Spanish Senate. The death penalty for common crimes was abolished in Spain in 1978. The last executions carried out in Spain were revolutionaries killed in 1975 under the Franco dictatorship.

A week before, on November 10, 1995, the Belgian government approved a bill which would eliminate the death penalty for all crimes, in war as well as peacetime. The death penalty will be replaced by a life sentence and the life sentence by a jail sentence of 20 to 30 years. The last person executed in Belgium was shot by a firing squad in 1950 for war crimes. Belgium was the last West European country to retain the death penalty, which violates the European Human ...

Dismissal of Women's Suit Affirmed

The court of appeals for the eighth circuit affirmed the dismissal of a class action suit by women prisoners in Iowa. Past issues of PLN have reported Pargo v. Elliot, 49 F.3d 1355 (8th Cir. 1995), a class action suit in which women prisoners in Iowa claimed that they were subjected to gender discrimination by not being provided with similar resources as male prisoners in the state. After being remanded to the lower court the case was again dismissed.

The appeals court affirmed dismissal in a relatively brief per curiam ruling. The court affirmed the district court findings that the women prisoners were not similarly situated to male prisoners for equal protection purposes and that no invidious discrimination had occurred. See: Pargo v. Elliot, 69 F.3d 280 (8th Cir. 1995).

More Trouble in Texas Rent-A-Jails

by Bryon W. Ferguson

Hawaii prisoner Larry Earl Pagan decided he'd had enough of Texas hospitality. Pagan, shanghaied from a Hawaii state prison [See: "Kidnapping and Extortion Texas Style" in the Feb '96 PLN], escaped in February from the Newton County Correction Facility in Southeast Texas.

Pagan made a non-violent exit from the facility and then decided to do a little kidnapping of his own. He hijacked a local citizen and her automobile and made for the border. The driver and car were released unharmed in Mexico.

Two Oklahoma female prisoners made good their escape from another rent-a-jail in Odessa, Texas and three New Mexico prisoners were caught climbing down the exterior wall of yet another Texas county jail.

In addition to these and several other escapes by out-of-state "guests" of the Texas rent-a-jails, there have been a number of disturbances resulting in hundreds of thousands of dollars in damages to the Texas jails.

The Tarrant County (Ft. Worth, TX) Commissioners, proprietors of a county rent-a-jail, voted in February to terminate their rent-a-cell contract with New Mexico and return 90 prisoners to that state. Tarrant County officials expressed dismay over their perception that they had been "receiving New Mexico ...

Pennsylvania Prison Stormed

Last October, in the dead of night, Graterford Correctional Institution (GCI) prisoners were subjected without notice to an unprovoked assault by storm troops dressed in black, booted, many helmeted and all carrying clubs. [See: PLN, Dec '95]

All GCI prisoners, suddenly awakened, were strip-searched, hands cuffed behind their backs, some forced to their knees on the concrete floor, some beaten, some taunted, while cells were searched and most trashed. Some men watched their few personal possessions, family mementos and photos being thrown away; books, legal transcripts, records, papers and correspondence were tossed onto the tier to be swept into piles and junked.

The assault was such a brutal display of naked and gratuitous force that even many of the regular GCI guards were taken aback - so brutal that Commissioner [of Corrections] Horn found it necessary in the days following to address a letter to all GCI employees assuring them that he had not intended to frighten, harass, or intimidate them. To date he has sent no such assurances to GCI prisoners.

What was not told to the media or the public by the Commissioner was that the 650-man, upstate assault force, all white, descended upon GCI (which is 75 percent ...

A Doctor in Prison

I was dismayed by the article on page six of the November '95 PLN about the WA Doctor Scandal. I am a board certified family physician who is doing two five-year hits for third degree sexual assault of two female patients.

I hope when I am paroled in 2-3 years I will be able to practice medicine again. The safest way for me to practice would be in a structured environment and/or with male patients. I feel working with male patients in a prison could be a viable option, where I could benefit both the inmate population and myself. I surrendered my license because of sexual problems and not incompetence.

I think Dr. McGuire already was punished for violating the law and should be given a chance to prove himself. Doctors are not different from the rest of the population and that to rehabilitate them would be advantageous to the prison population, society and the doctor in question.

