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Prisoner Education Guide

Prison Legal News: March, 1997

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Volume 8, Number 3

In this issue:

  1. Making Slave Labor Fly: Boeing Goes to Prison (p 1)
  2. From the Editor (p 4)
  3. Litigant Entitled to Summary Judgment Notice (p 5)
  4. From the Editor (p 6)
  5. BOP Brutality Info Wanted (p 6)
  6. Denial of Medical Diet States Claim (p 7)
  7. A Matter of Fact (p 7)
  8. Pro Se Tips and Tactics (Injunctive Relief) (p 8)
  9. Detainee Excessive Force Jury Instructions Reversed (p 9)
  10. Media TRO Denied (p 10)
  11. Congress Bans Porn in Federal Prisons (p 11)
  12. Reach Out and Bilk Someone (p 12)
  13. Execution Conflicts with Medical Ethics (p 12)
  14. New Triad (p 13)
  15. No Remedy for State Law Violations in Washington Disciplinary Hearings (p 13)
  16. Third Circuit: PLRA Doesn't Apply to Mandamus (p 14)
  17. PLRA Overrules FRAP 24(a) (p 14)
  18. 5th Circuit: PLRA Doesn't Apply to Habeas (p 14)
  19. PLRA 'Strike' Removed (p 14)
  20. Three's Company (p 15)
  21. Strife in Pleasant Valley (p 15)
  22. Case Closed After 24 Years (p 15)
  23. Canteen Corp. Info Wanted (p 15)
  24. California Bans Media Interviews with Prisoners (p 16)
  25. PNS Suspends US Publication (p 17)
  26. Pierce County (Tacoma) Jail Suit Settled (p 18)
  27. Tent City Jail Erupts in Flames (p 19)
  28. Washington Union Sues over Prison Slave Labor (p 20)
  29. California Prison Computer Project Crashes (p 20)
  30. CDC Trying to Polish Tarnished Image (p 21)
  31. Third Annual NCSCUP Conference (p 22)
  32. Used Law Books Not Good Enough in California (p 23)
  33. Detainee Entitled to Ad-Seg Hearing (p 23)
  34. News in Brief (p 24)
  35. Ten Years Is Enough; Belgian POWs Seek Freedom (p 25)
  36. No Immunity for Kidney Transplant Denial (p 25)
  37. No Service on US Required for Bivens Claim in Work Injury Suit (p 26)

Making Slave Labor Fly: Boeing Goes to Prison

With the repeal of welfare, some political opportunists and right-wing pundits are turning their sights on questions of law and order in general and prison "reform" in particular. They are starting to push Congress to impose the same solution on prisoners as on welfare recipients: put them to work. In September, candidate Bob Dole promised that if elected president, he would issue an executive order requiring every able-bodied federal prisoner to work a 40-hour week to earn money to compensate victims. "Taking a portion of prisoners' earnings to pay their upkeep or reimburse their victims also seems appropriate to many Americans," noted the Atlanta Journal and Constitution.[1]

Knut Rostad, head of the right-wing The Enterprise Prison Institute (EPI), which boasts Edwin Meese--Ronald Reagan's ethically challenged attorney general--as chair of its national advisory board is trying to rally support for the scheme. Citing Republican pollster Frank Luntz, who helped shape the Contract with America, Rostad told a Congressional committee that "the American public believes the greatest failure of government on a national level -- other than welfare involves crime and punishment." Luntz's focus groups, Rostad went on, "reveal a negative emotional response to the prison system which is unlike ...

From the Editor

Welcome to another issue of PLN. I just finished typing this month's installment of "A Matter of Fact" (AMF), something I enjoy immensely. Since we started this feature last year, it has received mixed reviews. Readers have said it was a "waste of space," and "the most stupid column I have ever seen in print." Others, though, have given it high praise. The highest praise of all, however, came when an Arizona prisoner and PLN subscriber sent me a copy of an article he had published in a local paper.

His article was peppered with at least a half a dozen facts he had gleaned from AMF. He thanked me for helping him write the article by providing him with a steady diet of hard facts which he could incorporate into his writing.

This is exactly what I had in mind when I started the AMF column. Having taken a college course in journalism last year, it occurred to me that there are two things that distinguish good non-fiction journalism from professional journalism: facts and quotes. As editor of PLN over the years, I have read hundreds of article submissions from imprisoned writers. Many of them are written quite ...

Litigant Entitled to Summary Judgment Notice

The court of appeals for the ninth circuit has reaffirmed that a district court which transforms a motion to dismiss into a motion for summary judgment by considering matters outside the pleadings must give the opposing party proper notice. Charles Anderson is a Nevada state prisoner and a minister of the Universal Life Church. He filed suit challenging Nevada state prison regulations forbidding prisoners from leading a congregation of prisoners contending the rules violated his first amendment rights.

