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Prisoner Education Guide

Prison Legal News: October, 1997

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Volume 8, Number 10

In this issue:

  1. Experiment in Access: Law Libraries Eliminated in Arizona Prisons (p 1)
  2. U.S. Sues Prisons in Arizona and Michigan (p 2)
  3. A Matter of Fact (p 3)
  4. Seventh Circuit Applies ADA to Prisoners (p 4)
  5. Three Texas Guards Indicted in Beating Death (p 5)
  6. ADA Suits Not Affected by PLRA Attorney Fee Caps (p 5)
  7. Editorial (p 6)
  8. No Qualified Immunity for Denial of Exercise (p 7)
  9. Managed Care Infects Prison Health Services (p 8)
  10. Fifth Circuit Reverses Scott (p 9)
  11. Georgia Prison Guards Speak Out (p 10)
  12. Senior DOC Officials Implicated (p 10)
  13. Felon Disenfranchisement Laws Challenged in Washington (p 11)
  14. Prison Conditions in Venezuela (p 12)
  15. Get More Georgia Prison Information (p 12)
  16. Mississippi Good Time Violates Ex Post Facto (p 13)
  17. California Limits Prison Appeals (p 13)
  18. Filing Fee Assessed in Dismissed Appeal (p 14)
  19. Consent Decree Termination Provision Upheld (p 14)
  20. Released Prisoners Must Pay Filing Fees (p 14)
  21. PLRA Fees Don't Apply to Habeas (p 14)
  22. Released Prisoner Must Pay Filing Fees (p 14)
  23. PLRA Physical Harm Requirement Not Retroactive (p 14)
  24. PLRA Fees Don't Apply to Released Prisoners (p 14)
  25. PLRA Attorney Fee Cap Not Applicable to Pending Cases (p 15)
  26. Arizona DOC Contempt Fines Affirmed (p 15)
  27. Magistrates Lack Jurisdiction to Impose Contempt Sanctions (p 16)
  28. Clemency Letter Ban Questioned (p 16)
  29. $5,000 Verdict for Snitch Jacketing Affirmed (p 17)
  30. Eleventh Circuit Reinstates Beating Verdict (p 17)
  31. Court Allows Silencing of Environmental Whistle-Blower (p 18)
  32. California Guards Set Up Prisoners (p 19)
  33. California, Texas, Arizona Suit Seeking Alien Incarceration Money Fails (p 20)
  34. Recent US Supreme Court Rulings of Interest: Civil Rights (p 20)
  35. Recent US Supreme Court Rulings of Interest: Habeas Corpus (p 20)
  36. Recent US Supreme Court Rulings of Interest: Court Access (p 20)
  37. CCA Prison Off to a Rocky Start (p 21)
  38. A Day at the Human Zoo (p 21)
  39. Prison Uprisings Sweep Columbia (p 22)
  40. Free to Wardens But Not Convicts? (p 23)
  41. Same Sex Harassment of Prisoner Workers Okayed (p 23)
  42. LSC Ban on Funding Prison Litigation Enjoined (p 24)
  43. Arizona Prisoner Entitled to Kosher Diet (p 24)
  44. Sexual Abuse by Guard Nets New York Jail Prisoner $750,000 (p 25)
  45. Rhode Island Probation Fee Ruling Reversed (p 25)
  46. News in Brief (p 26)
  47. New York AA Program Violates Establishment Clause (p 27)

Experiment in Access: Law Libraries Eliminated in Arizona Prisons

The August 1996, issue of PLN reported Lewis v. Casey, 116 S.Ct. 2174 (1996). The Lewis court, though not explicitly overturning Bounds v. Smith, 430 US 817, 97 S.Ct. 1491 (1977), redefined the meaning of "court access" as it applies to prisoners. The Bounds court held that prison officials are required "to provide indigent inmates with access to a reasonably adequate law library."

The Lewis court redefined the scope and intent of Bounds by relying instead on its experimental doctrine and actual harm clauses. "Moreover," justice Antonin Scalia wrote for the majority, "the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that 'we encourage local experimentation in various methods of assuring access to the courts."'

On remand from the Lewis court, on July 1, 1997, district judge Roger G. Strand, based strictly on the merits of "actual harm," which the supreme court in Lewis said did not warrant "system-wide relief'' dismissed the plaintiffs legal access claims with prejudice.

Strand's ruling essentially closed the book on Lewis. "The class action case challenging ADOC's legal access program is over," said Marjorie Rifkin, staff counsel for the ACLU-National Prison Project which represented Arizona ...

U.S. Sues Prisons in Arizona and Michigan

In February 1997, the Justice Department filed separate lawsuits in U.S. District Court in Phoenix and Detroit alleging that state-run prisons in Michigan and Arizona fail to protect female prisoners from sexual assaults committed by prison guards and staff.

At the Arizona Center for Women and at state prison facilities in Alhambra, Perryville, and Tucson, female prisoners have been subjected to sexual misconduct and unlawful invasion of privacy, including prurient viewing during showering, toileting, and dressing, the department charged.

At Michigan's Scott and Crane correctional facilities, female prisoners have been subjected to the same sexual criminal behavior as the women at the Arizona facilities. But the department also alleges that the Michigan women are receiving inadeqate medical and mental health care as well.

The Department of Justice alleges that the conditions discovered in the Arizona and Michigan facilities violate the federal Civil Rights of Institutionalized Persons Act of 1980.

Michigan refuses to allow Justice investigators access to its prisons and would not negotiate to resolve the allegations, the department said. Arizona refuses to allow Justice attorneys to interview prison staff and prisoners.

The Associated Press

A Matter of Fact

The FBI's Uniform Crime Reporting (UCR) crime index for 1996 (preliminary figures) showed an overall crime rate decrease of 3 percent. Violent crime decreased 7 percent. It was the largest single-year drop since 1982, and marks the fifth consecutive year that UCR crime rates have declined.