-- D.C., Wisconsin

USP Atlanta Locked Down

Prisoners at U.S.P. Atlanta are now on lockdown and are seeking assistance of counsel - pro bono - to represent their interests in litigation against the BOP and warden Willie Scott.

On Thursday, January 18, 1996, a guard working in the education department was stabbed during an altercation between himself and one prisoner. The guard was taken to Grady Memorial hospital, treated for minor injuries and released.

Warden Scott immediately placed the penitentiary on lockdown. He has subsequently indicated that the population will remain on lockdown for thirty days. This lockdown comes only 30 days after the last lockdown, which started in October when a number of federal joints rioted after Congress voted not to eliminate the 100/1 crack cocaine-powdered cocaine sentencing disparity.

This current lockdown, however, is not associated with any institutional "security" concerns. Warden Scott is fully cognizant of the fact that this incident was an individual act of violence. It was not gang related or a precursor to a riot. The individual [allegedly] responsible was immediately apprehended, placed in SHU and will be subject to both BOP and criminal prosecutions as punishment.

This lockdown has been implemented for the sole purpose of mass punishment. Prisoners at ...

Stunned in Pennsylvania

I am getting ready to file a tort claim lawsuit against the government for personal injury due to the reckless use of explosive bombs, AKA "Stun-Grenades" [against prisoners at FCI-McKean].

Does anyone know anything about these [stun-grenades] or can direct me to a case (other than the very recent 73 F.3d where stun-grenades were ruled "destructive devices" in a criminal case)? I've searched all BOP policy statements and can find nothing. I've [also] searched the federal reporters and the Prisoners' Self-Help Litigation Manual and have not found even one case where stun-grenades were used on prisoners.

How about the manufacture of these things? Does anyone know who makes them? I would like to see the instructions for their use and the Material Data Safety Sheets.

Reply to: Michael Crooker #03631-158, FCI-McKean, P.O. Box 8000, Bradford, PA 16701-0990.

Michigan Parole Law Unconstitutional

A federal district court in Michigan held that 1992 amendments to Michigan laws extending the time period between parole reviews violated the ex post facto clause of the US constitution. This case consists of a class action suit under 42 U.S.C. § 1983 filed by MI prisoners. The class consisted of three categories of prisoners, class I were convicted of crimes between 1982-92 and sentenced to mandatory life sentences, parolable life sentences or long, indeterminate sentences; class II were prisoners convicted between 1977-82 receiving parolable life or long, indeterminate sentences; class III were prisoners convicted between 1977-82 receiving mandatory life sentences and those convicted prior to 1977 receiving mandatory life, parolable life or long indeterminate sentences. In 1992 Mich.Comp.Laws § 791.234(6) and § 791.244(l) were amended.

Prior to the amendments prisoners in class I received parole board reviews after four years, and then every two years thereafter. The amendments did not affect the minimum time when prisoners could be seen by the parole board, it only affected the frequency of review before the parole board after the first hearing. Prisoners in class II should be seen by the parole board after seven years, then after ...

Prison Rape Opponents Sue to Protect Award-Winning Web Site from Internet Censors

Stop Prisoner Rape, Inc., a nationally organized group dedicated to fighting against the rape of incarcerated persons of all genders and ages, joined the American Civil Liberties Union and 19 other plaintiffs today (Feb. 7, 1996) in asking the courts to declare censorship of "indecent language" on the Internet unconstitutional.

"We are trying to protect our award-winning site on the World Wide Web," said Stephen Donaldson, president of the New York-based organization. "It is far and away our most effective way of warning people about the horrors of widespread sexual assault behind American bars," he said, 'and it has already won several awards for excellence."

The site, at http://www.igc.apc.org/spr/, was designated the best prison-related site on the Web, and one of the 30 best non-profit sites overall, by Impact Online, Donaldson explained. In addition, Internet By Point Survey designated the site as one of the "Top 5% of the Web" and The McKinley Group rated it as a "3-Star" site in Magellan, their Internet directory of over 1.5 million sites and 40,000 reviews.

