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Prison Legal News: July, 1996

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Volume 7, Number 7

In this issue:

  1. Prison Litigation Reform Act Passed (p 1)
  2. Zimmer Amendment Passed (p 5)
  3. From the Editor (p 5)
  4. A Matter of Fact (p 6)
  5. Visiting in Prison (Video) (p 6)
  6. Double Justice: A Documentary Film About Race and the Death Penalty (p 6)
  7. New Jersey Jail Guards Indicted in Beating Death (p 6)
  8. Alabama Prison Chief Fired over Women in Chains (p 7)
  9. Prisoner Accounts Add Up to Millions (p 7)
  10. Prison: An Entitlement System? (p 7)
  11. Segregation Enhancement May Violate Due Process (p 8)
  12. Haircut Rule May Violate Equal Protection (p 8)
  13. No Immunity for Washington Religious Name Retaliation (p 9)
  14. $1.44 Million for Medical Indifference (p 9)
  15. Newell Superseded (p 10)
  16. Warden Liable for Prison Rape (p 10)
  17. New Jersey Governor Vetoes Frivolous Bill (p 11)
  18. Minnesota Prisoners Strike for Minimum Wage (p 11)
  19. Private Prison Executive Sentenced in Fraud Scheme (p 12)
  20. New York Work Release Creates Liberty Interest (p 12)
  21. No Right to Wages Under Interstate Compact (p 12)
  22. Arizona Held in Contempt over Masters' Fees (p 13)
  23. New York Prisoners Entitled to Disciplinary Due Process (p 13)
  24. Alaska Prisoner Has Right to Call Witnesses at Hearing (p 14)
  25. Washington Legislation Passed (p 14)
  26. Retaliatory Transfer and Discipline Unconstitutional (p 15)
  27. Attorney Fees Awarded in Death Row Brutality Case (p 15)
  28. Mysterious New Syndrome Discovered (p 16)
  29. Jail Detainee's Court Access Right Violated (p 16)
  30. Failure to Protect States Claim (p 17)
  31. Furniture Manufacturers Threatened by UNICOR (p 17)
  32. Massachusetts Phone Injunction Affirmed (p 18)
  33. Legal Services Funding Cut (p 19)
  34. Khalfani Trial Due to Begin (p 19)
  35. Gang War Assault States Claim (p 20)
  36. Bivens Provides Remedy for Work Injury to BOP Prisoners (p 20)
  37. Muslim Can't Be Punished for Refusal to Handle Pork (p 21)
  38. Cavity Search in Public States Claim (p 21)
  39. News in Brief (p 22)
  40. U.S. Supreme Court to Review Cases (p 23)

Prison Litigation Reform Act Passed

On April 27, 1996, president Clinton signed the Prison Litigation Reform Act (PLRA) into law attached as a rider to the budget for the Justice Department. The PLRA is the culmination of a lengthy campaign waged by prisoncrats and the National Association of the Attorney Generals (NAAG) to restrict prisoners' right of access to the federal courts and to limit the ability of courts to remedy constitutional violations when they are found [See January, 1996, PLN 'Texas Anti-Litigation Law" by Dan Pens]. A significant part of this campaign has been each state's attorney general posturing before the media with a "Top Ten List of Frivolous Lawsuits" allegedly filed by prisoners. That these lists were often disingenuous, misleading or inaccurate made no difference as no one in the corporate media bothered checking the cases being cited. When they were checked, the reality was often different [See April, 1996, PLN, 'Not All Prisoner Lawsuits are Frivolous" by Judge Jon Newman].

The increase in prisoner litigation has largely corresponded with the explosion of the prison population, however, the per capita number of suits by prisoners has actually declined in the last 20 years. [See April, 1996, PLN, 'Damn Lies and Statistics."] Faced ...

Zimmer Amendment Passed

When president Bill Clinton signed the budget for the Department of Justice it included a rider inserted by Congressman Dick Zimmer (R-NJ). In its entirety it states: "None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the federal prison system: (1) in-cell television viewing except for prisoners who are segregated from the general prison population for their own safety; (2) the viewing of R, X and NC-17 rated movies, through whatever medium presented; (3) any instruction (live or through broadcast) or training equipment for boxing, wrestling, judo, karate, or other martial art, or any body building or weightlifting equipment of any sort; (4) possession of in-cell coffee pots, hot plates, or heating elements; or (5) the use or possession of any electric or electronic musical instrument."

While the budget was not signed into law until late April, the BOP didn't wait for its marching orders and duly implemented the amendment well before then. Also, although the amendment only bars the use of federally appropriated funds to purchase these items, the BOP is using it as an excuse to halt the purchase of videos or films paid for ...

From the Editor

In recent issues Dan and I have mentioned that we were seeking funding to pay a staff person until PLN was able to cover a staff salary on its own. So far we haven't had much luck at getting any grants in the amount needed. We are going to continue that effort. In the meantime, beginning September 1, 1996, we will be raising our subscription prices to $15 a year for prisoners; $20 a year for non-prisoners and $50 for institutions and professionals. The last time we raised our individual rates was in 1992. Since then we have doubled in size and gone to offset printing. Our goal has always been to remain accessible to poor people, especially prisoners. As long as we remained staffed by unpaid volunteers that wasn't much of a problem, but we have grown to the point where we need to increase PLN's revenue to cover a staff salary. Our goal has always been to remain self-sufficient so that we can maintain our editorial independence.