California's largest cities experienced a 12 percent decline in the 1996 crime rate, the largest single-year decrease on record according to state justice department records.

New York City recorded just 45 murders in the month of April, 1997, the first time since 1966 that there were fewer than 50 homicides in the city in a single month. The homicide rate in NYC is down 29 percent from the same period in 1996. Overall serious crime is down 15.6 percent from 1996.

A congressional study noted that half of all U.S. homicides occur in the nation's 63 largest cities, which together comprise only 16 percent of the U.S. population. Overall, the study found that 10 percent of all places in the nation are where about 60 percent of all "crime" occurs. And where are these areas? "Urban poverty areas," the report concludes.

In 1995, U.S. banks lost a ...

Seventh Circuit Applies ADA to Prisoners

The court of appeals for the seventh circuit held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 and the Rehabilitation Act (RA), 29 U.S.C. § 794, explicitly apply to state prisoners. Anyone litigating an ADA or RA claim will find this ruling useful. The ruling also contains an interesting discussion on the non applicability of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203, to prisoners and the doctrine of judicially created statutory exemptions.

In the May, 1997, issue of PLN we reported Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) where the seventh circuit expressed doubt that the ADA applied to prisoners. A question it left open in Love v. Westville Corrections Center, 103 F.3d 558 (7th Cir. 1996)[PLN, Sept. '97] where the court affirmed a jury verdict in favor of a prisoner. The circuits are currently divided on whether the ADA applies to prisoners, with the fourth and tenth circuits holding it does not and the third, ninth and eleventh holding it does.

Ricky Crawford was a blind Indiana state prisoner. He filed suit claiming that because of his blindness prison officials denied him access to a ...

Three Texas Guards Indicted in Beating Death

In the July issue of PLN we reported "Judge Rules Texas Prisoner's Death Excessive Force" about Gary Crenshaw, 31, who died at the hands of his captors January 26, 1997, at the French Robertson Unit.

On June 30, 1997, a Jones County grand jury indicted Sgt. Monte Baker and guards Michael Helms and Bradley Johnson on manslaughter charges.

Prison officials maintain that Crenshaw passed out while guards were restraining him after a violent outburst. An administrative review at the prison found that excessive force was not used.

But Taylor County justice of the peace Sam Matta ruled that Crenshaw died by asphyxiation and termed his death a homicide.

Jones County grand jurors, however, did not address the possible use of excessive force, finding only that Baker, Helms, and Johnson failed to seek medical aid for the dying Crenshaw. If convicted of the second degree felony, the three could face up to 20 years in prison.

PLN readers might remember a similar case two years ago. On May 23, 1995, Texas prison guard Joel Lambright was convicted of manslaughter for beating and kicking to death Terrell unit prisoner Michael McCoy. Lambright was the first Texas guard ever to be convicted ...

ADA Suits Not Affected by PLRA Attorney Fee Caps

There is a great deal of talk and litigation about the Prison Litigation Reform Act which was part of the Omnibus Consolidated Rescissions and Appopriations Act of 1996 (PL 104-134, 110 Stat 1321 (1996)). One aspect of the PLRA causing a great deal of consternation is the severe limitations on attorney fees. Section 803 of the Act amended 42 USC § 1997e to provide:

(d) Attorney Fees. (1) In any action brought by a prisoner who is confined to any jail, prison or other correctional facility, in which attorney's fees are authorized under section 2 of the Revised Statutes of the United States (42 U.S.C. 1988), such fees shall not be awarded, except to the extent that -- [and several onerous limitations on attorney fees follow].

Not surprisingly, the effect of this change is to limit the ability of most attorneys to litigate prison conditions cases since the fee rate now apparently allowed is sometimes half or even less of the attorney's ususal rate for cases with such high risks. However, one type of case which is being litigated for prisoners is not affected by this provision.

Despite some rapidly waning doubt about its applicability to prisons and ...


In the July 11 "Living Arts" section of the New York Times, appears a feature titled, 'For a Summer Getaway, a Model Prison." It is a personal narrative of NYT reporter Judith H. Dobrzynski's visit to Eastern State Penitentiary in Philadelphia.

Eastern State, built in the 1820's, was the world's first 'penitentiary." It last housed prisoners in 1970 and is now a decaying tourist attraction. It is one of only seven American sites on the World Monuments Fund's list of 100 most endangered cultural heritage sites. Today, for a $7 admission fee, you can take a guided tour of the penitentiary, which is what Ms. Dobrzynski did.

The tour guide narrates a history of Eastern State. It was built at a time when Quakers repudiated the then-contemporary punishment model of corrections in favor of isolation, reflection and work. The penitentiary represented a dramatic shift from the punishment model to one wherein criminals were to be "reformed" in solitude.

Ms. Dobrzynski describes one of the refurbished cells: "At 8 by 12 feet, it is roomier than today's prison cells with space for a bed, stool, workbench, desk (plus a bible) and toilet. The walls are whitewashed ...

No Qualified Immunity for Denial of Exercise

A federal district court in Illinois held that prison officials were not entitled to qualified immunity from money damages for denying segregation prisoners all opportunity for out of cell exercise for one year. McNeal Watts, an Illinois state prisoner, was placed in segregation to serve a one year sanction after being found guilty in a disciplinary hearing of assaulting two guards and setting two fires. Anthony Ramos was the manager of the segregation unit at the Stateville prison and when Watts arrived Ramos imposed four consecutive 90 day recreation restrictions. This effectively denied Watts all opportunity for outdoor or out of cell exercise for one year. Watts filed suit claiming the restriction violated his eighth amendment rights.

Ramos filed a motion for summary judgment on grounds of absolute and qualified immunity and issue preclusion. The court granted the motion only with regards to absolute immunity because state officials cannot be sued in their official capacities for money damages. The court denied the motion on all other issues.

