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Prisoner Education Guide

Prison Legal News: June, 1996

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Volume 7, Number 6

In this issue:

  1. Japanese Justice: The Police Detention and Prison Systems (p 1)
  2. From the Editor (p 3)
  3. Report on Japanese Prisons Released (p 3)
  4. A Matter of Fact (p 4)
  5. Pro Se Tips and Tactics (p 5)
  6. No Due Process in Seg Placement (p 6)
  7. Maryland Lifers Denied Parole (p 7)
  8. No Stay in DC Women Prisoners' Suit (p 7)
  9. Mississippi Unable to Pay the Piper (p 8)
  10. Ninth Circuit Expands Mailbox Rule (p 8)
  11. Okay for Guards to View Naked Prisoners (p 9)
  12. Florida Prisoners Type Political Donor Lists (p 9)
  13. No Free Lunch (p 10)
  14. Indiana Prisoners Not Entitled to Disciplinary Due Process (p 10)
  15. State Seizes County Jail (p 11)
  16. Washington Supreme Court Upholds Discriminatory Earned Time Policy (p 11)
  17. America's Most Wanted Hypocrite (p 12)
  18. Military Prison Locked Down (p 12)
  19. Illinois DOC Violates Court Access Rights (p 13)
  20. Phone Graft in Florida (p 13)
  21. $176,000 Awarded in Attorney Fees (p 14)
  22. Washington Prisoners Protest Money Seizure Law (p 14)
  23. California EFV Ban Enjoined (p 15)
  24. Ninth Circuit Revisits Attorney Fees (p 15)
  25. Supervisor Liable in Retaliation Suit (p 16)
  26. Nevada Utilities Commission Caps Prison Phone Rates (p 16)
  27. $5 Million Awarded in New York Prison Stabbing (p 17)
  28. Washington Prison Doctor Has License Suspended, Again (p 17)
  29. Chemical Toilets May Violate Eighth Amendment in Massachusetts Class Action (p 18)
  30. Michigan Visiting TRO Denied (p 19)
  31. Indian Journalist/Ex-Prisoner Denied Travel (p 19)
  32. IFP Status Not Available for Trivial Suits (p 20)
  33. Washington Prisoners Have No Right to Earned Time (p 20)
  34. Tenth Anniversary of Peru Prison Massacres (p 21)
  35. News in Brief (p 27)

Japanese Justice: The Police Detention and Prison Systems

by Gary P. Leupp

Japanese justice officials boast of their extraordinarily high rate of conviction (99.94% in 1994). They imply that this rate results from efficient police work and careful judicial proceedings. When a high profile case (such as that involving the Aum Shinrikyo doomsday cult, or the U.S. Marines in Okinawa convicted of kidnapping and raping a 12 year old girl) draws U.S. media attention to the Japanese justice system, the coverage is generally positive, even admiring. The Japanese case (like that of Singapore) provides a convenient foil for the U.S. system, which critics deploy as they argue for further erosion of defendants' and prisoners' rights in this country.

The Japan Federation of Bar Associations (JFBA) conveys a rather different picture of Japanese justice. What follows draws primarily on JFBA literature in exposing a system which convicts virtually all it indicts, and then denies them basic human rights behind bars.



Police Custody

Japan's police custody system (daiyo kangoku), as described in the Japanese Code of Criminal Procedure, requires that criminal suspects must be brought before a judge within three days after arrest. If the judge decides that the suspect should be detained pending trial ...

From the Editor

I welcome you to the 74th consecutive monthly issue of PLN. When we first published in 1990, the state of Washington attempted to deny delivery of PLN to every prisoner in the state. PLN made it clear that we'd challenge the ban in court, however, and senior DOC officials backed off. The years have blurred my memory, but I think I remember them saying something like, "Let them print their little newsletter. It'll never last. They'll fold within a year or two."

Ironically, the DOC official who spearheaded the early opposition to PLN, moved on to become a warden in another state. We were shocked and amazed when he started subscribing in 1993. And he has renewed every year since. Yet, he is just one of many unlikely subscribers to PLN. Among them are the Attorneys General of over a dozen states, a dozen or so state DOC heads, and wardens. At first we were puzzled by their willingness to subscribe, but one day it dawned on me why they do.

Prison is often viewed as the struggle between "Us and Them." Paul and I like to read Corrections Today, Corrections Compendium, and other trade magazines, in ...