The rate increase will accompany other changes, the biggest one will be that we will change our address from Florida to Seattle. This will allow our staff person ...

A Matter of Fact

The Texas Department of Criminal Justice (TDCJ) has a $2.5 billion annual budget and 40,000 employees. It is the largest state agency in Texas.

From January 1977 to October 1995, 302 prisoners were executed in the U.S. In that same time period, 95 death-sentenced prisoners either died of natural causes or were killed on death row while appealing their cases. An additional 43 committed suicide.

Former Pennsylvania Corrections Commissioner Joseph D. Lehman told USA Today: "We are not using prisons as a solution for everything... It does not work... My state had a 171% growth in the prison population in the 1980's... You cannot explain that by our 6% growth in the crime rate."

It took five decades, 1930-1980 for the combined state and federal prison population to double. Between 1980 and 1994 the prison population tripled.

Between 1832 and 1984 (152 years) California built 12 prisons. From 1984 to 1996 (12 years) the state built 20 prisons.

The California Department of Corrections "Planning and Construction" division had a staff of two in 1983. In 1994 that staff had grown to 216 with an annual budget of $17 million.

Nationally, the number of prisoners with the ...

Visiting in Prison (Video)

Double Justice: a Documentary Film About Race and the Death Penalty

This is a 19 minute video tape produced by the ACLU's Capital Punishment Project. The film places the legal imposition of the death penalty in the US in the historical context of American slavery and its legacy. The video spotlights the slave codes, which explicitly mandated different punishments for black and white people, and reviews research gathered in the 1980's that documents the use of the death penalty almost exclusively to punish those whose victims are white. The video's focus is to argue for the abolishment of the death penalty in pursuit of racial equality. The film's main shortcoming is it does not explore the class issue of the death penalty, namely that only poor people, regardless of race, are the people who get executed. Aside from that the film is very well produced and a useful educational tool. It costs only $20, postage paid. Order from: ACLU Dept. L, PO Box 794, Medford, NY 11763.

Visiting in Prison

This is 20 minute video produced by Prisoner Visitation and Support, a national interfaith visitation program. Filmed in five federal prisons (Danbury, CT; Leavenworth, KS; Lompoc ...

Double Justice: A Documentary Film About Race and the Death Penalty

Double Justice: a Documentary Film About Race and the Death Penalty

This is a 19 minute video tape produced by the ACLU's Capital Punishment Project. The film places the legal imposition of the death penalty in the US in the historical context of American slavery and its legacy. The video spotlights the slave codes, which explicitly mandated different punishments for black and white people, and reviews research gathered in the 1980's that documents the use of the death penalty almost exclusively to punish those whose victims are white. The video's focus is to argue for the abolishment of the death penalty in pursuit of racial equality. The film's main shortcoming is it does not explore the class issue of the death penalty, namely that only poor people, regardless of race, are the people who get executed. Aside from that the film is very well produced and a useful educational tool. It costs only $20, postage paid. Order from: ACLU Dept. L, PO Box 794, Medford, NY 11763.

New Jersey Jail Guards Indicted in Beating Death

Analdo Ortega was being held in the Hudson County, N.J., Jail in March of 1989 awaiting trial on burglary charges. According to court testimony, Ortega asked for a blanket and that triggered the anger of some of his captors. Shortly thereafter he was beaten to death.

Four jail guards were indicted on charges of federal civil rights violations. They had originally faced state charges, but those were dismissed.

William Fink, 35, a former sergeant, pleaded guilty March 4 to a single charge, committing a civil rights violation that resulted in death. He could be sentenced to as much as life imprisonment.

Thomas Murphy, 36, admitted that he failed to report the beating. He could get up to three years in prison.

Raymond Murray, 58, who was deputy warden in charge of the night shift when the beating occurred, and David Dumers, 42, a guard, both face trial.

Another guard, Richard Maroldi, pleaded guilty in 1992 to state charges of falsifying reports about the beating.

The three-count federal indictment charges Murray with conspiracy, cruel and unusual punishment by law officers, and depriving Ortega of the right to be kept from harm while in custody. Dumers will be tried only on ...

Alabama Prison Chief Fired over Women in Chains

Alabama's prison commissioner, Ron Jones, was abruptly fired on April 26th after announcing plans to put female prisoners on chain gangs. Jones had ordered the warden at Julia Tutwiler State Prison for Women to develop the chain-gang policy. He said the plan was in reaction to male prisoners who had filed lawsuits challenging (among other things) that Alabama's chain gangs were exclusively applied to male prisoners. "There's no real defense for not doing the females," said Jones.

Alabama's governor, Fob James, apparently thought there was no real defense for putting the women in chains and announced Jones' resignation the following day. "There will be no women on any chain gang in the state of Alabama today, tomorrow or any other time under my watch," the governor said.