Ramos claimed that this suit was barred because in Davenport v. DeRobertis, 653 F. Supp. 649 (ND IL 1987), aff'd, 844 F.2d 1310 (7th Cir. 1988), Stateville prisoners filed a class ...

Managed Care Infects Prison Health Services

by Adrian Lomax

In September, 1996, Melody Bird complained to guards at Florida's Pinellas County Jail that she was experiencing severe chest pains and having trouble breathing. Nurses at the jail, finding no discernible blood pressure, concluded that Bird was suffering a heart attack.

An immediate call for an ambulance to transport Bird to a hospital emergency room would likely have saved the prisoner's life. Instead of calling 911, though, the nurses called the medical director of Emergency Medical Services Associates (EMSA).

Pinellas County had contracted with the private company to provide health care services to its county jail inmates. EMSA's procedures did not allow for its employees at the jail to send a prisoner to an outside hospital without prior approval from a company bureaucrat.

Thirteen hours after the nurses first contacted EMSA's medical director, they received permission to call an ambulance. But Melody Bird couldn't wait that long. Her pulse stopped before she reached the emergency room.

Bird, a 24-year-old jailed on prostitution charges, had a history of serious heart problems. Nonetheless, EMSA medical staff at the jail took her off previously prescribed heart medication.

The contract between Pinellas County and EMSA is ...

Fifth Circuit Reverses Scott

The court of appeals for the fifth circuit, sitting en banc, reversed its prior holding in Scott v. Moore, 85 F.3d 230 (5th Cir. 1996) [PLN, June, 1997] that inadequate jail staffing violated the due process rights of a woman detainee who was repeatedly raped by a jail guard. This ruling will make it extremely difficult to hold municipalities liable for constitutional violations that befall jail detainees in the fifth circuit. Artelia Scott was arrested on minor charges and placed in the Killeen City, Texas, jail. The jail had a policy of only one jailer being on duty at any given time. While in the jail Scott was raped several times by jail guard George Moore. Eventually Moore resigned and was convicted of the rapes.

Scott filed suit in state court against Moore and the city. Moore declared bankruptcy and was dismissed from the suit. The city then removed the case to federal court where it won summary judgment. The court of appeals affirmed on all counts except Scott's claim that inadequate staffing at the jail violated her right to due process by making rapes by guards more likely. On remand the district court again dismissed the suit ...

Georgia Prison Guards Speak Out

Shortly after Wayne Garner took over as Georgia's Corrections Commissioner in December 1995, he addressed the state legislature wherein he quipped, "...thirty to thirty-five percent [of GA prisoners] ain't fit to kill, and I'm going to be there to accommodate them." [See: "Georgia Prisons Enter the Dark Ages," PLN Vol. 7, No. 4]. In early 1997 PLN reported that two lawsuits had been filed on behalf of GA prisoners alleging brutality during prison shakedowns carried out by Garner and a large force of hand-picked "tactical squad" guards. [See: "Lawsuits Target Georgia Prison Abuse," PLN Vol. 8, No. 2].

Since then at least two other suits have been filed naming Garner and others as defendants in prison shakedown related incidents. More remarkably, though, reports have begun to surface of prison employees breaking the "blue code of silence" in sworn depositions taken by Robert Bensing and other attorneys of the Southern Center for Human Rights who represent prisoners in the suits.

Phyllis Tucker was a guard assigned to a "rover" position at Hays State Prison in July 1996, when Garner and tactical squad members stormed the prison. She said she saw a sergeant shove a prisoner face first into ...

Senior DOC Officials Implicated

After lower ranking guards crossed the blue line, Hays state prison Lt. Ray McWhorter offered a stunning account of events -- including allegations that senior GA DOC officials not only witnessed the massive shakedown, but were instrumental in igniting the firestorm of brutality.

McWhorter admitted taking part in the attack on prisoners after he saw a top Garner aide, A.G. Thomas, drag a prisoner across the floor by his hair.

"When Mr. Thomas did that," McWhorter said, "we were all under the impression that it was okay to do it. If Mr. Thomas can slam one, then we can slam one, too. That is just the dad-gum way it was. Folks were getting forced to the floor and slammed into the wall and flexicuffed and all that stuff. It was a dad-gum shark frenzy in G building. It was a free-for-all. You know how sharks do. They see a spot of blood, and then here come the sharks everywhere from a mile around."

McWhorter said that same day Commissioner Wayne Garner watched in another cellblock while prisoners, some hand-cuffed and lying on the floor, were punched, kicked and stomped until blood streaked the walls. So far, McWhorter, who headed the ...

Felon Disenfranchisement Laws Challenged in Washington

In the January and December, 1996, issues of PLN we reported Baker v. Cuomo, 58 F.3d 814 (2nd Cir. 1995) and Baker v. Pataki, 85 F.3d 919 (2nd Cir. 1996)(en banc) in which New York state prisoners were using the Voting Rights Act (VRA), 42 U.S.C. § 1971 and 1973, to challenge New York state laws which prohibit felons and prisoners from voting. Their legal strategy largely derived from that set forth in "Giving Cons and Ex Cons the Right to Vote" by Andrew Shapiro which we published in the May, 1994, issue of PLN. The strategy relies on the fact that minorities are disproportionately among those convicted of crimes, and disenfranchised, and therefore the voting power of minorities is diluted. A VRA strategy is appropriate in light of the fact that in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655 (1974) the U.S. supreme court held that the fourteenth amendment allows citizens convicted of crimes to be disenfranchised.

In 1996 Washington prisoners Muhamad Shabazz Farrakhan (AKA Ernest Walker) and several other black, Hispanic and Native American prisoners filed suit in the federal district court in Spokane, Washington challenging the legality of ...