Report on Japanese Prisons Released

Human Rights Watch Asia has recently released a booklet titled Prison Conditions in Japan. The 93 page booklet gives a detailed overview of the Japanese prison system. Organized by topic the booklet includes a summary with chapters covering police detention, physical conditions, communication between prisoners and the outside world, punishment, death row, treatment of foreign prisoners and immigration detention and more. The booklet is an excellent complement to Mr. Leupp's article in this issue of PLN.

Many in the U.S. have upheld the Japanese prison system as a model to emulate, all too frequently this enthusiasm is based on ignorance of actual prison conditions in that country. This is summed up by the Japanese government's response to those who criticize the draconian nature of the prison system stating: "these arguments are quite groundless. If they were true, riots and disturbances would have occurred frequently." Human Rights Watch notes: "A careful look at the Japanese prison system strongly suggests that the lack of serious prison disturbances may be related to the draconian discipline and the fear among prisoners and not necessarily the general contentment of the Japanese prison population. Order is achieved at a very high cost: the ...

A Matter of Fact

Welcome to this new feature of PLN. Often we run across amazing facts, figures, quotes, or statistics, but don't have the time, energy, or space to develop a full-length article. So, in the same vein as "News in Brief," this column will be consist solely of bite-sized morsels of information. If you like it (or hate it) write and let us know.

The state prison system in Pennsylvania has 2,000 "lifers." There is no parole for lifers in PA, so a lifer is six times as likely to die in prison than to be released.

Between 1930-75 the U.S. imprisonment rate remained between 100-120 per 100,000/population (1930: 129,453 1975: 240,593). In 1993 it was 519 per 100,000. That same year Russia had 558 prisoners per 100,000; South Africa (while still under apartheid) had 368; Poland, 160; Canada, 116; Mexico, 97; England and Wales, 93; France, 84; Germany, 80; and Japan, 36.
A black teenager is one-fifth as likely to die from drug abuse as a white middle-aged adult, but is ten times more likely to be arrested for drugs and over twenty times as likely to be imprisoned.

Average state spending ...

Pro Se Tips and Tactics

This column discusses the defense of so-called "qualified immunity" that is available to public officers and employees sued under 42 U.S.C. Section 1983. I will first discuss what an "immunity" is, then what "qualified" immunity is as distinguished from "absolute" immunity, and finally how the issue of qualified immunity is determined in a Section 1983 case.

1. Immunities In General

The word "immunity", as it is used in Section 1983 cases, refers to an "immunity from suit." A defendant who has an immunity cannot be sued for damages; he or she is entitled to be free from the trouble and possible expense of a lawsuit for damages because the courts have found that there are values more important than the plaintiff getting compensation.

A good example of an immunity that courts always apply is so-called "judicial immunity." A judge cannot be sued for damages for decisions made while acting as a judge. See, for example, Stump v. Sparkman, 435 U.S. 349 (1978). Courts consistently find that it is important for judges to make their decisions free from the threat of paying damages whenever someone thinks a wrong decision has been made, and so judges cannot be sued ...

No Due Process in Seg Placement

In the August, 1995, issue of PLN we reported Sandin v. Conner, 115 S.Ct. 2293 (1995) in which the supreme court held that prisoners have no due process rights in disciplinary hearings as long as the length of their sentence is not affected, i.e. no good time is lost. We commented that under the new standard prison officials could place prisoners in segregation for no reason at all. A federal district court in Illinois, applying Sandin, has held just that.

Keith Leslie, an Illinois state prisoner filed suit after he was placed in segregation for no reason. The defendants moved for dismissal after Sandin was decided claiming they could have placed Leslie in segregation for any reason or no reason at all. The court gave an extensive discussion of Sandin and how it applies to prisoners' disciplinary due process claims.

"This court, like the four dissenting justices, sees Sandin as having taken a near quantum-leap from the earlier cases on which it grounds itself. In this action the consequences of taking Sandin at its word (as this court is obliged to do) is to arm prison authorities, who have heretofore possessed uncircumscribed powers over the inmates within their ...

Maryland Lifers Denied Parole

In 1993, the Maryland DOC instituted a policy which denied all lifers a security status below medium. Those lifers who were then in minimum security facilities, pre-release, and work release were checked in and transferred to maximum and medium security prisons. This was done in reaction to the sensationalist journalism concerning a lifer on work release who had murdered his girlfriend. One bad apple.

In September, 1995, during a speech televised from in front of a state prison in Jessup, MD, Governor Parris Glendening announced that he would henceforth deny the parole application of all Maryland prisoners serving life sentences. In Maryland, the Parole Commission can release prisoners serving limited sentences, but any parole of a lifer must be approved by the governor.