The defendants filed a motion to dismiss for failure to state a claim for which relief could be granted under Fed.R.Civ.P. 12(b) (6), and with their motion they attached the prison director's affidavit and a copy of the rules in question. The district court granted the motion and dismissed the case.

The appeals court held that the district court converted the motion to dismiss (which by its terms can consider only matters in the pleadings) into a motion for summary judgment. The lower court's failure to inform Anderson of the conversion and his consequent need to respond with evidence of his own warranted reversal. District courts have an obligation to notify pro se prisoner litigants of ...

From the Editor

Welcome to another issue of PLN. I just finished typing this month's installment of "A Matter of Fact" (AMF), something I enjoy immensely. Since we started this feature last year, it has received mixed reviews. Readers have said it was a "waste of space," and "the most stupid column I have ever seen in print." Others, though, have given it high praise. The highest praise of all, however, came when an Arizona prisoner and PLN subscriber sent me a copy of an article he had published in a local paper.

His article was peppered with at least a half a dozen facts he had gleaned from AMF. He thanked me for helping him write the article by providing him with a steady diet of hard facts which he could incorporate into his writing.

This is exactly what I had in mind when I started the AMF column. Having taken a college course in journalism last year, it occurred to me that there are two things that distinguish good non-fiction journalism from professional journalism: facts and quotes. As editor of PLN over the years, I have read hundreds of article submissions from imprisoned writers. Many of them are written quite ...

BOP Brutality Info Wanted

Kenneth Trentedue died at the Federal Transfer Center in Oklahoma City some time between 9:00 p.m. on August 20 and 3:00 in the morning of August 21, 1995. According to U.S. Department of Justice officials, Kenneth committed suicide. The Oklahoma State Medical Examiner, however, refuses to declare Kenneth's death a suicide. BOP officials refused to allow the Medical Examiner to examine the cell where Kenneth died. Paramedics called to the scene to collect the body were also not allowed to see the cell.

Since Kenneth's death, his surviving brother Jesse Trentedue, a Salt Lake City attorney, has been seeking an official inquiry into his brother's death. So far Amnesty International and an independent forensic investigator from Utah have investigated the incident. Both conclude that it was not a suicide. Overwhelming physical evidence indicates that Kenneth was beaten to death. Since he was in an isolation cell in the Federal Transfer Center's SHU, the only persons who had access and therefore could have been involved in Kenneth's death were BOP guards.

The case is currently under investigation by a Federal Grand Jury in Oklahoma City. According to Jesse Trentedue, the U.S ...

Denial of Medical Diet States Claim

A federal district court in New York held that a prisoner who was denied a high fiber diet after undergoing a colostomy had stated a claim requiring a trial to resolve.

John Mandala is a New York state prisoner who had the misfortune of getting sick in prison on a holiday. After being informed he would have to return later when a doctor was on duty, he returned to his cell.

Several hours later Mandala complained to prison guards that he was suffering extreme abdominal pain. The guards refused to let him put on a winter jacket or push him in a wheelchair to the prison hospital. Mandala limped to the hospital in 30 minutes while in extreme pain and cold. A prison nurse found him to be dehydrated, with no pulse and low blood pressure. Mandala was diagnosed with pneumonia and given a colostomy.

After returning to the prison he repeatedly requested a high fiber diet as ordered by the surgeon. His requests were repeatedly denied until more than a year after his surgery, when it would still be occasionally denied. Mandala filed suit contending that his pre-operative treatment and delay in providing a medical diet violated his eighth ...

A Matter of Fact

The Maryland State Police Drug Interdiction Squad, an all white unit, has been warned by senior state police officials to be "impartial" after the Associated Press reported that 75 percent of the drivers stopped and searched on Interstate-95 are black.

More than 90 percent of police officers in the U.S. are men, and more than 80 percent of police officers are white. The number of women at executive levels in law enforcement is estimated to be under two percent.

According to the NY City police department, its officers shot 16 people in 1993 who were "armed" with toy guns.

The National Association of Police Chiefs reported that the number of police who died in the line of duty dropped to a 30-year low of 118 in 1996.

A 1996 study conducted by Buffalo State University of New York, found that police officers are eight times more likely to commit suicide than to be killed in a homicide (on or off duty) and three times more likely to commit suicide than to die in job-related accidents.

A fact-checking intern for The Nation called the National Center for Health Statistics to learn he number of murders committed in the U.S ...

Pro Se Tips and Tactics (Injunctive Relief)

In many cases in which a prisoner or group of prisoners is suing over bad prison conditions or practices, the prisoners want an injunction, that is, an order to require state officials to stop violating constitutional rights. This column briefly discusses what "injunctive relief" is, the basic standards for getting it, and some special issues regarding injunctions that can come up in prison cases. I cannot cover every aspect of this large and complex subject or provide specific advice for your case, but will simply highlight some of the issues you might face.

