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Prisoner Education Guide

Prison Legal News: May, 1997

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Volume 8, Number 5

In this issue:

  1. US Supreme Court: Oklahoma Pre-Parole Program Requires Hearing Before Removal (p 1)
  2. California PIA Employees Lose Minimum Wage Suit (p 3)
  3. Consent Decrees Create Enforceable Right (p 5)
  4. Notes from the Unrepenitentiary: " Schooling the generations in the politics of prison" (p 6)
  5. Matter of Fact (p 7)
  6. Sixth Circuit Defines Legal Mail (p 7)
  7. PLRA Codifies Injunction Standards in Conditions Case (p 8)
  8. PLRA Applied to Released Prisoners (p 9)
  9. Indiana Muslim Consent Decree Vacated under PLRA (p 9)
  10. PLRA Allows Sua Sponte Dismissal (p 9)
  11. PLRA Fee Requirements Not Applicable to Pending Suits (p 10)
  12. PLRA Confuses Courts; Applies Only to Prisoners (p 10)
  13. Ninth Circuit Affirms BOP Sentence Reductions (p 11)
  14. Drug Policy as Social Control (p 12)
  15. Virginia Warden Stabbed (p 13)
  16. Should Prisoners Have the Right to Strike? Some Union Leaders Say "Yes!" (p 14)
  17. Texas Prisoners Get Second-Rate Doctors (p 15)
  18. New Jersey Prison Guard Recruiting for KKK (p 15)
  19. Update on Washington Money Seizure Suit (p 16)
  20. Democracy, Racism and Disenfranchisement (p 17)
  21. Reviews (p 17)
  22. Illinois DOC Phone System Upheld (p 18)
  23. Moors Settle with Indiana DOC (p 18)
  24. Seventh Circuit Questions ADA Applicability to Prisons (p 19)
  25. Disciplinary Finding Must Be Supported by Reliable Evidence (p 20)
  26. Qualified Immunity for Infraction Suit (p 20)
  27. No Care for STD Violates Eighth Amendment (p 21)
  28. $1.65 Million Jury Verdict in Cell Assignment Case Affirmed (p 22)
  29. Racial Rioting Erupts in L.A. Jail (p 22)
  30. Mental Unhealth and Prisons (p 23)
  31. Guard Tower Scam (p 23)
  32. Do the Math (p 23)
  33. News in Brief (p 24)
  34. RFRA Allows Redaction of Religious Publication (p 25)
  35. TRO Granted in DC Smoking Suit (p 26)
  36. Washington EFV Ban Upheld (p 26)
  37. $75,000 Jury Verdict in Prisoner Attack Affirmed (p 26)

US Supreme Court: Oklahoma Pre-Parole Program Requires Hearing Before Removal

by Paul Wright

On March 18, 1997, justice Clarence Thomas released a ruling for a unanimous U.S. supreme court holding that an Oklahoma "pre-parole" program designed to relieve prison overcrowding was sufficiently similar to parole to require a due process hearing before participants could be removed from the program. In the April, 1996, issue of PLN we reported Young v. Harper, 64 F.3d 563 (10th Cir. 1995) where the tenth circuit court of appeals held that the Oklahoma pre-parole conditional supervision program (program) created a due process liberty interest mandating a hearing before a prisoner could be removed from it. The state appealed and the supreme court affirmed the lower court ruling.

Ernest Harper was in the program, which is a more restrictive form of parole that allows prisoners to live and work in the community while reporting to a parole officer. The preparole program kicked in any time the Oklahoma prison system exceeded 95% of its capacity. Prisoners were eligible for the program after serving 15% of their sentence and eligible for actual parole after serving one third of their sentence. Program eligibility was determined by the state's Pardon and Parole Board while parole itself was ...