Prison Conditions in Venezuela

Human Rights Watch has been investigating prison conditions throughout the world for the last 10 years. Punishment Before Trial: Prison Conditions in Venezuela, issued in March 1997, is the 29th resulting report to appear.

HRW/Americas investigators spent three weeks in Venezuela in March 1996 during which they visited 11 of the country's 32 prisons. One of the visited prisons was the country's only separate women's facility. Investigators viewed each facility completely and spoke freely with prisoners. In addition, they spoke with government officials, prison administrators and staff, judges, representatives of non-governmental organizations and academics. Over and above that contained in Venezuelan law itself, the criteria used to evaluate prisons were the UN Standard Minimum Rules for the Treatment of Prisoners (1955) and international treaties to which Venezuela is signatory.

Three fourths of those in Venezuela's prisons have not yet been sentenced. Many have not even been tried though they may have been there five years or longer. Since most defendants, like other prisoners, are poor they lack court representation; they have been imprisoned and forgotten. The courts are overloaded: 49 criminal courts ruled in approximately 16,500 cases during 1996 but received 18,000 new ...

Get More Georgia Prison Information

For those interested in learning more about the current wave of human and civil rights abuses in the Georgia DOC the Prison and Jail Project, a non profit grassroots group in Georgia, has published a 45 page booklet titled "Stop Human Rights Abuses in Georgia Prisons." The booklet provides a broad but detailed overview of the Georgia prison system under the command of Wayne Garner. It includes copies of numerous newspaper articles (many of which were used as source material for the above articles); letters from prisoners; excerpts from court pleadings filed on behalf of prisoner plaintiffs; copies of letters sent to the U.S. Department of Justice seeking an investigation into the abuses; editorials from local papers condemning the brutality and much more. The booklet provides a wealth of information that PLN cannot due to our space limitations.

In addition to the booklet the Prison and Jail Project also publishes a bimonthly newsletter, "Freedomways," which focuses on coverage of Georgia prisons and jails. The booklet costs $5, subscriptions to "Freedomways" are $10 a year. Contact: Prison and Jail Project, P.O. Box 6749, Americus, GA 31709. (912) 924-0671.

Mississippi Good Time Violates Ex Post Facto

The supreme court of Mississippi held that retroactive application of a statute requiring felons to serve 85% of their sentence before release violated the ex post facto provisions of the Mississippi and United States constitutions. In 1995 the Mississippi legislature enacted Senate Bill (SB) 2175 which amended Miss. Code Ann. § 47-5-138 to require that all felons serve 85% of their sentence before release. Prior to the bills passage prisoners were eligible for parole after serving 25% of their sentence. The new law was specifically made applicable to prisoners convicted before its July 1, 1995, enactment date.

A large number of prisoners filed suit in Hinds County circuit court seeking a declaratory judgment that retroactive application of SB 2175 violated their ex post facto rights. The circuit court agreed, granted relief and the state appealed.

Both the United States and Mississippi constitutions prohibit ex post facto laws (which criminalize behavior or increase the punishment for acts that have occurred before the laws passage). Its purpose is to ensure that citizens have fair warning of legislative actions. The court gives a detailed discussion of ex post facto cases and held that under this standard SB 2175 was unconstitutional because it did not ...

California Limits Prison Appeals

Continuing the agenda of the prison guards union, the California Department of Corrections issued a notice of changes to prison administrative regulations governing appeals of conditions of confinement by prisoners. The changes include doubling the time limits prison staff have to respond to administrative appeals, limiting the number of appeals a prisoner may file within seven days to one, permitting prison staff to reject appeals if they contain "false information, or profanity or obscene language," and allowing staff to suspend a prisoner's right to appeal for up to six months if they determine he or she has "abused" the appeal process.

The guards union claims the restrictions are long overdue and necessary to stem the flood of "unwarranted complaints" filed by people in the world's largest prison system. According to a union spokesperson, more than 40,000 administrative appeals were filed by prisoners in 1996. Prison officials say the changes are designed to streamline the appeal process, to force prisoners to use the appeal system more responsibly, and to allow staff adequate time to "address and resolve the appeal issue at hand," according to Bonnie Garibay, the prison system's chief of appeals.

In Lancaster, a maximum security ...

Filing Fee Assessed in Dismissed Appeal

The court of appeals for the fifth circuit held that under the PLRA prisoner litigants remain responsible for appellate filing fees in cases where the appeal is eventually dismissed for lack of jurisdiction. The court held that under 28 U.S.C. § 1915(b)(1) prisoners are liable for the filing fee upon filing a notice of appeal. "We hold that the plain language of the PLRA requires this court to assess appellate fees at the moment the appeal is filed, regardless of whether the appeal is later dismissed." See: Williams v. Roberts, 116 F.3d 1126 (5th Cir. 1997).

Consent Decree Termination Provision Upheld

A federal district court in Indiana held that 18 U.S.C. § 3636(b)(2), which allows for the immediate termination of previously entered consent decrees, is constitutional. The court rejected arguments that § 3626(b)(2) violates prisoners' right to equal protection, impairs contracts and violates the separation of powers doctrine. This ruling comes after the plaintiffs filed a Fed.R.Civ.P. 60(b) motion asking the court to reconsider a prior ruling terminating the consent decree at issue in this case, which involved the religious rights of Muslim Indiana state prisoners, by challenging the constitutionality of § 3626(b)(2). The court denied the motion and upheld the challenged statute. See: James v. Lash, 965 F. Supp. 1190 (ND IN 1997). The prior ruling was reported in the May, 1997, issue of PLN as James v. Lash, 949 F. Supp. 691 (ND IN 1996).