The governor first learned of the plan by reading about it in the morning papers. James, who had taken a hands-off policy on the prison chief's "get tough on prisoner" initiatives, decided it was time for Jones to step down. He announced that Jones would return to his old job of warden at the Elmore Correctional Facility near Montgomery.

As of this writing it is uncertain who is ...

Prisoner Accounts Add Up to Millions

The U.S. prison population has tripled in the last fifteen years and now stands at well over a million. But the number of bodies is not the only statistic that has grown. According to the Newhouse News Service, 1995 saw record sums of money move through prisoner accounts: In California, $64 million; in Florida, $50 million; in Ohio, $33 million.

Most of the money is spent on staples such as cigarettes, coffee, snacks, and toiletries. But even after these deductions, according to calculations by Newhouse, prisoner accounts added up to a staggering $100 million balance.

Collectively prisoners are big business. Communications giant AT&T Corp, for instance, estimates that prisoners placed about $1 billion in long-distance calls last year.

States are scrambling to upgrade or streamline their prisoner accounting systems. In Texas, for instance, prisoners use debit cards, similar to ATM cards, to make purchases at the commissary. These purchases are automatically deducted from their accounts by an electronic system that links the state's 100-plus prisons.

New York has a more antiquated accounting system. The state closes an account and opens another for each prisoner at a local bank every time the prisoner is transferred from one prison ...

Prison: An Entitlement System?

According to a recent computer analysis, Alabama's prison population has tripled since 1980, but the state's crime rate has remained the same. A Birmingham News analysis of Corrections Department statistics and census records show that nearly one of every 167 Alabamans older than 14 are in a state prison. Alabama's imprisonment rate is the eighth highest in the nation, said Penn State University criminologist Darrell Steffensmeier, a national expert on sentencing. "You guys love to lock people up in the South," Steffensmeier said.

Alabama Corrections Commissioner Ron Jones, who gained worldwide attention for reinstating chain gangs, has a different take on the situation. "Twenty years ago, you'd be hard-pressed to find an inmate in our prison system who would have been back a third time. Today a tenth time is common," he said. "What happened? We created a classic entitlement parasite for whom prisons is just one more entitlement system. You get free education, you get free meals, you get free this and free that."

Perhaps the Alabama legislature should be blamed for making it too easy, especially for urban poor, to gain access to the state prison entitlement system. Alabama has a two-year mandatory minimum ...

Segregation Enhancement May Violate Due Process

A federal district court in New York held that extending a prisoner's term in segregation without a hearing may violate his right to due process because it imposed an atypical hardship because this particular prisoner was almost seven feet tall and had difficulty being comfortable in segregation. In the August, 1995, PLN we reported Sandin v. Conner, 115 S.Ct. 2293 (1995) where the court significantly revamped the law regarding prisoners' right to due process in connection to liberty interests, disciplinary hearings and segregation. At the time we noted that Sandin was poorly written and far removed from the realities of prison and would lead to substantial confusion as the lower courts grappled to apply it.

In 1990 Shawn Delaney, a New York state prisoner, was sanctioned to 365 days in segregation at a disciplinary hearing. At the time of the hearing Delaney was already in segregation and had 197 days left to serve. The hearing officer ruled that Delaney should serve both sanctions concurrently. Later, during an administrative review, DOCS officials ordered that Delaney serve his segregation sentences consecutively, in effect lengthening his segregation sentence by 197 days without any form of a hearing. Delaney filed suit claiming ...

Haircut Rule May Violate Equal Protection

A federal district court in Hawaii held that a prison rule requiring that prisoners have short hair and remain clean shaven may violate the constitution's guarantee to equal protection of law and the Religious Freedom Restoration Act (RFRA). Edmund Abordo, a Hawaii state prisoner, filed suit claiming that the Hawaii DOC's practice of not granting any religious exceptions to rules requiring prisoners be clean shaven and have short hair. Both parties moved for summary judgment which the court denied in part, granted in part.

The court held that Abordo had stated a claim under the RFRA because he explained that long hair was a central tenet to Native American religions. Thus, a jury could find in his favor on this claim. The court dismissed Abordo's claim that the haircut rule violated due process because under Sandin v. Conner, 115 S.Ct. 2300 (1995) state created liberty interests will be few and far between.

The court denied the defendants summary judgment on the equal protection claim because they did not specifically contest the claim and pointed to no evidence that would support a ruling in their favor. The court held that the claim was not frivolous and this ...

No Immunity for Washington Religious Name Retaliation

The court of appeals for the ninth circuit held that prisoners have a clearly established right to use legally adopted religious names and prison officials were not entitled to qualified immunity for violating that right. The court also held such prisoners did not have a clearly established right to notary services when using both legal names. Dawud Malik, a Washington state prisoner and long time PLN supporter, adopted that name in a legal action filed in state court when he became a Muslim in 1978. In 1990 Malik was a prisoner at the Clallam Bay Correction Center (CBCC). He sought to mail out legal and personal mail using both his religious name and his slave name. Prison officials refused to send out his mail and punished Malik for attempting to use his religious name. Malik sought to have a state habeas petition notarized in order to file. He used both his names and the notary refused to notarize the petition and confiscated it.