The site gets about 5,000 electronic visits a week, according to Ellen Spertus, SPR's Webmaster and a doctoral ...

Sexual Assault During Search Illegal

The court of appeals for the eighth circuit held that a guard who sexually harasses and assaults a prisoner during a strip search violates the fourth amendment. The court rejected the guard's defense that he was not a "state actor" for § 1983 purposes because he was acting to satisfy his personal sexual desires without any investigatory or administrative purpose. William Seltzer Bey, a Missouri state prisoner, filed suit under § 1983 after prison guard Daniel Blair made comments about his penis and buttocks during daily strip searches. On several occasions Blair conducted searches in which he rubbed Seltzer Bey's buttocks with a nightstick and asked him if it reminded him of anything. He also claimed his placement in a strip cell for four days was unconstitutional and also violated his right to due process. The district court dismissed the complaint in its entirety. The appeals court reversed in part, affirmed in part and remanded.

The court held that Seltzer Bey had stated a claim with regards to the strip searches. The district court had relied on United States v. Attson, 900 F.2d 1427 (9th Cir. 1990) to hold that Seltzer Bey's fourth amendment claim must fail because ...

Arizona Death Row Chain Gang Problems

In December, 1995, Arizona's governor Fife Symington launched a program placing death row prisoners on a chain gang working in the prison's vegetable garden [Reported in the March '96 issue of PLN]. According to an Arizona newspaper report there have been two violent incidents involving death row prisoners on the chain gang. As is typical with corporate media, they reported only the version of the incident(s) given them by a prison spokesperson. Prison official Mike Arra recounted that on December 20, 1995, one prisoner was grazed in the cheek by a birdshot pellet fired to break up a quarrel.

Arra said the second incident occurred on January 10, 1996, when a fight broke out between prisoners Jake Hughes, 33, and Aryon Williams, 34. "A mounted corrections officer, who was armed with a shotgun ordered Hughes and Williams to stop fighting, but they ignored his repeated orders," Arra said. "The officer then fired a warning shot to get their attention. Williams raised his arms over his head, but Hughes took the opportunity to choke Williams with a handle of a hoe. The officer then shot Hughes below one knee, hitting him with more than 50 birdshot pellets. One ...

Dismissal of Suit for Not Attending Deposition Reversed

The court of appeals for the ninth circuit held that a prisoner appearing at a deposition hearing, but refusing to testify, was not a "failure to appear" within the meaning of Fed.R.Civ.P. 37(d). Robert Estrada, a California state prisoner, had filed suit against various prison officials for assault and destruction of his property. The attorney general assigned to the case scheduled a deposition. Estrada appeared at the deposition and refused to testify until the AG had given him a signed commitment that he would be given a copy of the deposition transcript. Estrada stated that the AG's office had refused to provide him with a deposition transcript in another case. The AG refused to do so and Estrada refused to testify.

The AG's office filed a motion to dismiss the case due to Estrada's refusal to testify at the deposition. The district court held Estrada's refusal to testify was frivolous, that Estrada was unlikely to cooperate in a new deposition and dismissed the case. The appeals court notes that it strictly construes the language of Rule 37(d). 'Estrada attended his deposition but refused to testify. This is not a 'failure to ...

Bad Apples in Florida DOC

Kenneth Smith, fired from four separate Florida prisons, exemplifies a problem the Florida DOC has: keeping "bad apples" out of the barrel. Smith was fired from prisons for repeatedly violating prison rules, drunken driving, and a criminal conviction for resisting arrest, yet always managed to get rehired at a different prison. At one prison, FCI in Lowell, Fl, Smith was accused of conducting an 18-month sex spree that included raping one prisoner - a charge he denies - and having sex with at least five others. Smith was fired from his last prison job on October 6, 1995.

A cursory investigation by the Florida legislature's House Corrections Committee and by the Florida Department of Law Enforcement (FDLE) have uncovered more than three dozen instances where guards who were fired for criminal misconduct or quit amid allegations of misconduct at the prisons where they were employed, have been rehired by two other prisons. One of the two prisons identified as the recipients of most of the "bad apples" is Glades Correctional Institution (GCI). PLN has written a number of articles over the years about corruption and mismanagement at GCI. The other of the two, Gadsden Correctional Institution, is a 900-bed female prison ...