Since 1980, Maryland governors have approved 90 such paroles, an average of six a year. In the weeks prior to the speech, the Parole Commission recommended that Glendening parole eight lifers. They ranged in age from 42 to 60, and each had spent from 18 to 27 years in prison. Glendening said he rejected all eight recommendations and told the parole board to stop sending such cases to his desk.

Glendening, described by the Washington Post as ...

No Stay in DC Women Prisoners' Suit

In the December, 1995, issue of PLN we reported Women Prisoners of D.C. DOC v. District of Columbia, 877 F. Supp. 634 (DC DC 1995), a class action suit by women prisoners challenging their conditions of confinement and an atmosphere of sexual assault and harassment. The district court ruled in the prisoners' favor on all issues.

After that ruling the defendants filed a motion to stay the judgment granting injunctive relief and to modify the ruling. The district court has denied the motion to stay and granted the motion to modify only by holding that female prisoners cannot visit with their children or receive child placement counseling.

The court gave an extensive discussion of the standards to be used when granting a motion to stay a judgment and held that the defendants had not met their burden, namely that they were likely to prevail on appeal or that they would be irreparably injured in the absence of a stay.

The court rejected the defendants' claims that it should not have granted injunctive relief for the violations of the District of Columbia code concerning gynecological care and that the court should not have exercised its supplemental jurisdiction in hearing claims ...

Mississippi Unable to Pay the Piper

Last year Mississippi implemented the country's toughest sentencing bill, requiring all convicts (not just 'serious" or violent" criminals) to serve 85 percent of their sentences. Corrections Commissioner Steve Puckett said that law is causing a serious financial dilemma and needs to be reviewed.

Under the previous sentencing scheme prisoners were eligible for parole after serving only 30 percent of their sentences. Puckett told the House Appropriations Committee he has so many prisoners coming into the system "I don't know where to keep them.'' He said that even an aggressive prison building plan still couldn't keep up with the expanding prison population. Puckett estimated that the number of prisoners in Mississippi will increase 152 percent, from 12,294 to 30,031 by the year 2005.

Rep. Billy McCoy (D) said by the time lawmakers get done paying for prisons "we're not going to have one blasted dime left." He also expressed the dilemma facing lawmakers when he quipped that "it's not politically correct to list the three or four things necessary" to draft a saner sentencing scheme.

"As soon as the legislature becomes aware of the expenses involved," said House Appropriations Committee Chairman Charlie Capps (D ...

Ninth Circuit Expands Mailbox Rule

The court of appeals for the ninth circuit has held that a prisoner's notice of appeal is timely filed as long as it is mailed within the applicable time limit; the court does not require the notice to be mailed by a method that creates a written log. The topic of when pleadings, appeal notices and similar documents are timely filed has been a topic of some concern to the federal courts. In Houston v. Lack, 487 US 266, 108 S.Ct. 2379 (1988) the supreme court held that pro se prisoners' notices of appeal are deemed filed when they deliver them to prison officials for mailing, not when the notice is actually received by the court clerk.

This case involves Mark Koch, an Arizona state prisoner, who filed a notice of appeal after a jury ruled against him on a suit involving rectal probe searches. The notice was due July 30, 1990, but was not received by the district court until August 8, 1990. The 30 day time limit is mandatory and establishes the appeals court's jurisdiction to hear a case, thus an untimely appeal notice deprives the appeals court of the ability to hear a case ...

Okay for Guards to View Naked Prisoners

The court of appeals for the seventh circuit held that it is constitutionally permissible for female guards to routinely view naked male prisoners. Albert Johnson, a pretrial detainee in the Cook County (Chicago) jail, filed suit claiming that female guards monitoring male prisoners while they showered, dressed, used the bathroom and were nude violated his due process rights. The district court dismissed the suit for failing to state a claim upon which relief could be granted.

The court of appeals affirmed dismissal. In Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994) [PLN, Vol. 5, No. 7] the court held that prisoners' right to privacy limits the ability of prison officials to subject men to body searches by women guards and vice versa. Observation is a form of search subject to the reasonableness requirements of the fourth amendment.

The court held that under Hudson v. Palmer, 468 US 517, 104 S.Ct. 3194 (1984) prisoners have no right to privacy. 'After Wolfish and Hudson monitoring of naked prisoners is not only permissible ... but also sometimes mandatory. Inter-prisoner violence is endemic, so constant vigilance without regard to the state of the prisoners' dress is essential. Vigilance over showers, vigilance over ...