This is the third published ninth circuit ruling on this case. In Malik v. Brown, 16 F.3d 330 (9th Cir. 1994) [PLN, Aug. 1994] the appeals court reversed the lower court's dismissal of the case ...

$1.44 Million for Medical Indifference

On April 5, 1996, a Denver, Colorado district court jury awarded former prisoner Arthur Nieto $1.44 million in damages against Colorado state prison officials for showing deliberate indifference to his serious medical needs. According to the evidence proved at trial, Nieto was imprisoned at the Delta Correctional Facility in ...

Newell Superseded

In the April, 1996, issue of PLN we reported Newell v. Sauser, 64 F.3d 1416 (9th Cir. 1995) which held that Alaska prison officials were not entitled to qualified immunity for infracting a prisoner who had another prisoner's legal papers in his cell. On March 11, 1996, the court issued a new ruling in the case that supersedes the previous ruling. The result did not change in that the court still held the prison officials were not entitled to qualified immunity for their actions. However, the court changed the focus of its decision. In the earlier ruling the court focused on Newell's right to dispense legal assistance to other prisoners. In this ruling it focuses on his due process right to advance notice of what conduct could subject him to disciplinary action. Readers should not cite the earlier ruling in their pleadings. See: Newell v. Sauser, 79 F.3d 115 (9th Cir. 1996).

Warden Liable for Prison Rape

The court of appeals for the sixth circuit held that supervisory prison officials can held liable under the eighth amendment when they ignore the risk of sexual assault to vulnerable prisoners that are later raped. Timothy Taylor is a Michigan state prisoner who is 5 feet tall, weighs 120 pounds, has an IQ of 66 and a seizure disorder; he is also very youthful looking. His pre-sentence recommendation contained information advising prison officials to carefully read his medical file. Taylor was assigned to a minimum security prison in Jackson where he was housed in a single cell. Later, due to overcrowding, Taylor was transferred to a dormitory prison where he was raped by another prisoner. Taylor filed suit claiming that prison officials were deliberately indifferent to his right to personal safety in that they transferred him to a prison knowing he would be at high risk of being raped.

This case has gone up and down the courts several times, and still hasn't gone to trial. See: Taylor v. Foltz, 803 F. Supp. 1261 (ED MI 1992). The case was eventually dismissed by the district court, reversed and remanded by the appeals court, and again dismissed by the district ...

New Jersey Governor Vetoes Frivolous Bill

In the January '96 issue of PLN we featured "TX Anti-Litigation Law," about a law passed in Texas purportedly to stem "frivolous" litigation by prisoners. Also in that article was information about how this type of law was crafted by the National Association of Attorneys General and has been promoted through a national PR campaign. As a result, similar bills have been passed or are being considered by a number of states. Florida, for example, passed such a law in January by unanimous votes in both houses of the state legislature.

A "frivolous lawsuit" bill was also passed by the New Jersey legislature in January. New Jersey governor Christie Whitman announced that she would not sign the bill, however, and so it was "vetoed" by default seven days after it was submitted for her signature.

The bill allowed for prisoners who filed lawsuits later determined to be frivolous to lose good time credits as punishment. A spokesperson for the governor said that such a provision may be unconstitutionally punitive. The loss of good time credits would have the practical effect of extending a prison sentence.

"All frivolous lawsuits unnecessarily clog the courts and unfairly burden the person having to defend ...

Minnesota Prisoners Strike for Minimum Wage

[The March 21 issue of Workers World reported that "a struggle exposing super-exploitation of prison labor has broken out at the Oak Park Heights Correctional Facility in Minnesota." The following account is excerpted from that article. Readers may note that Minnesota prisoners have lost litigation seeking the minimum wage. See: McMaster v. Minnesota, 30 F.3d 976 (8th cir. 1994).]

Over 150 prisoner employees of Minncor, the state's prison industry program, have been on strike since March 4. Their principle demand is to be paid the minimum wage. Almost all prisoners in two 52-person units participated in the work stoppage, as did about a dozen other prisoners who attend educational programs. The authorities responded by locking down the two units. They then ordered a general shakedown, searching every prisoner in his cell, looking for contraband.

A third 52-person unit had already been locked down over the weekend when authorities began to suspect there might be a job action. Prison authorities suspended all visits and are holding the strikers incommunicado. According to prison spokesperson Rick Hillengass, the prisoners remained on lockdown as of March 11.

Among the products the prisoners make are three-ring binders and file folders which are then ...

Private Prison Executive Sentenced in Fraud Scheme

In 1993 Clifford Todd, 68, was chairman of Kentucky based U.S. Corrections Corporation, a private prison firm. In March of this year he was sentenced by a federal judge to a 15-month prison term.

Todd pleaded guilty to mail fraud last year for his part in a bribery and extortion scheme. Also convicted in the scheme was Richard Frey, former Jefferson County corrections chief. Frey was convicted in November of extorting $198,000 in bribes from Todd, in exchange for the corporation getting and keeping a lucrative county jail contract.

In addition to the 15-month prison sentence, Todd was fined $40,000, and in an ironic twist, U.S. District Judge John Heyburn ordered Todd to pay for the cost of his incarceration.