California PIA Employees Lose Minimum Wage Suit

The court of appeals for the ninth circuit affirmed dismissal of a suit by California Prison Industrial Authority (PIA) prisoners who filed suit claiming they were entitled to the minimum wage under the Federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201. The class action suit was filed by PIA prisoners who were paid between 30 to 95 cents an hour. PIA assignments are considered voluntary and the prisoners claimed they were entitled to the minimum wage as they should be considered "employees" for FLSA standards. In the July, 1994, issue of PLN we reported the filing of the suit. The district court dismissed the suit holding prisoners employed in PIA jobs were not "employees" for FLSA purposes.

California Penal Code § 2700 requires all able bodied state prisoners to work each and every day of their imprisonment under terms prescribed by the California DOC (CDC). The PIA was created by the California legislature in 1982 because the previous prison industries program it replaced had failed to provide prisoners with meaningful jobs, offset the cost of prison operations and reduce prisoner idleness. [Editor's Note: There is no reason to believe the PIA has achieved any of these goals ...

Consent Decrees Create Enforceable Right

A federal district court in South Carolina held that a consent decree created an enforceable due process right and a prisoner's § 1983 claim for violation of the consent decree was not barred by Sandin v. Conner, 115 S.Ct. 2293 (1995). As court's explore and define the full impact that Sandin has had on the due process rights of prisoners this is an important ruling. Bobby Fitts, a South Carolina prisoner, got into an argument with prison guards after they searched his cell. After a guard spit on him, Fitts demanded to see a supervisor and instead was taken to a segregation cell and chained to a metal bunk ("four point restraints"). In the process Fitts was punched, thrown to the ground and sat on by guards. Fitts was four-pointed for more than four hours. Fitts filed suit under 42 U.S.C. § 1983 claiming his due process, and eighth amendment rights were violated. The defendants moved for summary judgment which the court granted.

Fitts' due process claim was based on the fact that in restraining him the defendants had violated the Nelson Consent Decree, a decree entered into by the South Carolina DOC to settle a class ...

Notes from the Unrepenitentiary: " Schooling the generations in the politics of prison"

Twentieth century prison conditions are like the conditions of slavery. Plantation owners prevented rebellion by denying the humanity of the Africans they enslaved; prisoners are dehumanized in San Quentin, Parchman Farm, and prisons all over the u.s. The outlawing of African religious rituals during slavery parallels the denial of Islamic and Native American religious observances for years in Attica and other prisons. The use of informants and spies among some slightly-more-privileged sectors of slaves is like the use of snitches in controlling prison populations. Excessively harsh punishments were meted out to leaders of slave resistance, just as political prisoners are singled out for disproportionate sentences and particular forms of isolation in state and federal prisons.

There is a continuity from slavery to the prison system in implementing genocide against oppressed populations in this country. When expanding u.s. capitalism founded its wealth on chattel slavery the die was cast -- and it rolls on today in a prison system that swallows up huge portions of the Black, Latino, and Native American population, and serves to repress, control, and destroy the social fabric of the oppressed communities outside the prison walls.

This theme has been discussed and analyzed by many leaders ...

Matter of Fact

[Editor's Note: all of this month's facts were gleaned from one source: "Intended and Unintended Consequences: State Racial Disparities in Imprisonment," a January, 1997, report of The Sentencing Project. Copies of this 25-page report are available for $8 from: The Sentencing Project; 918 F St., NW, Suite 501; Washington DC, 20004.]

The incarceration rate for whites in the District of Columbia is 84 per 100,000 population; for blacks it is 2,966. If you are black and live in Washington D.C. you are 35 times more likely to be incarcerated than the typical white resident.

In the years 1988-94 state and federal prisons experienced a 29.8 percent increase in the number of prisoners incarcerated for property offenses. For violent offenders, the increase was 51.9 percent. The largest growth segment was drug offenders, which showed a whopping 155.5 percent increase in imprisonment. For white drug offenders, however, the increase in imprisonment in a similar period (1986-91) was only 110.6 percent. The increase in imprisonment of black drug offenders in this period was a staggering 465.5 percent.