Florida Prisoners Type Political Donor Lists

Florida state elections officials are hiring prisoners to type into a computer the names of big-money political donors. Secretary of State Sandra Mortham's office is under orders to make the contributions information available on the internet. Mortham said her office will save tax dollars by paying prisoners 15 to 50 cents an hour to enter the campaign finance reports into a computer. "This is a terrific deal for the people of Florida," proclaimed David Rancourt, the elections division director.

Not everyone agrees with that assessment, however. "It's a nutty idea," said Edward Hennessy of Palm Beach, who contributed $1,000 to Jeb Bush in 1994. "There are too many robberies in Palm Beach now, so why identify these [rich] people?" Mortham claims the prisoners will be supervised so they won't be able to take notes or records to their dorm. And as Rancourt points out, the campaign finance records are public record, so prisoners can already get the information if they want it.

Source: Palm Beach Post

No Free Lunch

Most readers are aware of the growing practice of charging prisoners and jail detainees a fee for medical services. Two southern jurisdictions have introduced what may be the next wave - charging for meals.

Sheriff Bobby Knowles of the St. Lucie County Jail in Fort Pierce, Fla. announced that he will begin charging jail prisoners $1.20 a day for their rations, whether they eat them or not. The money will be deducted from commissary accounts, money deposited by friends or family, or from cash the prisoner was carrying when they were arrested. Trustees will get free meals. Those who don't have money on their accounts will also be fed, but the jail will run up a "tab" for them. If money is sent in to their account, or if they are rearrested at a later date and arrive with money in their pockets, some or all of it may be deducted to pay off their meal tab.

The Fairfield, Alabama, City Council has voted to start charging detainees for room and board in its city jail. The charge can be up to $20 a day. "We think jail should be a punishment, not a reward system," said Mayor Larry ...

Indiana Prisoners Not Entitled to Disciplinary Due Process

In two separate rulings a federal district court in Indiana held that a prison disciplinary hearing committee does not have to provide any form of due process when it sentences a prisoner to long terms of disciplinary segregation. Lorenzo Stone-Bey, an Indiana state prisoner and long-time PLN reader, was infracted for allegedly threatening another prisoner over an alleged drug debt. An informant reported the threat and after investigation Stone-Bey was infracted. The alleged victim gave a statement to prison officials but later recanted. At the disciplinary hearing Stone-Bey was found guilty despite being denied an opportunity to take a polygraph test and an absence of any evidence attesting to the informant's reliability. He was sentenced to one year in segregation.

Indiana is rather novel in that it provides for no judicial review whatsoever of prison disciplinary hearings. The result is that Indiana prisoners must file habeas petitions directly in federal court. The drawback is that federal courts can only correct violations of the federal constitution, even the most flagrant violations of state law or state code provisions for disciplinary hearings have no remedy for Indiana prisoners. Stone-Bey filed suit under 42 U.S.C. § 1983 claiming his due process ...

State Seizes County Jail

On January 19, 1996, nearly 200 New Jersey state corrections officers, dressed in full riot gear, descended on the Hudson County Jail and seized control of the facility. The jail's warden was removed, the facility was locked down, and every cell was searched for contraband. Harold Beyer, assistant state commissioner of corrections, said the reason for the raid was contraband and the county's inability to fully secure the facility. Approximately 900 of the jail's 2,200 prisoners are convicted state felons being held on behalf of the state.

The state has been involved in a series of legal disputes with Hudson County over payments made by the state to reimburse the county for housing state prisoners. Governor Christie Whitman said those disputes were totally unrelated to the Jan. 19 action, and that Hudson County would reimburse the state for its costs in the jail lockdown. PLN thinks the seizure may have been intended as a dramatic reminder, however, that the state has more "hired guns" than the county. Nothing like a display of force to settle a financial dispute, eh?

Source: Corrections Digest

Washington Supreme Court Upholds Discriminatory Earned Time Policy

The Washington state supreme court has upheld a practice by county jails awarding lesser amounts of earned time to pretrial detainees, usually too poor to afford bail, who are later convicted. Pursuant to RCW 9.94A.150(l) the DOC, which holds convicted felons, and county jails, which hold misdemeanants and pretrial detainees who are usually too poor to afford bail, have developed separate systems of good time leading to an earlier release. DOC prisoners are presumed to earn all allowable good time unless the prison specifically deducts it for misconduct. See: In Re Cromeenes, 72 Wa. App. 353, 864 P.2d 423 (1993). Earned time is also available for work and education participation. See: In Re Williams, 121 Wash.2d 655, 853 P.2d 444 (1993). Prisoners unable to pay bail who are later convicted and transferred to the DOC then have their sentence reduced on a day per day credit and earned time credit earned while in presentencing detention.