According to a 1995 report by the University of Florida, U.S. Corrections Corp. operates four private facilities, all in Kentucky, with a total population of 2,198 prisoners. They are the third largest private prison corporation, with a 6.42% market share. In comparison, the two largest prison corporations (Corrections Corporation of America and Wackenhut Corrections Corp.) control 30.48% and 25.82% of the U.S. market share in private prison beds.

It is ...

New York Work Release Creates Liberty Interest

A federal district court in New York held that prisoners retain a due process liberty interest in remaining in work release. Quentin Hollingsworth, a New York state prisoner, was participating in a work release and home furlough program while nearing the end of his sentence. He held a job earning some $11 an hour. While on a furlough his estranged wife threatened him and he obtained a restraining order against her. After a dispute with his wife Hollingsworth called police for assistance and despite the restraining order he was arrested and jailed. He promptly notified his parole officer and the work release facility of his arrest. Six weeks later all charges against him were dismissed. Instead of being transferred back to the work release facility he was taken to prison and effectively removed from work release status with no form of hearing or due process.

Hollingsworth repeatedly requested a hearing to contest his removal from work release. He was ignored by prison officials. He filed an order to show cause in state court and was finally granted a hearing after the court ordered it. At the hearing he was charged with absconding even though DOCS regulations stated work release prisoners ...

No Right to Wages Under Interstate Compact

No Right to Wages under Interstate Compact

The court of appeals for the eighth circuit held that neither the Interstate Corrections Compact nor Missouri state law required that Missouri prisoners held out of state be paid for their labor. Kenneth Jennings was a prison guard at the Missouri State Penitentiary when he was convicted of second degree murder in 1983 and sentenced to thirty years. Jennings was transferred, at his request, to the Arkansas prison system to serve his sentence in 1984.

Arkansas requires that all able bodied prisoners work but does not pay its prison workers, instead they receive good time credits reducing their period of incarceration. Missouri prisoners are paid for their labor under Mo.Rev.Stat. § 217.255. Under the terms of the Interstate Corrections Compact prisoners supposedly retain the same rights when confined out of state as when confined in state. Jennings filed suit under 42 U.S.C. § 1983 because he had neither been paid nor received good time credits. The district court dismissed the suit holding that the term "rights" in the Corrections Compact does not encompass prison wages.

The appeals court affirmed the dismissal. The court held that prisoners have no right to ...

Arizona Held in Contempt over Masters' Fees

In the October, 1995, issue of PLN we reported the ongoing war between the Arizona DOC (ADOC) and the federal judiciary as prison officials sought to evade compliance with federal court orders. Because the Arizona DOC has not been willing to comply with court orders in the past, the court appointed several monitors to ensure compliance. These monitors' fees were paid by the DOC pursuant to 42 U.S.C. § 1988. The Arizona legislature, at the behest of ADOC director Sam Lewis and governor Fife Symington, passed Ariz. Rev.Stat.Ann. § 35-152 which forbade payment of state funds to the special monitors. We won't repeat the factual and political background that led to the legislation as we have already covered it.

One of the prisoners' attorneys noted that the ADOC was "just making this stuff up as they go." PLN correctly predicted that the ADOC would be held in contempt and the statute struck down under the supremacy clause of the US constitution. Judge David Ezra has done just that.

In its ruling the court gives an extensive history of the underlying litigation that led to the appointment of the special masters. The court agreed with the plaintiffs that ...

New York Prisoners Entitled to Disciplinary Due Process

A federal district court in New York held that New York state prisoners retain a state created due process liberty interest to be free from disciplinary segregation. This is the one of the first post Sandin v. Conner, 115 S.Ct. 2300 (1995) cases involving New York prison regulations. Raymond Lee was infracted for allegedly stabbing another prisoner. He requested an employee assistant to prepare for the disciplinary hearing but received none. At the disciplinary hearing he was found guilty of the infraction and sentenced to two years in segregation and loss of privileges. A state court ruled in Lee's favor on an Article 78 petition he filed, the court found that Lee was denied due process of law during the hearing and ordered his release from segregation and expungement of the infraction.

Lee filed suit in federal court seeking money damages for the due process violations that resulted in his being found guilty at the hearing and spending 376 days in segregation. The key issue to be decided was whether or not Lee was entitled to due process at the disciplinary hearing. Under Sandin prisoners can only sue if they are subjected to an "atypical and significant hardship ...

Alaska Prisoner Has Right to Call Witnesses at Hearing

The Alaska supreme court held that refusing to allow a prisoner to call witnesses and to question the accusing staff member at a prison disciplinary hearing violated the prisoner's due process rights. Mattfi Abruska is an Alaska state prisoner. He was infracted for alleged indecent exposure after a prison guard claimed Abruska had deliberately exposed his genitals to her during night time security checks. Abruska filed suit in superior court claiming his due process rights were violated after the hearing officer postponed the hearing for 30 days; refused to call two witnesses who would have testified that the same guard had falsely accused them of indecent exposure and refusing to call the infracting guard to be questioned; Abruska also claimed the staff advocate had refused to assist him in preparing his appeal. The superior court dismissed the petition and the Alaska supreme court reversed and remanded.