In this column, as always, I assume that you have a case filed under 42 U.S.C. Section 1983 in federal district court, and so I discuss the federal standards and cases. If you are in state court, the standards and law could be very different. Also, I discuss here only injunctions ordered by a judge after a trial won by the plaintiff or plaintiffs. The material in this column does not apply to consent decrees or other kinds of injunctions put in place after settlement is reached between the parties. Consent orders involve different issues and in some cases different standards, and they will be ...

Detainee Excessive Force Jury Instructions Reversed

The court of appeals for the seventh circuit held that a district court erred when it instructed a jury on jail guards' good faith immunity defense. Anyone bringing an excessive use of force involving pretrial detainees to trial will find this case helpful. In 1988 Jackie Wilson was detained in the Cook County (Chicago) jail where he was attacked without provocation by jail guard James Williams on two separate occasions on the same day. Williams denied starting the fight but claimed any force he used was justified after Wilson atacked him. The district court granted William's motion for summary judgment but this was reversed on appeal at Wilson v. Williams, 997 F.2d 348 (7th Cir. 1993). On remand a jury trial was held and the verdict was in William's favor. Several witnesses testified supporting Wilson's claim that he was attacked and beaten without provocation while Williams and several guards testified force was used only after Wilson attacked Williams.

The appeals court noted that review of jury instructions on appeal is limited. A reviewing court must determine if the instructions, as a whole, were sufficient to accurately inform the jury of the applicable law. A jury verdict ...

Media TRO Denied

A federal district court in Missouri held that a television station and prisoners had virtually no likelihood of success in challenging a prison system's ban on video taped interviews. A Missouri TV station began filming interviews with prisoners throughout MO prisons. After initially granting the interview requests the MO DOC imposed a complete ban on all video taped prisoner interviews. The TV station and prisoners filed suit and sought a Temporary Restraining Order (TRO) enjoining the ban until the matter was litigated. The district court denied the TRO.

The court gave a summary of the law applicable to media access to prisoners and noted that Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800 (1974) and Saxbe v. Washington Post, 417 U.S. 843, 94 S.Ct. 2811 (1974) both held that prisoners have no right of access to the media and the media has no right to enter prisons.

The court noted that there was no indication in this case that the ban on media visits was done to suppress or regulate speech because of its content. Supporting this was the fact that a prisoner expressing a desire to expose corruption within the MO DOC sought ...

Congress Bans Porn in Federal Prisons

With little notice and no fanfare on September 30, 1996, president Clinton signed into law the mammoth Omnibus Consolidated Appropriations Bill, PL 104-208, which is the federal government's budget. Section 614 of the law states: "None of the funds made available in this Act to the federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the federal official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity." This law is being called the "Ensign Amendment" after its author Republican congressman John Ensign of Nevada.

The Bureau of Prisons (BOP) promptly promulgated new censorship rules at 61 F.R. 57568 to modify 28 C.F.R. § 540. The amended mail censorship rules duly state that no commercially published information or material will be made available to prisoners if it features nudity or is sexually explicit. The BOP defines nudity as "a pictorial depiction where genitalia or female breasts are exposed."

The real intent of the law change is seen in the memorandums distributed by BOP wardens to their captive populations as part ...

Reach Out and Bilk Someone

Florida DOC officials were found in 1995 to have fraudulently awarded a contract to North American Intelicom (NAI) to provide "inmate telephone services" to 35 Florida state prisons. Rival communications company MCI filed a protest because they were not awarded the contract, even though their bid scored higher than NAI's in the DOC bid ranking system. [See: "Phone Graft in Florida," PLN Vol. 7 No. 6] An investigation ensued. Senior DOC officials were implicated in a bid rigging scheme, and the contract was then awarded to MCI in November, 1995.

A later investigation by the Florida Public Services Commission (PSC) revealed that during the period in which NAI was providing telephone services, the company routinely over billed people who accepted phone calls from prisoners using NAI phones. NAI subsequently agreed to refund $400,000 to consumers who were bilked by the overcharges. [See: "Florida Utilities Commission Refunds Phone Kickbacks," PLN v.7 #9].

Less than a year after MCI began providing "Inmate telephone services," the company was under investigation for overcharging consumers, imposing a $3 surcharge on collect calls placed by prisoners -- triple what state regulations then allowed.

Kathy Pounds, MCI's director of public policy, Southern Region, says ...