In Re Mota, 114 Wash.2d 465, 788 P.2d 538 (1990) held that the DOC's denial of earned early release credit to presentence detainees in county jails violated their right to equal protection. As a result the ...

America's Most Wanted Hypocrite

John Walsh is known to millions of television viewers as the host of America's Most Wanted on FOX TV. The program features lurid reenactments of crimes and ask for viewer assistance in locating people that police claim have committed the crime in question. Over the years political fugitives such as Betty Dukes (a leftist radical accused of bombing the Senate to protest the US invasion of Grenada), former Black Panthers and others have been targeted by the program. Walsh bristles with righteous indignation against the suspects fingered by police as he seeks to turn America into a nation of police stool pigeons.

Often featured on his program are prisoners who have escaped from prison or jail. On several occasions these prisoners have been recaptured even though they had led law abiding lives, built families and otherwise redeemed themselves. But Walsh is quick to point out that none of this matters, the important thing is what the person did in the past, even if it was decades ago and that punishment is paramount.

Walsh became a national figure in 1981 when his six year old son Adam was abducted from a Sears department store in a Hollywood, Florida shopping mall ...

Military Prison Locked Down

On March 2, 1996, Pfc. Thomas Enochs, a prison guard, told a prisoner at the U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas not to wear a T-shirt on his head. The unidentified prisoner then assaulted Enochs, who set off a body alarm to summon other guards. Enochs was taken hostage and prisoners seized the unit, Number 3 wing. Other guards who arrived to rescue Enochs were beaten by prisoners and ran away.

After a negotiating team failed to gain Enochs' release more than 140 Military Police stormed the wing at 5 a.m. using fire hoses and pepper spray to free the guard and quell the uprising. The MP's freed Enochs and locked prisoners back in their cells in a matter of 40 minutes. Four guards and three prisoners were reported to have suffered minor injuries during the uprising. Enochs remained hospitalized in satisfactory condition.

The prison was locked down for at least three days following the uprising and portions remained on indefinite lockdown. The U.S. Disciplinary Barracks houses military prisoners from all four armed forces that are serving long terms. PLN has reported past uprisings at the prison resulting from bad conditions and harsh treatment.

Source ...

Illinois DOC Violates Court Access Rights

A federal district court in Illinois held that the Illinois DOC violates the rights of segregated prisoners by requiring them to rely on a "runner system" in order to do legal research and litigate their claims. In a lengthy post trial ruling examining court access practices at five maximum security prisoners in the IL DOC the court held that the practice of denying segregation prisoners direct access to prison law libraries or assistance from persons trained in law violated their right of access to the courts.

This class action suit was originally filed in 1985 and finally came to trial. The court sets forth extensive findings of fact regarding the specifics of law library access at each prison. It noted that 72% of all IL prisoners had not graduated from high school, with 29% reading at below a sixth grade level. The court held that the average segregation prisoner was unable to make use of a typical court ruling and would have difficulty making meaningful use of the Prisoner's Self Help Litigation Manual without assistance. While prisoner law clerks were available in some cases, they received little or no training and were not required to have any legal knowledge ...

Phone Graft in Florida

Competing telephone companies submitted bids to provide "inmate phone services" to 35 Florida prisons. The contract was awarded to North American Intelecom (NAI) Inc. over rival MCI Telecommunications. MCI filed a protest based on the fact that they scored higher than NAI in the Department of Corrections' bid ranking system. MCI's protest prompted an investigation of the matter by governor Lawton Chiles.

On February 19, an investigator from the governor's office urged that two DOC officials be disciplined for destroying public documents related to the telephone contract bidding process. DOC Secretary Harry Singletary said he was reviewing the investigator's report and that unspecified "disciplinary actions will be taken" against Assistant Secretary Ron Kronenberger and chief of the DOC's bureau of general services, Jim Morris.

The report said that Kronenberger and Morris ordered underlings to destroy internal memos which had recommended awarding the contract to MCI. According to the report, Kronenberger and Morris claimed to have awarded the contract to NAI because it would have given more money back to the state (kick-back) from the toll calls. The report also stated, however, that the state share of the profits was already factored into the bid rankings and ...

$176,000 Awarded in Attorney Fees

A federal district court in Illinois entered an award of $163,276 in attorney fees and $12,398 in costs pursuant to 42 U.S.C. § 1988 to prisoner plaintiffs who won $130,000 in damages at a jury trial after being beaten by prison guards. The court discussed the ...