The court held that Abruska's due process rights were not violated by the postponement of the hearing or the lack of assistance by the staff advocate. The court noted that Alaska prisoners have a right, subject to limitations, to present exculpatory evidence on their behalf at prison disciplinary hearings. The court held ...

Washington Legislation Passed

The Washington legislature was in session for a mercifully short 60 day session between January and March, 1996. In that period several hundred anti-prisoner and anti-defendant bills were introduced, at a cost of $1,500 each. While several passed the legislature about half of those passed were vetoed by governor Mike Lowry. The following bills were signed into law:

HB 2195: This law modifies RCW 9.73.095 and allows for the electronic monitoring of all telephonic and non-telephonic conversations in prison living units, cells, rooms, dormitories and common spaces where prisoners may be present. The law requires the DOC to notify visitors, staff and prisoners of this law in writing. The law doesn't effect any real change as the WA DOC has electronically recorded conversations in visiting rooms, cells, common areas, etc., for years. This bill was introduced at the DOC's request.

HB 2320: This is also known as the "Two Strikes Rape Bill." It modifies the 3 strikes law, RCW 9.94A.030, by requiring only a second conviction for any defendant convicted a second time of the following offenses: first and second degree rape; indecent liberties by forcible compulsion; and any of the following offenses ...

Retaliatory Transfer and Discipline Unconstitutional

The court of appeals for the eighth circuit affirmed an award of damages and attorney fees to an Iowa prisoner who was infracted and transferred after he cooperated with an investigation into guard misconduct. Robert Cornell was contacted in 1987 by DOC internal affairs staff conducting an investigation into whether ...

Attorney Fees Awarded in Death Row Brutality Case

A federal district court in South Carolina awarded a prisoner's attorney $29,516.50 in attorney fees and $1,856.17 in costs pursuant to 42 U.S.C. § 1988. Cecil Lucas is a death row prisoner in South Carolina. After becoming drunk and combative with prison guards he ...

Mysterious New Syndrome Discovered

by Dan Pens

The Santa Clara County (Calif.) Board of Supervisors decided to commission a report. They assembled a team of independent corrections specialists to study every aspect of the county jail's operation. The County Supervisors wanted to find out why jail detainees seemed to mysteriously die after "tussling" with guards.

The experts conducted their investigation and released a ground-breaking report. The most startling conclusion highlighted in the report is that jail detainees and arrested suspects who "inexplicably die" while in police custody may be victims of "Sudden In-Custody Death Syndrome." [We are not making this up!]

The report not only identified the syndrome, but urged that jail guards and medical staff be trained to recognize the "risk factors" of the syndrome. According to the report, prisoners at risk include 'those who have just engaged in a violent struggle, sometimes while resisting arrest; who do not respond to pepper spray or pain - compliance holds; have been handcuffed while lying in a prone position, especially face down; who are drunk or drugged, over 50 years old or overweight; and those who exhibit a period of silence."

"We are increasingly concerned about this issue," said John Hagar, an attorney who specializes ...

Jail Detainee's Court Access Right Violated

A federal district court in Pennsylvania held that pretrial detainees retain a right of access to the courts. Charles Turiano, a PLN subscriber, filed suit under 42 U.S.C. § 1983 claiming his right of access to the courts was violated when he was held in the Huntingdon County, PA jail. Turiano was represented by counsel in the criminal proceedings leading to his conviction. The jail contained a small library that had very few copies of the federal reporter and supplements, only two volumes of the supreme court reporter and no federal statutes or reference materials. The jail had a paging system where prisoners could request copies of cases from the county law library. The jail employed no person trained in the law to provide assistance to prisoners wishing to initiate a civil action. Nor did the jail have any contract legal services. Both parties filed motions for partial summary judgment on the court access claim, which the court granted in part and denied in part.

The court cites numerous cases from several circuits and the supreme court discussing prisoners' right of access to the courts. Bounds v. Smith, 430 US 817, 97 S.Ct. 1491 (1977) was the leading ...

Failure to Protect States Claim

The court of appeals for the fifth circuit held that a district court erred in dismissing as frivolous a suit by a prisoner claiming his eighth amendment rights were violated when they failed to protect him from attack by other prisoners. Billy Horton, a Texas state prisoner, was assaulted by a prisoner on two occasions after he allegedly refused to pay extortion money. Horton duly reported the incidents to prison officials, who told him they could do nothing. Horton was placed in segregation on charges of fighting on both occasions, he also wrote letters to the prison warden stating that his safety was in danger. Prison officials did nothing. Horton filed suit claiming prison officials had violated his eighth amendment right to personal safety. The district court dismissed the suit as frivolous and Horton appealed.

The appeals court reversed and remanded. To be legally or factually frivolous under 28 U.S.C. § 1915(d) the claim must be totally without merit. Courts must accept as true all facts alleged in the complaint. "Prison officials have a duty under the Eighth Amendment to protect inmates from violence at the hands of other prisoners." To prevail on such a claim the plaintiff ...

Furniture Manufacturers Threatened by UNICOR

Small furniture manufacturers say they could be driven out of business by a rival they simply can't compete with: the government-owned Federal Prison Industries, Inc. (FPI). The corporation uses the trade name UNICOR and "employs" prison labor in federal prisons to manufacture furniture for the military and government agencies.