Execution Conflicts with Medical Ethics

David Nelson, a 51-year-old convicted murderer, was scheduled for execution in Alabama on December 8, 1996. A last-minute stay by the Alabama supreme court delayed the execution so that Nelson could donate a kidney to his brother, Louis Nelson, who lost a leg to diabetes and whose kidneys no longer function.

The court granted a three-week stay to allow doctors to evaluate the viability of the kidney transplant. But doctors at Vanderbilt Transplant Center, in Nashville, who are supposed to conduct the evaluation are troubled over an ethical question posed by such a transplant.

"Why do you allow someone to recover and be completely healthy before killing them?" said Dr. J. Harold Halderman, medical director of the transplant center.

The idea of removing an organ from the condemned man and then helping him to fully recover from the surgery only to have him then put to death was unsettling to physicians, who also wonder if Nelson is a truly "voluntary" donor.

"This sounds to me to be distasteful, and I'm not sure what we will do here," Halderman said.

The surgery would be performed by Vanderbilt doctors at a nearby veterans hospital where the infirm brother is hospitalized. However ...

New Triad

Some death row prisoners who have been executed attain celebrity. We have all heard about the Rosenbergs, Carryl Chessman's name comes to mind, Gary Gillmore also.

But do you know Joseph Paul Jernigan? No? Come on, if I tell you CD-Rom disk ... Internet ... that's it - you've got it! At 12:15 am on August 5, 1993, in Huntsville, Texas, someone pushed a button, his body was injected with lethal chemicals, and the state of Texas took his life.

Seven hours after his death he was X-rayed, then frozen, embedded in gelatin and sliced into thin cross sections. So after five months of slicing, Paul Jernigan became 1,871 human slices. Each thin cross-section was photographed and digitized. His body is now immortalized as the "Visible Human Project." $1.4 million worth of human project.

The project needed a good "subject" in order for the "product" (his digitized remains) to sell well. So it was mandatory to obtain a prime quality human body - not an old one, not too deteriorated, no death caused by traumatic injury. Paul Jernigan was just the ticket. As do many other convicts, Paul exercised and lifted weights so he was well developed. Real ...

No Remedy for State Law Violations in Washington Disciplinary Hearings

The Washington state court of appeals for Division I held that prisoners challenging a disciplinary hearing must show actual and substantial prejudice before they are entitled to relief under a Personal Restraint Petition (PRP). In In Re Cashaw, 123 Wn.2d 138 (1994), [PLN, Vol. 5, No. 5] and In Re Shepard, 127 Wn.2d 138 (1995), [PLN, Vol. 7, No. 2] the Washington state supreme court held that when a prisoner challenges a parole hearing violation he need not show "actual and substantial prejudice" in order to prevail on his PRP. Instead, the petitioner could prevail if he showed that the parole board had violated its own rules and regulations. When we reported those rulings at the time in PLN we noted that their main usefulness would probably be in prison disciplinary hearings. This ruling indicates otherwise.

Two Clallam Bay prisoners, Lonnie Burton and Alonzo Warren, were infracted for disciplinary violations and found guilty at disciplinary hearings. The sanctions included the loss of good time. Both prisoners filed PRP's challenging the hearing result. The key issue decided by the appeals court in these consolidated cases was whether Cashaw applied to prison disciplinary hearings. "We conclude that the Supreme ...

Third Circuit: PLRA Doesn't Apply to Mandamus

The court of appeals for the third circuit held that the filing fee provisions of the Prison Litigation Reform Act (PLRA) do not apply to writs of mandamus. Ronald Madden, a Tennessee state prisoner, filed a habeas corpus petition challenging his extradition from Pennsylvania to Tennessee. After waiting four months for the district court to rule on his objections to the magistrate's report and recommendation, Madden filed a writ of mandamus asking the third circuit to order the district court to rule on his objections.

The third circuit held that the filing fee provisions of the PLRA do not apply to writs of mandamus. The court held it would look at the substance, rather than the label, of such petitions to determine if they are in fact writs of mandamus. If the court determines that a litigant is trying to avoid the fee provisions of the PLRA by labeling his motion or appeal as a writ of mandamus then the filing fees will be imposed.

Readers should note that the court in this case held that the PLRA does not apply to writs of mandamus in any cases, civil or criminal. By contrast, the other circuits to consider this ...

PLRA Overrules FRAP 24(a)

The court of appeals for the fifth circuit held that the PLRA's filing fee provisions supersede Federal Rule of Appellate Procedure (FRAP) 24(a). Ira Jackson, a Texas state prisoner filed suit claiming prison officials were deliberately indifferent to his serious medical needs. The district court granted Jackson leave to proceed In Forma Pauperis (IFP), without paying the filing fees, but later dismissed the suit as frivolous without revoking Jackson's IFP status. FRAP 24(a) allows parties to proceed on appeal with IFP status as long as the district court did not revoke the IFP status. Prior to the case's dismissal the PLRA was enacted which requires that prisoner litigants pay the filing fee in all suits and appeals, even if they are granted IFP status. [See: PLN, July and November, 1996.]

