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Prison Legal News: October, 1997

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

Editorial

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...