Washington Prisoners Protest Money Seizure Law

In the May, 1995, issue of PLN we ran the article Harsher Prison Measures Opposed: "Family Values'' Stop Here which reported the solidarity demonstration held by some 20 people in front of the King County (Seattle), WA jail on March 20, 1995. That same day prisoners at the Washington State Penitentiary (WSP) in Walla Walla and women prisoners at the Washington Corrections Center for Women had staged a one day work strike to protest the campaign of hatred being unleashed by demagogues in the state legislature which aimed to strip Washington prisoners of both rights and privileges. The bulk of the anti prisoner legislation was passed in House Bill 2010 (see August, 1995, PLN for a detailed rundown) and enacted as "emergency legislation" on June 15, 1996, the day governor Mike Lowry signed it.

The June, 1995, issue of PLN carried ran the article WA Prisoners Protest HB 2010 which detailed the work stoppage at WSP. The main concern of the prisoners was the loss of the Extended Family Visiting Program for close custody prisoners. We noted at the time that the Western Washington corporate media had ignored the protests, both at the jail and in the prisons. [The Walla ...

California EFV Ban Enjoined

Past issues of PLN have reported on legislative efforts to eliminate or restrict prisoners access to Extended Family Visits in California. A series of state court rulings have been issued [See PLN, Feb., Apr., Sep, 1995, for more details] on this topic. Unable to completely eliminate the EFV program, in 1994, the California legislature attached a rider to the state budget which stated that the DOC could not use any appropriated funds to pay for unsupervised visits by prisoners convicted of certain sex offenses. The DOC interpreted this to mean that sex offenders would not be allowed to receive EFVs at all. Dexter Homan, a sex offender who had been participating in the EFV program, had his visits terminated due to this budget provision. Homan filed a petition for a writ of mandate in state court to prevent enforcement of the budget rider on the ground that it violated the California state constitution's Article 4, section 9, which forbids statutes to have more than one subject. The trial court agreed with Homan and the state appeals court affirmed.

The court discussed the history of the constitutional provision, which was to prevent legislation from being passed by stealth or deceit ...

Ninth Circuit Revisits Attorney Fees

The court of appeals for the ninth circuit has again held that attorney fee awards under 42 U.S.C. § 1988 should be awarded by district courts based on the relief achieved by the prevailing party. Institutional reform litigation by its nature is a long, involved process, litigation concerning the appropriate award of attorney fees when the prisoner plaintiffs prevail has become an entire sub-category of class action suits.

This case involves a class action suit by Nevada County, CA jail prisoners concerning overcrowding and inhumane conditions at the county jail. The district court granted a preliminary injunction which alleviated many of the complained of conditions. In the meantime the county built a new, bigger jail that resolved many of the problems. The plaintiffs' attorneys then sought attorney fees and the district court awarded fees for only 207 hours of the 277 ($80,434) sought.

The appeals court discussed at length the standard of appellate review for attorney fee awards and the criteria that district courts must apply in awarding § 1988 fees. Once again the appeals court emphasized the importance of district courts giving a concise explanation of why they awarded or declined to award attorney fees. In this case ...

Supervisor Liable in Retaliation Suit

A federal district court in New York held that supervisory prison officials can be found liable when they are aware of retaliation taken against prisoners but do nothing to stop it. The court dismissed claims challenging the New York DOCS practice of discontinuing free general mail postage and prohibiting prisoners from receiving postage stamps, and several instances where legal mail was opened outside the prisoner's presence or delayed. Milton Musa Pacheco, a New York state prisoner and longtime PLN supporter, filed suit after being placed in medical quarantine for refusing to take a tuberculosis test involving injection of TB bacteria. Pacheco is a Muslim and contends that the injections violate his religious beliefs. He repeatedly requested a less intrusive test, such as a chest x-ray, and was denied. When Pacheco filed grievances and complaints the prison warden threatened him and refused him all legal access and placed him in segregation as a medical quarantine. Pacheco repeatedly complained to DOCS commissioner Thomas Coughlin, who took no action to assist Pacheco.

Pacheco filed suit claiming that he was held in medical quarantine as a pretext to retaliate against him for refusing to violate his religious beliefs and for complaining about the ...

Nevada Utilities Commission Caps Prison Phone Rates

In the July, 1995, issue of PLN we reported that the Nevada Public Service Commission (PSC) was considering putting an end to the extortionate phone rates paid by people who accepted collect calls from Nevada state prisoners. On September 12, 1995, the PSC announced that the rates charged for prison collect calls would be capped at the highest rate charged by any long distance carrier operating in the state.