Released Prisoners Must Pay Filing Fees

The court of appeals for the District of Columbia Circuit held that PLRA fee requirements apply to all federal civil actions and must be paid by prisoners later released from prison. Shortly before being released from prison Peter Smith, a federal prisoner, filed suit in the appeals court under the Privacy Act (PA), 5 U.S.C. § 552(a), seeking an order directing the U.S. Parole Commission to correct inaccuracies in his parole files. The court did not rule on the merits of Smith's petition, holding he was required to pay the filing fees first.

The court held that all petitions for writs of prohibition that include underlying civil claims are subject to the PLRA's fee requirements. "We hold that because Smith's petition includes compensatory and punitive damage claims under the Privacy Act ... that are civil in nature, and was filed after the effective date of the PLRA while he was still in prison the fee requirements of the PLRA apply." The court held that release from prison does not relieve prisoners from the obligation to pay filing fees under the PLRA. See: In Re Smith, 114 F.3d 1247 (DC Cir. 1997).

PLRA Fees Don't Apply to Habeas

The court of appeals for the tenth circuit joined every other circuit to consider the issue by holding that the PLRA's fee requirements do not apply to habeas corpus petitions. Thus, indigent prisoners can still seek a waiver of filing fees for habeas petitions if they are indigent. See: McIntosh v. U.S. Parole Commission, 115 F.3d 809 (10th Cir. 1997).

Released Prisoner Must Pay Filing Fees

The court of appeals for the fifth circuit held that a person who files a notice of appeal while in prison is subject to the PLRA's filing fee requirements even if later released from prison. The court distinguished this case from Haynes v. Scott, 116 F.3d 137 (5th Cir. 1997) (above) by stating that Haynes dealt only with the bank account provisions of the PLRA. The court in this case held that the PLRA's filing fee requirement is triggered by the filing of the appeal. Thus, in this case the appellant was required to pay the filing fee because he had filed the notice of appeal while he was in prison. The court joined the seventh circuit by concluding the appellants release from prison was irrelevant. There is now a split in the circuits on this issue with the fifth, seventh and D.C. circuits holding released prisoners are still liable for filing fees and the second and sixth circuits holding they are not. The court is silent about released prisoners too poor to pay the filing fees and whether the PLRA's installment payment plan still applies. In all likelihood this ruling will be used as ...

PLRA Physical Harm Requirement Not Retroactive

A federal district court in Indiana held that 42 U.S.C. § 1997e(e), which precludes suits by prisoners seeking money damages in the absence of physical harm, does not apply retroactively to suits filed before the PLRA's enactment. The court also held a prisoner states a claim for violation of his first and eighth amendment rights when prison employees incite other prisoners to attack him.

Leon Thomas is an Indiana state prisoner. He filed suit claiming that prison guards showed other prisoners documents indicating he had set up a prison guard who was arrested on charges of dealing drugs to prisoners. After the documents were passed around Thomas was threatened by other prisoners and when he reported the threats to prison staff they told him he "deserved everything he got." Thomas claimed this violated his eighth amendment right to be free from cruel and unusual punishment. The defendants moved to dismiss the suit for failure to state a claim. The court denied the motion.

While verbal harassment by guards does not violate the constitution, the conduct at issue here went beyond verbal harassment. The court noted that because Thomas's role in the guard's arrest impacted the ...

PLRA Fees Don't Apply to Released Prisoners

The court of appeals for the fifth circuit held that released prisoners who are indigent need not pay PLRA filing fees. Harry Haynes was a Texas state prisoner released on parole shortly after suing prison officials. Haynes had sought leave to file suit In Forma Pauperis (IFP) without paying the filing fees before the PLRA was enacted on April 26, 1996.

"Although Haynes must file an affidavit to proceed IFP, he need not pay the filing fee required by the PLRA. As with the prison account statement in section (a)(2), the fee requirement applies exclusively to prisoners ... If we grant Haynes leave to file this suit as a pauper, he will not be responsible for the filing fee at all." Haynes was ordered to file an affidavit of poverty complying with 28 U.S.C. § 1915(a)(1) to continue his appeal. See: Haynes v. Scott, 116 F.3d 137 (5th Cir. 1997).

PLRA Attorney Fee Cap Not Applicable to Pending Cases

A federal district court in Michigan, in two consolidated long running class action suits, held that 42 U.S.C. § 1997e(d)(3) which limits attorney fees in civil rights cases to 150% of the amount allowed court appointed counsel under 18 U.S.C. § 3006A, cannot be retroactively applied to work performed after the PLRA's April 26, 1996, enactment in cases pending before that date. The court cites numerous published and unpublished cases which have held the PLRA attorney fee caps cannot be applied retroactively to work done before its passage.

The court had previously ruled that in this case lead counsel was entitled to $150 an hour and associate counsel to $135 an hour. If the PLRA were applied the court held the attorneys would be entitled to a flat fee of $112-50 an hour (attorneys litigating this issue should note that the court refers to a judicial conference determination that counsel in some districts are entitled to $75 an hour under § 3006A for all time billed, which is higher than the $65 an hour for in court time and $45 an hour for out of court time otherwise provided for in § 3006A).

"Applying the PLRA rate ...

Arizona DOC Contempt Fines Affirmed

In the July, 1996, issue of PLN we reported Hook v. Arizona, 907 F. Supp. 1326 (D AZ 1996) where the court held Arizona DOC officials In contempt for refusing to pay the fees for special masters appointed by the court to oversee implementation of court orders in four separate prisoner class action suits. The Arizona legislature enacted Arizona Revised Statute 35-152 which prohibits payment of fees and expenses to special masters appointed by the federal courts unless the legislature appropriated such funds. Needless to say, no funds were appropriated. Arizona prison officials moved to modify the rulings and eliminate the special master requirements based on the state statute. The district court denied the motion, held then DOC director, Samuel Lewis, in contempt and ordered him to pay the special master fees and expenses as well as a fine of $10,000 a day for future noncompliance with the special master provisions. The court of appeals for the ninth circuit affirmed the ruling.