Criminal Conviction Inadmissible Evidence

A federal district court in Pennsylvania ruled in favor of a prisoner's motion in limine to prevent prison officials from introducing evidence about his criminal history to impeach his testimony. This ruling will prove useful to any prisoner litigating a civil rights claim as all too often the attorney general seeks to impeach prisoner testimony with their criminal conviction. [Editor's Note: Some commentators have noted that the only time a criminal or prisoner's testimony is deemed to be credible is when they are testifying for the government.] Harvey Tabron is a Pennsylvania state prisoner who filed suit after he was attacked by another prisoner. He claimed prison officials were deliberately indifferent to his safety because they had knowledge of the attack before it occurred and did nothing to protect him. PLN has previously reported Tabron's efforts to secure appointment of counsel, [See: Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993), PLN, Vol. 5, No. 2; Tabron v. Grace, 871 F. Supp. 227 (MD PA 1994), PLN, Vol. 6, No. 7.] Tabron is now represented by counsel.

Tabron is serving a life sentence for murder and robbery; one of his witnesses is also a convicted ...

Jail Guards' Convictions Affirmed

On November 29, 1995, the US court of appeals for the sixth circuit issued a ruling affirming the federal conviction of three jail guards for violating prisoners' civil rights. Ulysses Tines, Glynn Bridgeforth and Belinda Marshall were guards employed at the Shelby County jail in Memphis, TN. Marshall was the lieutenant in charge and the other two were deputy jailers. On September 6, 1991, a fight broke out between several prisoners after a pair of tennis shoes was stolen. After the fight Marshall ordered a shakedown of the pod to search for the stolen tennis shoes. As jail guards gathered for the search Marshall instructed them to find the shoes and "whip the asses of the inmates who stole the shoes and send them to the med." Guards were given the option of leaving if they did not want to beat the prisoners or write up a report. Marshall distributed handcuffs, leg irons and stun guns, Tines distributed riot batons to the assembled guards.

The shoes were found in a ventilation shaft near three cells shared by six prisoners. The prisoners were ordered into a hallway where several guards, including all three defendants in this case, beat, stunned, kicked and ...

Attorney Fee Award Upheld in Jail Suit

The court of appeals for the ninth circuit has upheld an award of attorney fees to the plaintiffs in a jail religious discrimination suit who did not win in court but who caused jail policies to be changed. The court also held the plaintiffs were entitled to fees to defend ...

Complaint Need Not List Capacity Defendants Sued In

The court of appeals for the fourth circuit has held that plaintiffs suing under 42 U.S.C. § 1983 need not specifically plead in their complaint that the state officials are being sued in the individual rather than their official capacities. Instead, courts must look to the substance of the complaint, the relief sought, and the course of the proceedings to determine the nature of a plaintiff's claims. Robert Biggs, a North Carolina prisoner, sued prison officials and medical staff claiming they denied him medical treatment when he did not receive prescribed psychiatric drugs for a two week period. Biggs sought $10,000 in compensatory damages. The district court dismissed some of the defendants for a lack of personal involvement and dismissed the suit as to the remaining defendants under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, holding that the eleventh amendment prevented them being sued for money damages in their official capacity. Biggs' complaint was silent as to whether he was suing the defendants in their individual capacity (where the defendants can be sued for money damages) or in their official capacity (where they cannot be sued for money damages, only for ...

Jury Power in Action

A single mother in Cleveland, Ohio went on trial for welfare fraud. She was charged with "stealing" $11,000 in cash and food stamps over a two-year period. Between June 1988 to January 1990 she is accused of working at a $6,000-a-year part time job emptying bedpans and bathing residents in a nursing home - and failing to report this income to the welfare department. Reporting the job would have cost her nearly all of the welfare benefits, including Medicaid.

The trial ended in a hung jury when one juror, the chairman of the Ohio Communist Party, voted not to convict. Communist Rick Nagin said the defendant, Patricia Bell Taylor, is a decent, hard-working woman who took welfare money she was not eligible for because she needed to feed her three children. "You have to show criminal intent," said Nagin. "I was arguing her intent was to survive. I said, 'No way is this woman a criminal!' This is ridiculous!" But Michael Telep, an assistant Cuyahoga County prosecutor said stealing is stealing and Taylor must pay for her crime. He said the county intends to retry the case.