The PSC's action was prompted by widespread complaints received by prisoners' family members, many of whom could ill afford the excessive phone bills. Examples cited by the commission were a Las Vegas woman who spoke to her son in a rural Nevada jail for 30 minutes and was charged $85. A Winnemucca jail prisoner called a friend in Eureka, spoke for five minutes and the person called was billed $16, four times the typical rate charged by other long distance companies.

In June, 1995, the Nevada DOC signed a contract with Sprint Communications to exclusively handle collect calls by prisoners. Sprint promptly increased the rate to three to five times higher than what local phone companies had been charging. Rick Hackman, of the PSC's Consumer Division, said "This has ...

$5 Million Awarded in New York Prison Stabbing

In December, 1995, a jury in the New York state court of claims awarded former prisoner Anthony Barrett $5,180,645 in damages for pain and suffering, lost income and expenses. In 1987 Barrett was left paralyzed after being stabbed in the back by a prisoner at the Auburn Correctional ...

Washington Prison Doctor Has License Suspended, Again

In October, 1994, the Washington State Medial Quality Assurance Commission began an investigation into the qualifications of Dr. Thomas McDonnell, the supervising physician at the Washington Corrections Center (WCC) in Shelton, WA. The investigation began after the Commission received two anonymous complaints. On April 8, 1996, the commission suspended McDonnell's medical license, finding he had exposed prisoners and employees at WCC to "an unreasonable risk of harm" due to poor quality of care, misdiagnosis or failure to supervise care. "The commission determined that an immediate suspension was necessary to prevent the likelihood of harming patients," commission officials said.

In suspending his license, the commission cited the cases of seven prisoners where McDonnell acted, or failed to act, in a way that caused the prisoners to be hospitalized. One patient was given such large quantities of drugs by McDonnell after a dental procedure that he stopped breathing twice. He was resuscitated and transferred to an Olympia hospital.

In another case a prisoner reported to the infirmary with symptoms of blurred vision, increased urination, thirst, weakness and headaches. A physician assistant (PA) examined the prisoner and noted symptoms for diabetes even though the prisoner was taking medication for high blood pressure ...

Chemical Toilets May Violate Eighth Amendment in Massachusetts Class Action

A federal district court in Massachusetts has set for trial a class action suit by state prisoners claiming that chemical toilets pose a health hazard that violates the eighth amendment's ban on cruel and unusual punishment. Also to be decided at trial is whether exposing the prisoners to asbestos contamination, to fire hazards, vermin and contaminated drinking water violates the eighth amendment.

Prisoners at the Southeast Correctional Center (SECC) in Bridgewater, MA filed a class action suit contending that unsanitary toilet facilities, fire hazards, contaminated drinking water and exposed asbestos at the prison violated their eighth amendment rights. In this ruling the district court granted in part their motion for summary judgment and set the remaining claims for trial. As we near the end of the 20th century it is incredible to find that conditions such as these exist in prisons within an industrial country. SECC was built between the mid 1880's and 1910 and has remained in continuous use since then.

Toilets: Prisoners at SECC are housed in cells without running water or toilets. During the ten hours they are locked in their cells at night the only toilet facilities they are provided with are chemical 'Pack ...

Michigan Visiting TRO Denied

A federal district court in Michigan denied state prisoners a Preliminary Injunction (PI) in their challenge to new visiting rules. The Michigan DOC recently enacted more restrictive rules on visitation that prohibit visits by all minors other than prisoners' own children; it prohibits visits with children if parental rights have been terminated for any reason; only ten visitors who are not "immediate family" are allowed and "immediate family" does not include uncles, aunts, nieces, nephews, cousins, etc.; members of the public can visit only one prisoner and all visits can be denied if they receive two infractions involving substance abuse. A group of women prisoners filed suit claiming the rules, scheduled to go into effect on October 2, 1995, violated their first, fourth and eighth amendment rights. They sought a PI, which the court denied.

The court held the prisoners had not shown they were likely to succeed on the merits. It began its analysis by noting prisoners have no right to visit anyone, not even family members. The court gave a fairly extensive discussion to each of the prisoners' claims on each point of the new rules that were being challenged and soundly rejected all challenges.

The court held ...

Indian Journalist/Ex-Prisoner Denied Travel

M.N. Ravunni is the secretary of the Central Propaganda Committee of the Communist Party of Kerala in India. He is also the chief editor of the magazine Munnanipo-rali. In July, 1995, Mr. Ravunni applied for a passport to visit other countries, including the U.S. and discuss the political situation in India and elsewhere. Despite repeated requests the Indian government claimed it needed more time to "collect information" about him. In fact, they were using delaying tactics to disrupt his travel plans and prepare a dossier on his activities as a revolutionary journalist.