The appeals court held it had jurisdiction to hear the state's appeal as an interlocutory appeal under 28 U.S.C. § 1292(a)(1).

The court held that § 35-152 was void under the supremacy clause of ...

Magistrates Lack Jurisdiction to Impose Contempt Sanctions

The court of appeals for the ninth circuit held that magistrates lack jurisdiction to impose criminal contempt orders, even when the parties have consented to proceed before a magistrate. James Bingman, a Montana state prisoner, filed suit after not receiving adequate dental care. The magistrate judge issued a preliminary injunction ...

Clemency Letter Ban Questioned

The court of appeals for the seventh circuit held that an Illinois Department of Corrections (DOC) policy prohibiting employees from writing directly to the Prisoner Review Board (PRB) on behalf of prisoners seeking clemency may be unconstitutional. Larry Shimer filed a petition for clemency and asked several prison guards to provide the PRB with letters on his behalf. The guards said they were willing to write the letters for him but that an "unwritten prison policy" prohibited DOC employees from writing the PRB directly. Shimer filed suit challenging the policy and the district court dismissed the suit.

The appeals court reversed and remanded. As a preliminary matter the court held that Shimer had standing to litigate the matter on behalf of the prison guards whose first amendment rights were affected. The court held that Shimer had also shown injury in fact, causality and redressibility, all of which are necessary to satisfy the standing requirements of federal litigation.

The court held that prison officials had failed to show that any legitimate penological policy was advanced by the letter ban. Prison officials claimed that the ban was designed to reduce corruption and retaliation against guards. The court noted that the defendants had ...

$5,000 Verdict for Snitch Jacketing Affirmed

The court of appeals for the tenth circuit affirmed a $5,000 judgment in favor of a jail prisoner who was assaulted after a guard told other prisoners he was a snitch. The court also affirmed an award of $93,649.61 in attorney fees and costs to the plaintiff ...

Eleventh Circuit Reinstates Beating Verdict

The court of appeals for the eleventh circuit reversed a judgment as a matter of law entered against a Florida prisoner after a jury found in his favor. The court reinstated both the verdict and a damage award for the prisoner. The court also held that the Florida DOC's ...

Court Allows Silencing of Environmental Whistle-Blower

If a business near your home was dumping raw sewage into rivers and improperly storing toxic materials that contaminated your drinking water supply, would you want to know about it? Would you be grateful if an employee reported this to the proper authorities? How would you feel if the employee who reported these illegal acts was fired, retaliated against and suffered hardship as a result of his whistleblowing and when he went to court seeking redress was told that if he had kept his mouth shut nothing would have happened to him?

The employee is Douglas Coupar, a federal prisoner, and his employer was Federal Prison Industries (FPI), also known as UNICOR. The court was the federal court of appeals for the ninth circuit, which sits just below the U.S. supreme court and whose rulings are binding on the 60 million people living in its territory (CA, AZ, NV, OR, MT, ID, WA, AK, HI and Guam).

Coupar was in a federal prison in El Reno, Oklahoma, working for FPI. He complained to the U.S. Labor Department that FPI was improperly storing toxic chemicals, which were leaking into the ground, and that raw sewage from the prison factory ...

California Guards Set Up Prisoners

After a scandal in which guards boiled a mentally ill prisoner alive, California's most notorious prison is once more the target of an investigation into abuse and excessive force. Pelican Bay prison guards are accused of setting up prisoners convicted of sex offenses against minors for assault. One guard faces a five-count felony complaint, two have been fired, and two others have been identified as suspects according to an FBI spokesperson in San Francisco who said the case is under "active investigation."

The targeting of child molesters and other prisoners by guards for assault "has been a serious problem at Pelican Bay," said Steve Fama, an attorney with the Prison Law Office in San Rafael. "What it essentially is, is the establishing of a kangaroo court of justice, where individual [guards] decide who should receive extra punishment or, in the most extreme cases, who should live or die. It's about as serious a problem as one could imagine in prison."

Fama said the charges of guard-arranged beatings, following so soon on the tail of a federal judge's findings of widespread abuse and excessive force at Pelican Bay, "points out some fundamental problems" with the entire prison system ...

California, Texas, Arizona Suit Seeking Alien Incarceration Money Fails

In past issues of PLN we have reported that several states, including Arizona, California, Washington and New Jersey, had sued the federal government seeking reimbursement for the expense of incarcerating illegal aliens. To date all the suits have fallen flatly on their faces, despite having been filed with much fanfare and press conferences. These rulings illustrates that the suits were filed for political theatrics rather than any legal merit. Had a regular attorney filed these suits they would have probably been sanctioned for filing a frivolous suit.

The court of appeals for the ninth circuit affirmed dismissal, for failure to state a claim, of suits filed by the states of Arizona and California seeking billions of dollars from the federal government to pay for the incarceration of illegal aliens, ostensibly because the federal government has failed to enforce federal immigration laws. The court dryly noted that "no federal mandate requires California to pursue a penal policy resulting in these costs."

Faced with spiraling prison costs states like California are going to have to pay the expense of having the world's largest prison system. Locking up undocumented aliens for minor offenses rather than simply deporting them is going to continue ...

Recent US Supreme Court Rulings of Interest: Civil Rights

The court held that 18 U.S.C. § 242 imposes criminal liability on government officials who violate the constitutional rights of citizens if the unlawfulness in question is apparent in light of preexisting law. The court adopted a test identical to the qualified immunity test used to impose civil liability for money damages on government officials. The case involves a Tennessee state judge convicted under this statute for sexually assaulting numerous court employees. This ruling opens the possibility that prison officials found liable for violating constitutional rights under § 1983 or in Bivens actions may face criminal prosecution for the same acts. Nothing limits § 242 prosecutions to physical attacks. See: United States v. Lanier, 117 S.Ct. 1219 (1997).