The court discussed congress's ability to promulgate, amend and repeal the Federal Rules of Civil Procedure, FRAP and Rules of Evidence. The court noted that the PLRA does not mention FRAP 24(a) by name even though both govern IFP appeals. "To the extent that the Rules Enabling Act (as expressed in Rule 24(a)) actually conflicts with the PLRA, we hold that the ...

5th Circuit: PLRA Doesn't Apply to Habeas

Joining the second, third and seventh circuits the court of appeals for the fifth circuit held that the filing fee provisions of the PLRA do not apply to habeas corpus actions. Ralph Cole, a federal prisoner, sought permission to appeal the denial of his habeas corpus petition without payment of the filing fee. The appeals court granted Cole in forma pauperis status, holding that the PLRA is not applicable to 28 U.S.C. § 2255 habeas corpus petitions. It concurred with the other circuits that have reached this conclusion. See: United States v. Cole, 101 F.3d 1076 (5th Cir. 1996).

PLRA 'Strike' Removed

A federal district court in Maryland issued an order removing a PLRA "strike" against a prisoner litigant. The Prison Litigation Reform Act (PLRA) added section (g) to 28 U.S.C. § 1915. The new section states that whenever a prisoner has had three suits dismissed as frivolous or for failing to state a claim that prisoner will be prevented from filing future suits unless they pre-pay the entire filing fees. Robert Dalvin, a Maryland state prisoner, filed suit after the prison librarian refused to provide him with a copy of the local federal court's standing order on prison litigation. The court dismissed the suit as frivolous and instructed the court clerk to enter a notation in its docketing system indicating that the dismissal was Dalvin's first "strike" for PLRA purposes.

Dalvin filed a motion for reconsideration asking that the dismissal not count as a "strike" for PLRA purposes. The court agreed and ordered the strike removed. The court found that Dalvin's suit was "legally misguided" but undertaken in good faith. The court noted that the PLRA was silent about any exceptions to its blanket three strikes rule but held that under Fed.R.Civ.P. 60(b ...

Three's Company

We [at the Washington Correction Center for Women] now have three women to a room -- in a space too small for two women. They simply moved in a top bunk on one side of the room. The number of women here has increased by 20 percent (from 500-623) since I arrived last year, but we have actually lost 200 beds due to the construction [renovation] going on.

The stress level and irritation level is very high. Also, due to the third bunk, the guards have a lot of trouble "seeing flesh" during the 12:00 a.m., 3:00 a.m., and 6:00 a.m. counts, so we are all being sleep deprived almost every night.

L.W., WCCW

Strife in Pleasant Valley

In August and September of 1996, Pleasant Valley State Prison (PVSP, in California) had several incidents resulting in shots fired at unarmed prisoners. Three incidents on C yard with at least one serious bullet wound to a black prisoner.

There are four level three yards and a level one yard here at PVSP and all have had serious incidents and shots fired with resulting lockdowns and mass searches. The Fresno Bee has covered unrest, fights and shootings at Avenal, Corcoran, Tehachapi, Mule Creek and New Folsom, but seems to not get the "news" from PVSP. Thought you would be interested.

N.H., PVSP, CA

Case Closed After 24 Years

by Ronald Del Raine, Leavenworth, KS

[Editor's Note: This is the oldest running prison case that PLN is aware of. Talk about frivolous litigation?! How much money did the government spend dragging this through the courts for more than two decades?]

In November 1972, I mailed my first Complaint ...

Canteen Corp. Info Wanted

The Canteen Corporation of North Carolina has a five-year contract with Kansas to provide food services state-wide. After mere months in operation, Canteen Corp. has caused trouble by starving Kansas prisoners and serving shit for food. [See: "Un-Happy Meals in Kansas," PLN Vol.7 No.9.]

In an unexpected mass showing of unity, prisoners in many Kansas prisons held demonstrations for two weeks in October, 1996. Because of the lockdown it has been hard to get news and details of what all has occurred state-wide are sketchy.

I have heard that the governor has gotten into the act. He is calming the public's fears over the disturbances in the prisons and playing politics by calling for an investigation. I'm sure it will be the prisoners who are investigated and not Canteen Corp., the cause of the problems.

Would you ask your readers to send me any information they have on Canteen Corp. of North Carolina? Lawsuits, problems, termination of contracts, history and present situation involving their operations in other states would all be helpful. Please reply to: Anthony Palacioz, 7425 NE Silver Road, Topeka, KS 66617.