In 1994 Justice Department figures reveal that 6.75 percent of all adult black males were ...

Sixth Circuit Defines Legal Mail

The court of appeals for the sixth circuit has held that "legal mail" encompasses legal materials delivered to prisoners by any means, not just via the postal system. As such, the legal materials cannot be inspected outside the prisoner addressee's presence. Temujin Kensu is a Michigan state prisoner. A visitor delivered three boxes of legal materials from Kensu's attorney addressed to him at the prison. The boxes were clearly marked as legal mail and contained legal materials, despite which they were opened and read outside of Kensu's presence by prison guards. On a separate occasion Kensu was denied access to a cassette tape sent to him by his lawyer containing a witness statement relevant to his criminal trial. Kensu filed suit claiming these actions violated his right of access to the courts. The district court granted summary judgment and dismissed the case. The court of appeals affirmed in part, vacated in part and remanded for further proceedings.

The only claim reversed on appeal was that involving the boxes of legal materials. The court held that summary judgment was improperly granted. "Merely because the materials were not delivered by U.S. mail does not render those packages incapable ...

PLRA Codifies Injunction Standards in Conditions Case

In the December, 1995, issue of PLN we reported Smith v. Arkansas DOC, 877 F. Supp. 1296 (ED AR 1995) in which the district court ordered increased staffing levels in open bay barracks prisons in Arkansas. The defendants appealed and the eighth circuit court of appeals affirmed in part, reversed in part and remanded. The court gave a detailed discussion on the standards for granting injunctions in prison conditions of confinement litigation and class action suits. The court held that the Prison Litigation Reform Act (PLRA) merely codified standards for granting injunctions and that prisoners need not file administrative grievances in conditions of confinement cases where doing so would be futile.

Prisoners in Arkansas are housed largely in open prison barracks which are extremely unsafe and have been the subject of extensive litigation over the past thirty years with the courts repeatedly ordering increased safety measures, to little effect. See: Finney v. Mabry, 546 F. Supp. 628 (ED AR 1982).

In 1992 Ernest Smith and John Stewart were asleep in their beds in a barracks at the Cummins Unit when they were stabbed by prisoner John Lewis. Per DOC policy, there were no staff members inside the barracks at night ...

PLRA Applied to Released Prisoners

The court of appeals for the seventh circuit held that appeals filed after the Prison Litigation Reform Act (PLRA) was enacted on April 26, 1996, were subject to dismissal unless a former prisoner paid the filing fees based on the funds he had in his prison account prior to his release from prison. Martin Robbins filed several suits while imprisoned in Indiana. Several were dismissed as being incomprehensible after Robbins refused court orders to clarify the complaints; others were dismissed as frivolous for failing to state legal claims. Robbins appealed five of the dismissals and was later released from prison.

The court gives a detailed discussion to the filing fee provisions and requirements of the PLRA. The court noted that under Thurman v. Gramley, 97 F.3d 185 (7th Cir. 1996) and Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996) "Obligations under the Act depend entirely on the filing date of the appeal. Because Robbins is now out of prison, and neither appeal was filed for statutory purposes before his release, the Act does not apply at all to his first two appeals." The court held that these were frivolous, denied him In Forma Pauperis (IFP) status and ...

Indiana Muslim Consent Decree Vacated under PLRA

A federal district court in Indiana applied the Prison Litigation Reform Act (PLRA) to immediately terminate a consent decree judgment governing prisoners' religious rights. In 1982 prisoners at the Indiana State Prison entered into a consent decree with prison officials to settle a suit involving religious discrimination. Under the decree, the defendants adopted a policy whereby the American Muslim Mission was recognized as a legitimate religion and was afforded the rights given other religious groups in Indiana prisons: an office, office furniture, equipment, weekly religious services, etc.