A trade group representing companies that compete for furniture orders for the Pentagon's dormitories and quarters charges in an administrative complaint and lawsuit that FPI has violated the law by expanding its production without first getting the required approval of its board.

FPI has gone on an expansion binge since 1990, doubling their furniture sales to $20.7 million between 1991 and 1992 and growing another 21% the following year. This expansion has "created an undue burden on small businesses and threatens to force them out of business," says Matt Yanson, secretary treasurer of the Quarters Furniture Manufacturers Association. Yanson is also vice president for federal sales at Interior Elements in Columbia, Md.

Interior Elements is a small furniture manufacturer, employing less than 50 people. Between 1991 and 1995, its government dormitory and quarters sales fell from $3 million to under $1 million, according to Yanson. There is also ...

Massachusetts Phone Injunction Affirmed

The court of appeals for the first circuit affirmed a district court's contempt finding against prison officials concerning the monitoring and taping of prisoners' phone calls. In 1979 William Langton and David LeBlanc filed suit against Massachusetts prison officials over the interception and monitoring of their phone calls, including calls to counsel and to relatives. They contend the monitoring violated state and federal wiretapping statutes, e.g., 18 U.S.C. § 2510 et seq., and Mass.Gen.L. ch. 272, § 99 et seq. In 1984 the parties entered into settlement negotiations and settled the case with a permanent injunction which provided that the MA DOC was prohibited from "intercepting, endeavoring to intercept or procuring any other person to intercept, any wire communication by or to William Langton or David LeBlanc, inmates within the custody of the Department, without a specific court order or legislative authorization to do so..." By its terms it only affected the rights of Langton and LeBlanc.

In April, 1994, the MA DOC enacted new regulations concerning prisoner phone use, 103 C.M.R. § 482.00. The rules implemented a system of monitoring prisoner calls and required prisoners to sign a form "consenting" to have their ...

Legal Services Funding Cut

In 1974 Richard Nixon created the Legal Services Corporation (LSC). The purpose of the LSC was to make grants to agencies and groups around the country which provided legal services to the poor: welfare recipients, prisoners, public housing tenants, aliens, farm workers, etc. In recent years Republicans have worked hard to eliminate the LSC because public interest attorneys have in the past successfully represented their clients, who tend not to be very popular with the ruling class in this country.

On April 26, 1996, president Clinton signed into law the 1996 budget for the Department of Justice. In addition to a big cut, from $400 million last year to $278 million this year, the remaining funds now have so many strings attached that people who need but cannot afford legal services won't get them.

The portions relevant to prisoners are that from now on no agency who wants to get any federal LSC funds can represent any prisoners, at all. In addition to that class actions are prohibited, anything to do with abortion, statutes or government action cannot be challenged and a lot more. The implications and effects of this will be felt by anyone too poor to afford ...

Khalfani Trial Due to Begin

Leonard McQuay, also known as Khalfani X. Khaldun, was due to be released in 1997 from the Indiana prison system. But on December 13, 1994, Khalfani was transferred to the Maximum Control Complex in Westville, under investigation for it allegedly stabbing a prison guard at Indiana State Prison. [See: 'IN Prisoner and Guard Executed," April '95 PLN]. This stabbing occurred after prison authorities released half of a cell house out for the evening meal. About two hundred people were out at the time -- anyone could have done the stabbing, including other officers -- but due to previous problems with prison authorities, Khalfani was the only person singled out for the stabbing. He became the scapegoat.

As a teenager Khalfani became involved in gang and drug life on the streets of Gary, Indiana. He was incarcerated in 1987 when he was still a teen. Since his incarceration, he has grown to face the mistakes of his life on the streets and has worked to educate other youth, on both sides of the prison walls, to avoid those mistakes in their lives. Khalfani has become an organizer inside the Indiana prison system, holding study classes on history for other prisoners that promote the ...

Gang War Assault States Claim

A federal district court in New York held that a prisoner who was attacked as part of a "war" between Hispanic and Jamaican prisoners stated an eighth amendment claim for prison officials' failure to protect him. Ted Knowles is a New York state prisoner originally from the island of Antigua, he is black and wears his hair in dreadlocks. While incarcerated at the Rikers Island jail two Hispanic prisoners attacked Knowles and slashed his face. Knowles eventually required sixty stitches to repair the damage. Prison officials told him he had been attacked in retaliation for an earlier attack by Jamaican prisoners on a Hispanic prisoner which was due to an ongoing "war" between Hispanic and Jamaican prisoners. Knowles filed suit claiming that jail officials were deliberately indifferent to his eighth amendment right to personal safety. In its ruling the court denied the defendants, motion for summary judgment and set the case for trial.

In Farmer v. Brennan, 114 S.Ct. 1970 (1994), [PLN, Vol. 5, No. 7], the supreme court held that the eighth amendment requires that prison officials protect prisoners from harm at the hands of other prisoners. To prevail on such a claim the prisoner must show that ...