California Bans Media Interviews with Prisoners

California Governor Pete Wilson issued an executive order banning face to face media interviews with prisoners. The ban comes at a time when most civil rights for the state's 142,000 prisoners have been taken and violence is on the rise in the world's largest prison system. At the obligatory public hearing held at the Department of Corrections, representatives of the media and public strongly opposed the proposed new policies. In its public notice for that hearing, the Department claimed the ban was necessary to prevent individual prisoners from becoming celebrities and gaining access to contraband.

Saying that prisons represent "the most expansionist sector" of state spending, Terry Francke, Executive Director of the California First Amendment Coalition, said, "the individual stories and accounts that only inmates can provide" make up a critical component in determining how smoothly the state's prison system is run. For some stories about prison life and administration, Francke continued, "there is no substitute for the opportunity to talk directly and candidly with specific individuals who either know the facts or can point to those who do." When prison guards boiled a mentally ill prisoner alive at Pelican Bay and beat, kicked and shot ...

PNS Suspends US Publication

It is with deep regret that Prison News Service (PNS) is announcing that we are pulling back from the American side of our work. The paper will continue as is, but with a primarily Canadian focus. We will also be cutting the number of copies we send into U.S. prisons by 90 percent. We cannot keep up with the massive volume of mail we get from American prisoners, nor can we continue to pay for the more than 3,000 free subs that we were sending across the border.

We want to work with our friends and comrades in the U.S. to try to salvage as much as possible from the American side of our work. We don't know what form this might take. But if prisoners have any ideas as to how this might come about, write to Raze the Walls, Box 22774, Seattle, WA 98122-0774. We will continue to send PNS to American prisoners who have sent money or stamps. Prisoner subs will be $3 or 10 stamps. Regular subs will remain $10 for five issues.

Please pass the word along to anyone wondering what has happened to PNS. We will not be responding to ...

Pierce County (Tacoma) Jail Suit Settled

In the February, 1995, issue of PLN we reported the filing of Herrera v. Pierce County, a class action suit challenging overcrowding and various other unconstitutional conditions at the Pierce County jail in Tacoma, Washington. The suit was settled in mid 1996 in three separate stipulated orders. The settlement results in significant gains for Tacoma jail detainees.

Crowding: The first stipulated order, which provides for enforcement as a preliminary injunction, sets strict population limits on the number of detainees that can be held in the existing jail. The settlement requires the closing, by July 1, 1996, of a temporary jail erected in a local National Guard armory, and limits the population in the main county jail to no more than 772 prisoners. In the event the jail population exceeds that number due to circumstances beyond the defendants' control, it must be reduced by the next business day. "Defendants shall be in violation of this order whenever defendants violate the conditions set forth in paragraph 3.4, or whenever the population exceeds unacceptable numbers for more than 48 hours."

Beds: The settlement requires that any jail beds installed must provide safety to the occupant, including, but not limited, to being suicide ...

Tent City Jail Erupts in Flames

Most PLN readers are aware of Maricopa County Sheriff Joe Arpaio's reputation as "the meanest sheriff in America," infamous for his tent-city jail, stripped of amenities, sweltering in the Arizona sun under a large neon "Vacancy" sign. Arpaio is unabashedly proud of his reputation for being tough on prisoners. He's an inveterate PR hound, running his tent-jail like a three ring media circus, forcing his prisoners to wear pink underwear and eat green bologna. As a result, he has garnered an incredible amount of national media attention.

He has also drawn the attention of the U.S. Justice Department, which has been conducting an ongoing investigation into charges of civil rights violations at the three Maricopa County Jails he supervises. Several excessive force civil suits by individual prisoners are pending against Arpaio, as well as at least one wrongful death suit.

On Sunday, November 17, 1995, Joe's tent-jail erupted in violence and flames. The three hour rebellion left three deputies and half a dozen jail detainees with minor injuries and was finally quelled by Arizona National Guard troops in riot gear and gas masks.

Arpaio told reporters the uprising was sparked by one detainee assaulting another. Dozens ...

Washington Union Sues over Prison Slave Labor

On August 29, 1996, International Brotherhood of Electrical Workers (IBEW) local 970 filed suit in Pierce County (Tacoma) superior court over the use of prison labor to expand the Cedar Creek Correctional Center. The prisoners are paid between 50¢ and $1.40 an hour to install electrical wiring. Union members earn $23.56 an hour plus about $8.50 in benefits to perform the same labor. IBEW president Ed Rheaume repeated what PLN has been saying for years: "A guy is going to have to go to prison to get a job. What they want to do is have prison labor build all the prisons in the state."