On October 21, 1996, the defendants filed a motion under the PLRA, 18 U.S.C. 3626(b)(2) to immediately terminate the decree. The pro se prisoner plaintiffs responded and the court terminated the decree. The court relied on the fact that there were no current, ongoing violations of federal rights and that the defendants had complied with the terms of the decree for many years. The court held that with no evidence showing a current violation of federal rights it was inappropriate for the court to retain jurisdiction over a state prison. "Even if the consent judgment is terminated, prison officials are still bound to provide Muslim prisoners their rights under ...

PLRA Allows Sua Sponte Dismissal

A federal district court in Illinois held that the Prison Litigation Reform Act (PLRA) allows courts to assess filing fees and then dismiss prisoner petitions prior to service on the defendants if they fail to state a claim. Deangelo Jones is an Illinois state prisoner who protested being removed from protective custody and released to the general prison population, claiming his life was in danger. Jones filed suit, which the court dismissed.

The court noted that prior to the PLRA's enactment a court could dismiss lawsuits only if they were legally or factually frivolous. Now, "... the new section 1915A directs the court, in effect, to make and rule on its own motion to dismiss the complaint prior to service." The court held it would apply the standard normally used in adversarial Fed.R.Civ.P. 12(b)(6) motions where the court must accept as true all factual allegations in the complaint, construe pro se complaints liberally and dismiss only if no relief can be granted under any set of facts that can be proved based on the allegations. The court held that Jones' complaint failed to state a claim because he did not allege that any of the ...

PLRA Fee Requirements Not Applicable to Pending Suits

PLRA Fee Requirements not Applicable To Pending Suits

A federal district court in California held that the Prison Litigation Reform Act's (PLRA) In Forma Pauperis (IFP) filing fee provisions are not retroactive to suits filed before the law's April 26, 1996, enactment. Tenance Rodgers, a California state prisoner, filed suit on February 16, 1996, claiming he was beaten and harassed by prison staff because of his sexual orientation. The court had granted Rodgers IFP status. In November, 1996, the defendants filed a motion to require that Rodgers pay the filing fee in this case. The court denied the motion.

The court held that to "trigger" the PLRA's fee requirements a prisoner must "bring" the suit or "file" the appeal. "Once these milestones have passed, fees do not attach to later activities. Cf. Landgraf v. USI Film Products, 511 U.S. 244, n. 29, 114 S.Ct. 1483, 1502 n. 29 (1994); Diaz v. Shallbetter, 984 F.2d 850 (7th Cir. 1993). Therefore, because the PLRA does not, by its express language or legislative intent, seek to prohibit the prosecution of a pending civil action, especially one which has already been determined to be non-frivolous' for purposes of ...

PLRA Confuses Courts; Applies Only to Prisoners

To illustrate how poorly written the PLRA is, the court of appeals for the sixth circuit held that 28 U.S.C. § 1915 still "allows individuals who are not prisoners to litigate a case without the prepayment of filing fees." In their haste to kick prisoners out of court, Congress rewrote section 1915 and changed the language referring to "persons" to "prisoners." A literal interpretation being that non prisoners could no longer file suit in forma pauperis, at all. Dorothy Floyd, a non prisoner, sued the postal service and her suit was dismissed. The district court held any appeal would not be in good faith and denied IFP status for the appeal.

The ruling contains notes about the PLRA's scanty legislative history, from which the court concluded it was intended to apply only to prisoners. "The intent of congress ... was to eliminate pauper status only for incarcerated individuals." Thus, non prisoners may still proceed IFP. The tortured gymnastics the court engaged in to reach this conclusion amply show how poorly drafted the PLRA is.

The court also held that to the extent the PLRA conflicts with Fed.R.App.P. 24(a), which governs IFP appeals, the rule is ...