Recent US Supreme Court Rulings of Interest: Habeas Corpus

The court held that the standard of review, articulated by enactment of the Anti Terrorism and Effective Death Penalty Act (AEDPA), for federal habeas corpus petitions does not apply retroactively to petitions filed on or before the AEDPA's enactment on April 23, 1996. This includes habeas petitions pending on the date of enactment. The case contains a detailed analysis of congressional intent in statutes which may be retroactive. The court also mocked the crude, illogical drafting of the AEDPA. See: Lindh v. Murphy, 117 S.Ct. 2059 (1997).

Recent US Supreme Court Rulings of Interest: Court Access

The court struck down a Mississippi law that conditioned appeals in parental rights cases to prepayment of record preparation fees, with no provisions for indigents. The case involved a mother who lost parental rights, forever, to her two minor children and she could not appeal the trial court ruling as she was unable to afford to prepay the $2,300 required to have the trial transcript prepared. The court held it was unconstitutional for states to deny indigent litigants the appellate review afforded paying litigants when "fundamental rights" are at stake. Readers should note that the waiver of fees in civil cases such as this is the exception, not the rule. See: M.L.B. v. S.L.J., 117 S.Ct. 555 (1997).

CCA Prison Off to a Rocky Start

In its first five weeks of operation, the CCA-owned and operated Northeast Ohio Correctional Center (NOCC) in Youngstown was locked down three times. According to warden Willis Gibson, the first lockdown occurred on May 30 after 50 Washington D.C. prisoners, apparently unhappy about their transfer, had to be forced into their cells by guards using tear gas.

The prison was again locked down on June 16 after a guard was stabbed with an ice pick-style weapon while attempting to break up a fight in the gymnasium, Gibson said.

The last of the three lockdowns occurred June 20 after guards found a prisoner bleeding near his cell from three puncture wounds. The prisoner told guards he had fallen out of bed.

According to Youngstown police, CCA prison officials repeatedly obstructed police efforts to investigate the June 20 stabbing. A police report on the incident said that CCA prison officials hung up on the police twice and questioned the department's authority to probe crimes inside the prison operated by Nashville-based CCA.

Warden Gibson said he was unsure about the details. "Someone might have said that, but that's not correct," Gibson said. "They should not have said that."

Police say ...

A Day at the Human Zoo

My husband and I toured the Northeast Ohio Correctional Center, a new "private prison" that is soon to open in Youngstown. Near the entrance there is a bulletin board with the words, "Yesterday's Closing Stock Price," a reminder that the Corrections Corporation of America is in business to make a profit.

Fifteen hundred prisoners will arrive from Washington, D.C. in the next few weeks. Eventually there may be more than three thousand housed here. Some will live here for the rest of their lives.

One of the first places we toured was the visiting room. Although this is a medium security prison -- not maximum security there will be no contact visits. On one side of a very large room there are about ten tiny stalls with phones. Prisoners will be on the other side of a thick glass barrier. There will be no hugs, no children on the knee as in the Trumbull Correctional Institution, a close security state prison where we visit.

The woman who was showing us around told us the prisoners will be dressed in orange, 'so you will know who the enemy is." If this is the attitude of staff before any prisoners arrive ...

Prison Uprisings Sweep Columbia

A large number of prison uprisings and breakouts occurred throughout Colombia in the first quarter of 1997. On January 5, eighteen prisoners escaped from the prison in Arauca. On January 12, rebels from the Revolutionary Armed Forces of Columbia broke 39 prisoners out of the Caloto prison in southwestern Columbia. The same day in Soacha, near Bogota, 19 prisoners escaped, and the next day six prisoners escaped from Roldanillo prison in the southwest. On January 27, 400 prisoners began a hunger strike at Picalena prison in central Columbia.

On February 18, in the southern city of Florencia, 11 accused rebels escaped from prison. On February 26, a truck transporting 38 prisoners in Medellin was attacked and the prisoners freed. On February 26, Valledupar prisoners burned the prison's administrative offices, the storage room and the files.

On March 25, 2,800 prisoners in Bogota's maximum security Modelo Prison seized control of two cellblocks and negotiated an agreement on their demands.

On April 3, 1997, a group of prisoners seized control of the La Judicial prison in Valledupar in northern Columbia. Four guards were killed and three were injured in the initial clashes; prisoners seized 16 or 17 hostages, most ...

Free to Wardens But Not Convicts?

In response to a recent issue [April '97] of Prison Legal News, [you] apparently told your readers that free copies of the Federal Judicial Center publication "Resource Guide for Managing Prisoner Civil Rights Litigation" were available at no charge by writing to our office. That information is not correct.

When the Center first published the "Resource Guide" last year, we sent two copies to wardens in all federal and state adult long-term correctional facilities .... In all, we mailed over 2,000 copies of this publication at no charge to state and federal correctional facilities initially, and in response to subsequent requests from wardens and other prison officials we have sent hundreds of additional copies, also at no charge. Moreover, this publication is also available on the Internet at and may be downloaded and freely photocopied.

We have been flooded with over 400 letters from prisoners responding to the article in Prison Legal News. Although we usually respond to individual letters by advising inmates to refer to their prison libraries, we do not have the resources to respond to 400 letters. We ask that you print a correction in your next issue of Prison Legal News and inform ...

Same Sex Harassment of Prisoner Workers Okayed

The court of appeals for the ninth circuit held that male prisoners have no clearly established right to be free from sexual harassment by male work supervisors. Herman Blueford, a California state prisoner, filed suit claiming his eighth amendment rights were violated when Bishop Moses, Blueford's supervisor at the Calipatria Prison Industry Authority (PIA) laundry "would make strong sexual suggestions accompanied by demonstrative actions; would grab inmates and pull their hands towards his genitals; would grab his own genitals and refer to oral sex; would pull his pants up tightly and 'demand' anal sex; and would feign martial arts strikes towards various parts of an inmate's body, including the groin area." The district court held the defendants were entitled to qualified immunity from suit because prisoners have no well established right to be free from sexual harassment.