Guy Sternal, the Tacoma attorney representing the union, estimated the suit will cost $100,000 in litigation fees. Sternal also stated that once guard costs and efficiency are factored in, prison slave labor costs more than IBEW electricians. Tom Young, the attorney general defending the state in the case said slave labor is cheaper. PLN inquiries to Mr. Sternal for more details on the suit have gone unanswered. PLN is unaware of any other lawsuits filed by union workers over the use of prison slave labor. We ask readers to keep us ...

California Prison Computer Project Crashes

With over 144,000 prisoners, tens of thousands of employees, some thirty prisons and a multi-billion dollar budget, the California Department of Corrections just rejected design plans for a mammoth computer project to automate its antiquated record keeping system. CDC officials suspended a $2 million payment to TRW Inc., the prime contractor on the $96 million computer project, pending further negotiations.

TRW officials blame CDC staff for delays and changes in plans that they claim will add $12 million more to the cost of the project and would extend eventual installation by at least 13 months. CDC Director James Gomez said, "To date the state has not been presented with an acceptable reason for the cost increase or all the time delay."

The computerization project was approved in 1992 as the first of a five part plan intended to automate the CDC's records and incorporate all their existing computer operations. Presently, records for prisoners are kept in paper files.

There is some skepticism that, even if the computer system is finally installed and operational, CDC staff will ever be able to competently use it. "The average citizen is not skilled in the use of computers," said a computer repair ...

CDC Trying to Polish Tarnished Image

The editors of PLN receive newspaper clippings from all over the U.S. We recently received articles clipped from about a dozen California newspapers. The articles appeared in the same week and all were strikingly similar. They were about how California Department of Corrections (CDC) prison guards are facing stronger disciplinary measures. Each of the numerous articles contained the same statistics, and many of them contained the same word-for-word quotes of various prison officials. This is a signature of a formal, well-orchestrated "public relations" campaign.

Public relations is a huge business in the U.S. (by some estimates raking in over $7 billion a year in fees), and the techniques of PR have been honed into something resembling more of a science than an art. One of those techniques, dubbed crisis management, was evidently used to disseminate the nearly identical articles in over a dozen California newspapers.

The CDC has been hit in recent years with an increase in bad publicity, from the numerous articles about California guards fatally shooting prisoners, and the FBI investigation of those shootings; the shocking guard brutality highlighted in the Madrid v. Gomez ruling; to more recent accounts of Calipatria State Prison guards beating chained ...

Third Annual NCSCUP Conference

The National Campaign to Stop Control Unit Prisons (NCSCUP) held its third annual conference on the weekend of November 8-10 (1996) at the Puerto Rican Cultural Center in Chicago. More than fifty members of NCSCUP attended. The purpose of the conference was to strategize and brainstorm about what measures should be taken to halt the rapid expansion of control unit prisons, and shut down the units that already exist.

The conference began with an assessment of the previous year's events. One of NCSCUP's primary projects was the coordination of six different "People's Hearings" on control unit prisons. The hearings took place in Philadelphia, Denver, Cleveland, Youngstown, San Francisco and Chicago, and all were reportedly a success. Testimony from control unit (CU) prisoners was given--often read by their friends or loved onesand prisoners' rights activists gave presentations on such topics as: the political purpose of control unit prisons, control unit proliferation, political prisoners, the prison-industrial complex, the genocidal effects of the war on drugs, and the increasing incarceration rates of women. Also reported on were actions such as the very successful demonstrations against the Wabash Valley and Westville control units in Indiana.

Discussed at length at the conference ...

Used Law Books Not Good Enough in California

The California Department of Corrections bought used law books from National Law Resources of Chicago for its High Desert State Prison last year at a savings to taxpayers of $69,000. But, the CDC claimed some of the used books contained "paper clips, staples and other items that could be fashioned into weapons" and abandoned their short-lived experiment in saving money angering lawmakers and setting off a lobbying war between used and new law book sellers.

"It's much more expensive to buy new books than used books," said California Senator Dan Boatwright, D-Concord. "I think the public is really upset over prisoners being treated like they were entitled to Cadillacs instead of Fords." Boatwright said other state prison systems and the federal prison system purchase used law books.

The nation's largest supplier of used law books, National Law, accused the Corrections Department of bowing to pressure from lobbyist Bob Wilson, a former San Diego legislator who represents new law book publisher Bancroft Whitney.

"The reason (the CDC won't buy used law books) has to do with someone wanting to do business with the publisher," said Rodger Mitchell, president of National Law. "Anyone can speculate what it is ...

Detainee Entitled to Ad-Seg Hearing

A federal district court in Texas held that a pretrial detainee was entitled to a hearing before being placed in segregation. Robert Poole was a pretrial detainee in the Jefferson County jail. This ruling concerns the denial of the defendant's motion for summary judgment on Poole's claim that he was placed in administrative segregation (ad seg) without a hearing.