Ravunni filed suit claiming that the denial of his passport application constituted a violation of Article 21 of the Indian constitution which guarantees the right of free travel to all Indian citizens. The High Court of Kerala (an Indian state) rejected the passport issuing authorities' explanation and sought a detailed reply from the government. The government could not tell the court why it would not issue Ravunni a passport beyond claiming he is on the All India and State Security lists. These so-called "security lists" are a remnant of British colonial rule and are prepared according to the current whim of the Indian government.

Ravunni spent ...

IFP Status Not Available for Trivial Suits

The court of appeals for the third circuit has expanded the ability of district courts to dismiss suits filed in forma pauperis by indigents. This case epitomizes the maxim that bad cases make bad case law. Melvin Deutsch is a federal prisoner who filed suit under the Federal Tort Claims Act claiming that guards took $4.20 in ink pens from him. Deutsch filed suit as an indigent under 28 U.S.C. § 1915(d), the in forma pauperis statute, which allows litigants to file suit in federal courts without paying the filing fee and related costs. The district court dismissed the suit on grounds that it was trivial. The appeals court affirmed.

Until now courts have only been allowed to dismiss suits under the IFP statute if they were legally or factually frivolous or filed for a malicious purpose. The appeals court gave a lengthy discussion to the legislative history of the IFP statute, the numerous court rulings interpreting it. The court held that the term "frivolous" can be used to encompass claims such as this that "are of little or no weight, value, or importance, not worthy of serious consideration or trivial." Such suits can be dismissed by ...

Washington Prisoners Have No Right to Earned Time

The state court of appeals for Division III has held that Washington state prisoners have no constitutional or statutory right to be allowed to earn "earned time" credits. Dagoberto Galvez was placed in administrative segregation where he was not allowed to earn "earned time" credits to reduce his sentence. Galvez filed a Personal Restraint Petition (PRP) in the state court of appeals seeking restoration of the credits he would have otherwise earned. The appeals court denied the PRP.

The court noted that prisoners have no constitutional right to remain in the general population of a prison and no due process rights if they are transferred to ad seg. Washington DOC Policy 350.130 states that prisoners are not eligible to earn earned time credits if they are placed in ad seg for more than 20 days in one month unless that placement is for protective custody reasons. The issue to be decided by the court was whether Washington prisoners have a constitutionally protected liberty interest in earning early release time credits.

While prisoners have no inherent federal constitutional right to amassing good time credits or earning early release, such a liberty interest can be created by state law. RCW 72 ...

Tenth Anniversary of Peru Prison Massacres

[The following article is excerpted from the book Gloria al Día de Heroísmo, which is an account of the uprising and massacre of Peruvian political prisoners and Prisoners of War on June 19, 1986. This year marks the tenth anniversary of the uprising.]

The historical background of the uprising is that since 1980 the Communist Party of Peru (PCP, also known as the "Shining Path") has led a people's war to seize state power and establish a socialist republic. The ensuing civil war has resulted in widespread government repression in Peru. Several thousand Peruvians have been imprisoned as real or accused members of the PCP. Since the early 1980's PCP POWs showed themselves to be highly organized and disciplined. They were also subjected to torture, horrendous conditions of confinement and other abuses. As a result of struggle in the early 1980's they reached an agreement with the Peruvian government whereby they would be recognized as political prisoners and have relatively humane conditions of confinement. In 1985 Alan Garcia was elected president of Peru, partly on the strength of his promise to crush the PCP. One of his first steps in this regard was to announce that he ...

News in Brief

PA: On April 6, 1996, four prisoners in the Adams county prison used tools and a weighted sock to attack two guards and escape from the minimum security prison. Police said the escapees may have been picked up by an accomplice in a car. The prisoners took off their jump suits and fled in their underwear.

WA: On April 10, 1996, Alvin Jordan committed suicide at the Washington State Penitentiary by slashing his wrists and bleeding to death. Jordan was serving a 31 year sentence for stabbing his girlfriend to death. He was discovered dead in the prison hospital 30 minutes after a guard claimed to have last checked on him.

WV: Sgt. Gary Lambert and Steve Rickman, jail guards at the Cabell County jail, were fired after a March 24, 1996, incident in which they staged a mock hanging of black prisoner Kenneth Ziegler. Police accused the two guards of placing a hangman's noose around Ziegler's neck, tying it to a pole and handcuffing his hands behind his back. The guards said they were "just joking" and that the hanging was not racially motivated.

OH: On April 1, 1996, Robert Willison escaped from his cell in the ...

 

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