Bivens Provides Remedy for Work Injury to BOP Prisoners

A federal district court in California held that prison officials may not retaliate against prisoners who request medical treatment; that the Prison Industries Fund is the sole remedy for federal prisoners who suffer work related injuries but does not bar a Bivens claim for denial of treatment to the injuries they suffer. Milton Scott, a federal prisoner, filed suit claiming his eighth and fourteenth amendment rights were violated when he was injured in a work related accident and was then denied proper medical care. After he persisted in seeking medical care he was subjected to a retaliatory transfer. The defendants filed a motion to dismiss for failure to state a claim, which the court denied.

The court held that Scott had stated an eighth amendment claim with regards to his assertion that he was denied proper medical care after he was injured. The court gave extensive discussion to 18 U.S.C. § 4126 which established the Prison Industries Fund that compensates prisoners for injuries they suffer in any prison work related activity. The court also discussed whether or not the Federal Tort Claims Act (FTCA) banned the eighth amendment claims. The court held it did not. 'The deliberate indifference allegations ...

Muslim Can't Be Punished for Refusal to Handle Pork

The court of appeals for the eighth circuit held that a district court erred when it granted prison officials qualified immunity for punishing a Muslim prisoner who refused to handle pork. Roosevelt Hayes is an Arkansas state prisoner and a Muslim. He was assigned a work assignment in the prison kitchen. An unwritten prison policy did not require Muslim prisoners to handle pork. When he reported to the kitchen for work he informed his supervisors of his religious beliefs and was accordingly assigned another kitchen job.

On one occasion Hayes was ordered to prepare pork chops, and he refused, citing his religious beliefs. The kitchen supervisor infracted Hayes and he was found guilty and punished. Hayes filed suit contending that the infraction violated his first amendment right to free exercise of religion. At trial the district court held that prison officials had violated Hayes' religious rights but that they were entitled to qualified immunity because the law on this issue was not clearly established.

The appeals court reversed and remanded holding that the law in question was clearly established at the time the 1992 incident occurred. The court noted that the factual findings by the district court were that Hayes ...

Cavity Search in Public States Claim

The court of appeals for the tenth circuit held that strip searches by members of the opposite gender may violate the fourth amendment. Willie Hayes, a Colorado state prisoner, filed suit claiming his fourth, eighth and fourteenth amendment rights were violated when he was subjected to a visual body cavity search in a common area while several female guards and administrative staff, as well as male guards actually conducting the search, were present. The district court dismissed the eighth and fourteenth amendment claims without prejudice noting there was an ongoing class action suit at the prison in question and Hayes could intervene in that case. The court dismissed the fourth amendment claim with prejudice after prison officials submitted a Martinez report that contradicted several claims made in Hayes' complaint.

The appeals court reversed and remanded holding that the district court erred in dismissing the suit based on the defendants' Martinez report that contradicted Hayes' sworn complaint. Turning to the legal issues raised in the complaint, the court noted that prisoners retain a limited fourth amendment right to bodily privacy, especially regarding searches conducted by or in the presence of members of the opposite sex. The court cites numerous tenth circuit ...

News in Brief

Australia: On May 6, 1996, 30 prisoners in Adelaide's maximum security Yatala prison took 3 guards hostage and threatened to kill them if police stormed the prison. No reason was given for the hostage taking.

Brazil: On May 9, 1996, 53 prisoners escaped from the Carandiru prison by digging a 300 foot tunnel. The prison is the largest in Brazil and houses 6,305 prisoners in downtown Sao Paulo. Police said the tunnel was well made and included electric lights and fans.

CA: The Los Angeles city council passed resolutions to obtain state surplus funds to open an empty 4,000 bed county jail. The $373 million Twin Tower facility is empty because the county does not have the $90 million in annual operating funds to run it.

Central African Republic: In April, 1996, soldiers angry at not being paid, forced their way into the nation's prison in the capital of Bangui and ordered prison guards at gunpoint to open all the cells. The soldiers then freed all the prisoners and allowed them to leave the prison. News reports did not indicate how many prisoners were freed.

Columbia: Alleged drug traffickers ran up a $200,000 phone bill ...

U.S. Supreme Court to Review Cases

Washington Disc. Case

On April 29, 1996, the US Supreme Court announced it would hear an appeal by Washington state prison officials involving a prisoner's challenge to the loss of good time during a prison disciplinary hearing. Jerry Balisok filed suit under 42 U.S.C. § 1983 challenging the loss of good time during a disciplinary hearing at the Washington State Penitentiary. District court judge Quakenbush stayed the lawsuit holding that Balisok could not challenge the hearing result under Heck v. Humphrey, 114 S.Ct. 2364 (1994) [PLN, September, 1994] because the hearing result had not been invalidated. The ninth circuit, in a one paragraph unpublished opinion, reversed and remanded holding that Heck does not control because Balisok was not challenging the lawfulness of his conviction. This defense by prison officials was explicitly rejected in Gotcher v. Wood, 66 F.3d 1097 (9th Cir. 1995). [PLN, February, 1996.]

The supreme court granted certiorari to resolve the question: "'Does Heck v. Humphrey bar Section 1983 action brought by prisoner challenging prison disciplinary procedures under Due Process Clause that would necessarily imply invalidity of prisoner's loss of good time?" The case will be heard during the supreme court's next ...

 

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