Poole was allegedly placed in ad seg because of prior escape attempts. He was not provided with any type of a hearing before or after. The defendants claimed that under Sandin v. Conner, 115 S.Ct. 2293 (1995) pretrial detainees no longer have a right to procedural due process in segregation hearings.

The court rejected this claim. In analyzing Sandin the court held it did not in any way alter the applicable law concerning pretrial detainees. Pretrial detainees cannot be punished at all and jail conditions and rules are analyzed under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979). Sandin "is the law for those convicted not necessarily for those detained."

"To date, the defendants have provided no summary judgment evidence which would indicate the plaintiff either received a pre-segregation hearing or that such a ...

News in Brief

Albania: On January 26, 1997, two prisoners were killed in a riot at the Bardhor jail as part of a wave of protests that swept the small Balkan nation as pyramid savings schemes collapsed. At the jail prisoners set fire to their cells and battled guards and police.

CA: On December 12, 1996, Joseph Lewis was sentenced to 26 years to life as a three strikes offender for possessing 3 ounces of marijuana at the Folsom State Prison. Lewis was already serving a life sentence for murder when prison guards found the marijuana in his pants after a visit and Lewis confessed it was his. The sentences will run consecutively.

CA: On November 18, 1996, Los Angeles county agreed to pay $30,000 to Candice Sue Penn to settle her lawsuit against the county. Penn sued after being arrested and then being mistakenly jailed as a man and forced to undress before male prisoners and deputies. The sheriff's department claimed it had trouble distinguishing between male and female prisoners. Penn's lawyer ridiculed this claim by noting that Penn was not a transsexual and is clearly a woman.

Canada: South African legislator Ahmed Kathrada was denied a tourist visa ...

Ten Years Is Enough; Belgian POWs Seek Freedom

In 1984 and 1985 the Communist Fighting Cells (CCC) attacked imperialist and capitalist interests in Belgium. Among the targets attacked were banks (including the Bank of America), NATO headquarters, the federation of big employers, energy companies, etc. On December 16, 1985, Pascale Vandegeerde, Bertrand Sassoye, Pierre Carette and Didier Chevolet were arrested as members of the CCC and accused of carrying out the attacks. From the time of their arrest the prisoners were subjected to extraordinarily harsh prison conditions, including three years of total isolation, which was denounced at the time by Amnesty International. After two hunger strikes they obtained almost normal prison conditions comparable to those enjoyed by other prisoners.

In October, 1988, the four CCC members were sentenced to life in prison following a rigged and scandalous trial. For example, Pascale and Didier were sentenced for actions that took place before they even joined the organization!

Whatever one's views of the prisoners' actions and ideas, it is readily apparent that they were convicted and sentenced because of their politics. Their actions were never motivated by personal gain or self-interest but out of working class interest and solidarity. Under Belgian law prisoners are eligible for release after serving ...

No Immunity for Kidney Transplant Denial

The court of appeals for the ninth circuit held it lacked jurisdiction to hear prison doctors' interlocutory appeal that they were entitled to qualified immunity for denying a prisoner on dialysis a kidney transplant. Raymond Jackson, a California state prisoner, filed suit claiming prison doctors violated his eighth amendment rights when they refused him a kidney transplant. The doctors moved for summary judgment claiming they were entitled to qualified immunity. The district court denied the motion and the doctors appealed.

The appeals court disagreed with the notion that there was no clearly established law requiring doctors to provide a kidney transplant to a prisoner on dialysis. "It is settled law that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment.... Prison officials are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment.... For a right to be clearly established it is not necessary that the very action in question have previously been held unlawful.... To define the law in question too narrowly would be to allow the defendants to 'define away all potential claims.'"

Prisoners fail to state a claim for deliberate indifference if a defendant bases his medical judgment ...

No Service on US Required for Bivens Claim in Work Injury Suit

The court of appeals for the ninth circuit held that plaintiffs suing federal officials solely in their individual capacities do not need to serve the complaint on the United States. John Vaccaro is a federal prisoner with a congenital spine deformity. Despite knowledge of his disability, prison officials ordered him to perform work tasks beyond his ability which resulted in extensive back injuries. After numerous delays Vaccaro received spinal surgery. Then he suffered a heart attack and underwent triple bypass coronary surgery but was denied follow-up medical exams and prescribed medicine. Vaccaro filed suit claiming that his eighth amendment rights were violated. Vaccaro sued various prison guards and doctors. The suit was served on the defendants but not on the United States. The United States filed an answer on behalf of the defendants claiming a lack of personal jurisdiction because Vaccaro had not served the United States as a defendant. The district court dismissed the complaint for lack of personal jurisdiction.

The appeals court reviewed the dismissal de novo. Vaccaro sought only money damages from the defendants pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388, 91 S.Ct. 1999 (1971), the ...

 

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