Hung juries are rare in welfare fraud cases, said Telep, blaming Nagin ...

Denial of Bed Linen States Claim

A federal district court in New York held that denying a prisoner blankets and bed linen while in segregation stated a claim for an eighth amendment violation. Keith Macguire, a New York state prisoner, filed suit claiming he was subjected to verbal abuse by prison officials and later placed in a cold cell without bed linen. He filed suit claiming his eighth amendment rights were violated.

The district court granted the defendants' motion for summary judgment on the verbal and physical abuse claims but denied it regarding the bed linen claim. "Plaintiff alleges that he was confined in a cold cell without bed linens. The court is not prepared to say as a matter of law that the Eighth Amendment permits such cell conditions. In Wilson, the Court stated that 'a low cell temperature at night combined with a failure to issue blankets' may deprive the prisoner of an identifiable human need -- warmth -- in violation of the Eighth Amendment. 501 US at 304, 111 S.Ct. at 2327. Moreover, in Corselli v. Coughlin, 842 F.2d 23, 27 (2nd Cir. 1988), the Second Circuit reaffirmed its prior holding in Wright v. McMann, 387 F.2d 519 (2nd Cir. 1967), that ...

Litigants Must Be Given Writing Materials

The court of appeals for the seventh circuit has held that prisoners must be provided with writing materials in order to ensure their right of court access. Such claims are not dependent upon a showing that the underlying claim would have succeeded, only that the prisoner was deprived of the ability to present his claim to the courts. Kenneth Gentry, an Indiana state prisoner, filed an appeal to his criminal conviction in state court. The court dismissed his petition because it did not conform to court rules, i.e. it was hand written not typed; not properly bound; its cover was white paper not blue and did not contain a verbatim statement of the judgment. The state court dismissed the petition for not complying with its procedural rules. Gentry then filed suit in federal court claiming that the prison warden deprived him of his right of access to the courts by denying him the materials necessary for him to conform his pleadings to state court rules. The district court granted summary judgment against Gentry, holding he had not shown he would have prevailed in his state petition but for the denial of the materials needed for it to conform to ...

Section 1983 Appropriate for Disciplinary Hearings

The court of appeals for the eighth circuit has held that prisoners can challenge prison disciplinary hearings under § 1983 without exhausting habeas corpus remedies. Billy Joe Armento-Bey, an Iowa state prisoner, filed suit in federal court under § 1983 claiming his due process rights were violated during a prison disciplinary hearing. The district court dismissed the suit without prejudice holding that Heck v. Humphrey, 114 S.Ct. 2364 (1994) does not allow prison disciplinary hearings to be challenged absent an allegation that the hearing had been overturned or reversed. The appeals court reversed and remanded holding the district court had abused its discretion in dismissing the complaint.

"Contrary to the district court's conclusion, the Heck court explicitly stated that Wolff claims do not 'call into question the lawfulness of the plaintiff's continuing confinement,' and again recognized that section 1983 claims 'for using the wrong procedures, [rather than) for reaching the wrong result (i.e. denying good time credits),' are cognizable.... Likewise, we note that such claims do not require exhaustion." See: Armento-Bey v. Harper, 68 F. 3d 215 (8th Cir. 1995) .

Other circuit courts to consider the application of Heck to prison disciplinary hearings have relied on its plain ...

Retaliation Claims Survive Sandin, but PI Reversed

The court of appeals for the ninth circuit has held that prisoner retaliation claims have survived the supreme court ruling in Sandin but that prisoners bear a heavy burden when seeking a preliminary injunction (PI) on a retaliation claim. In the December, 1994, issue of PLN we reported Pratt v. Rowland, 856 F. Supp. 565 (ND CA 1994) in which the district court granted a PI to California political prisoner Geronimo Pratt who had filed suit alleging prison officials were retaliating against him for appearing on television to promote his innocence. The main issue is whether Pratt was transferred to a different prison and housed in a double cell in retaliation for a television appearance in which he argued his innocence and that he had been framed by the FBI. He also claims that being housed in a two man cell is retaliatory and aggravates existing medical conditions relating to his Post Traumatic Stress Syndrome and war injuries. On appeal the court noted that Pratt no longer contests his transfer, i.e. that he be transferred back to the prison he was moved from, but primarily focuses on the double celling issue.