The appeals court affirmed. Qualified immunity is a judicially created doctrine which prevents an award of money damages against government officials who violate the constitutional rights of citizens unless the right violated was "well established" under the law in effect at the time the violation occurred. In this case the court framed Blueford's claim as his right, "as a male ...

LSC Ban on Funding Prison Litigation Enjoined

In the July, 1996, issue of PLN we reported passage of the 1996 federal budget. In addition to severe budget cuts for the Legal Services Corporation (LSC), a private non profit corporation that distributes government funds to independent legal programs around the country, Congress also imposed severe limitations on how the remaining funds could be used. Among the restrictions were that no organization receiving LSC funds could represent state, federal or county prisoners (1996 Budget Act, § 504(a)(13)); initiate or participate in a class action suit (§ 504(a)(5)). Other restrictions included the right wing wish list of: no challenges to abortion laws; no lobbying for welfare legislation; not representing immigrant aliens and much more.

The Legal Aid Society of Hawaii filed suit challenging the restrictions as violating their right to free speech and association. The district court held they had shown a likelihood of success on the merits and issued a preliminary injunction enjoining many of the LSC fund restrictions.

Of interest to PLN readers, the court enjoined the LSC from enforcing its restrictions on "Participating in any litigation on behalf of a person incarcerated in a federal, state or local prison,' 1996 Budget Act § 504(a)(16 ...

Arizona Prisoner Entitled to Kosher Diet

The court of appeals for the ninth circuit held that a district court erred when it upheld the denial of Kosher meals to Jewish prisoners in Arizona.

Kenneth Ashelman is one of 70 Jewish prisoners in the Arizona DOC. Prison officials in that state refuse to provide Jews with Kosher diets claiming it is too expensive. Ashelman filed suit claiming the denial of a Kosher diet violated his first amendment rights and the now defunct Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb.

The district court held that Kosher meals could not be prepared in prison kitchens and the cost of serving frozen Kosher meals, $5 per meal compared to 84¢ for a regular prison meal, meant Ashelman was not entitled to relief.

The appeals court reversed and remanded. The court did not apply the RFRA to this case, concluding Ashelman was entitled to relief under the more stringent first amendment standard of O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400 (1987). The court relied on its rulings in Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993) and McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987) which held ...

Sexual Abuse by Guard Nets New York Jail Prisoner $750,000

A federal district court in New York found sufficient evidence to support a finding that a guard sexually abused a county prisoner; that such acts violated due process; that the guard was not entitled to qualified immunity; that state law claims required service of notice of claim on the county ...

Rhode Island Probation Fee Ruling Reversed

In the September, 1996, issue of PLN we reported Taylor v. Rhode Island, 908 F. Supp. 92 (D RI 1995) where a district court struck down as violating the ex post facto clause and due process a state statute requiring probationers to pay a $15 monthly supervision fee, even if they were convicted prior to the law's enactment. The court of appeals for the first circuit reversed and remanded.

The appeals court held that retroactive application of the fee statute did not violate the ex post facto clause because it was a civil, rather than criminal, remedy. The appeals court relied on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989) to reach this conclusion. The court held that the $15 fee in this case was a civil charge that did not constitute punishment and was related to the purpose of supervising the probationers.

While the appeals court upheld the statute as far as the ex post facto claim was concerned, it remanded the case for further proceedings on the plaintiff's claim that the statute violates their right to procedural due process. See: Taylor v. State of Rhode Island, 101 F.3d 780 (1st ...

News in Brief

AL: On June 30, 1997, Jerrick Snell, already sentenced to 20 years in prison for cocaine possession was resentenced to life in prison after he told judge Lawson Little to perform oral sex on him when Little walked past his cell. Little ordered Snell gagged and returned to court. Lawyer David Hogg was hastily appointed to "represent" Snell and later said 'I never had a chance to talk to Mr. Snell. He was brought in gagged" with duct tape wrapped around his head and mouth several times. Neither the judge nor prosecutor would comment.

AZ: On July 15, 1997, the Arizona supreme court struck down as unconstitutional the Constitutional Defense Council, a legislatively created group whose main role had been to find ways to violate the rights of state prisoners despite federal court orders to the contrary. The court unanamously held the council violates a state constitutional requirement that only the executive branch, i.e., the attorney general, can file suit on behalf of the state. Not only was the Council unlawful, it also illegally spent tax money.

AZ: Maricopa county sheriff Joe Arpaio announced he was introducing four German shepards, at $8,000 each, with small cameras and microphones ...

New York AA Program Violates Establishment Clause

The court of appeals of New York (the highest state court) held that the establishment clause of the U.S. constitution is violated when an atheist prisoner was deprived of family visits for refusing to participate in a religious oriented Alcohol and Substance Abuse Treatment (ASAT) program. David Griffin, an atheist New York state prisoner was told by prison officials he would not be able to participate in the Family Reunion Program unless he participated in the ASAT.

Griffin attended ASAT for several months and then asked to be excused because the ASAT's religious principles conflicted with his atheist beliefs. Griffin's request and administrative grievances were all denied. Griffin filed an Article 78 petition in the supreme court of Ulster county, where it was dismissed without a hearing. The state appeals court affirmed the dismissal at Griffin v. Coughlin, 626 NYS.2d 1011, holding that despite repeated references to "god" in the Alcoholics Anonymous (AA) Twelve Steps used by the ASAT, there was no religious component to the program. In a split decision the Court of Appeals reversed and granted judgment in Griffin's favor.

The court gave an extensive and detailed discussion to the establishment clause of ...


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