Preliminary injunctions are appropriate when the moving party ...

CDC Mental Health System Ruled Deficient

California's prison system (CDC) was cited by a federal judge for "gross inadequacies" in the delivery of mental health care services to prisoners. On September 13, 1995, U.S. district judge Lawrence Karlton put the bite on the CDC, issuing an 82 page court order with teeth in it. Unlike previous rulings which allow the CDC ample maneuvering room and time to appeal and delay implementing reforms, judge Karlton ordered the CDC to develop and implement the use of standardized screening forms and protocols, and implement improved medication protocols within a mere thirty days. Other remedial plans were to be implemented within 60 or 90 days. The remaining "serious constitutional deficiencies" are to be remedied without specified time limits, and are to be addressed by the parties after appointment of a special master by the court. The defendants requested a stay of the order pending appeal, which in a one sentence reply was flatly denied.

One of the attorneys representing prisoners in the suit, Warren George with the law firm of McCutchen, Doyle, Brown & Enersen, said the CDC has historically "used fighting litigation to the bitter end as an excuse to avoid implementation of necessary reforms." It is apparent in both the tone and substance of this ruling that the CDC's delay tactics have begun to wear the patience of the federal judiciary.

The case, docketed as Coleman v. Wilson, was certified in 1991 by the court as a class action with a class consisting of "all inmates with serious mental disorders who are now or who will be in the future confined within the California Department of Corrections..." except San Quentin and the California Medical Facility at Vacaville. The named defendants in the suit are Pete Wilson, Governor; Joseph Sandoval, Secretary of the Youth and Corrections Agency; James Gomez, Director of the CDC; Nadim Khoury, M.D., Assistant Deputy Director for Health ...

Summary Judgment Notice Must Be Given by Court

The court of appeals for the ninth circuit has reaffirmed that when a district court considers matters outside the pleadings in ruling on the sufficiency of a complaint it must give the plaintiff notice and allow the plaintiff an opportunity to respond. Webster Lucas, a California state prisoner, filed suit claiming prison officials were deliberately indifferent to his safety and serious medical needs when they maintained an unsafe prison drainage system and provided inadequate medical treatment to him after he fell into an uncovered drainage ditch. The suit was referred by the district court to a magistrate. Before ordering service on the defendants the magistrate ordered the defendants to investigate the matter and file a special report on the matter in Lucas's complaint [Editor's Note: As the defendants had not been served with the complaint it is not clear how the court gained subject matter jurisdiction over the defendants.] The magistrate issued a report holding that, based on the defendants' self serving report, Lucas received adequate medical care and the drainage ditches presented no threat to "sighted persons... provided only that they look where they are going."

Lucas filed objections to the magistrate's report claiming the magistrate ...

News in Brief

Greece: After a 12 day uprising at a 150-man maximum security prison in Corfu, 44 prisoners escaped by digging out of the prison on March 9, 1996. Sixteen were recaptured within a few hours of the escape. The uprising was part of a protest by Greek prisoners at five prisons protesting bad conditions and overcrowding.

England: The British prison system announced it would begin distributing condoms to prisoners to slow the spread of the HIV virus. Prison Medical Service Health Care Director Rosemary Wool determined "there may be a legal risk in not providing condoms." A doctor could be found in "breach of his/her duty of care if a prisoner-patient contracts HIV in prison," she said.

FL: Jail guard Bill Smith was fired from his job as a lieutenant at the Jacksonville city jail after being spotted off duty dressed as a woman in a French cut bikini and wearing make up. After a seven year legal battle Smith got his job back after the Florida Commission on Human Relations ruled that cross dressing wasn't a fair grounds for dismissal. Smith was also awarded $149,500 in back pay. When he returned to his job at the jail ...

 

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