Ninth Circuit Affirms BOP Sentence Reductions

The court of appeals for the ninth circuit affirmed a district court granting of habeas relief to a federal prisoner who had been denied a one year sentence reduction after completing a drug treatment program. This also implicates two other district court cases on the same issue. In Downey v. Crabtree, 923 F. Supp. 164 (D OR 1996) the district court held that the Bureau of Prisons (BOP) was not free to create its own definitions of "violent crime" when considering prisoners' requests for sentence reductions. Bruce Downey was convicted of possession with intent to distribute methamphetamine. He successfully completed a residential drug treatment program and was awarded a certificate of completion. He then asked the BOP to reduce his sentence by one year pursuant to 18 U.S.C. § 3621. The BOP refused to do so claiming that under BOP Program Statement 5330.10 and 5162.02 he had been convicted of a "crime of violence" and was not eligible for a sentence reduction.

The district court noted that in § 3621 congress did not define the term "crime of violence" when it specified that only prisoners convicted of non-violent offenses would be eligible for sentence reductions. The court relied ...

Drug Policy as Social Control

In the typical third world society, like Colombia, or India, or Mexico or Egypt -- they are all more or less the same there is a sector of great wealth, enormous wealth, there are large numbers of people who live somewhere between suffering and misery, and then there is a sector who are just superfluous; they're of no use, i.e., they don't contribute to profit. So you just have to get rid of them somehow.

Every third world society has the same structure, and that structure is now being imposed on the United States. Inequality is growing, a large part of the population, probably a majority, is declining in earnings, wealth is enormous and very concentrated, profits are going through the ceiling. They have never had such profits before and a large part of the population is useless. Unskilled labor in urban slums, which happens to be mostly Black and Hispanic, the superfluous people.

In these circumstances what do you do? Well, you have to do the same thing they do in the third world. You have to get rid of the superfluous people, and you have to control the ones who are suffering. How do you control ...

Virginia Warden Stabbed

In the December 1996 issue of PLN we reported, "Botched Escape Sparks Rebellion," about an attempted escape and prison uprising at the Nottoway Correctional Center in Virginia. Cited in that article was the high level of tension in the Virginia prison system due, in part, to the January 1, 1997 implementation of new statewide restrictive property policies. That article closed with: "According to PLN sources, the tension in Virginia ... continues to increase."

On December 27, 1996 during the lunch meal in the chow hall of the Buckingham (VA) Correctional Center, Warden Eddie L. Pearson received a gruesome personal Christmas greeting. Dennis K. Webb, a 32-year-old prisoner not eligible for parole until 2069 for stealing $47 at gunpoint from a Family Dollar Store, walked is up to warden Pearson and said, "Merry Christmas Mother Fucker," then slashed the warden from lip to ear with a homemade knife.

As is the custom in Virginia since Ron Angelone took over as that state's corrections chief, press accounts contain only his version of events. Angelone has banned reporters from access to the state's prisons. Not only are reporters barred from interviewing prisoners, state prison employees are forbidden by Angelone to talk to ...

Should Prisoners Have the Right to Strike? Some Union Leaders Say "Yes!"

Should Prisoners Have the Right to Strike? Some Union Leaders Say "Yes!"

by Phil Wilayto

On Feb. 17, 1997, the Executive Council of the AFL-CIO opened its annual mid-winter meeting in Los Angeles. As the first item of business, the 54-member council voted to "support and encourage aggressive organizing campaigns" among welfare recipients participating in "workfare" programs. National union leaders -- including AFSCME President Gerald McEntree, Service Employees President Andrew Stem and Communications Workers President Morton Bahr -- announced that workfare organizing campaigns will soon begin in New Jersey, Alaska, California, Maryland and New York.

This is an important new development for the U.S. labor movement, which in recent years has tended to view welfare recipients as the enemy of working people. Exploiting this prejudice, right-wing politicians have been able to build a social consensus for "welfare reform" schemes that are, in reality, little more than ways of forcing single mothers into slave jobs for city and county governments and corporations.

But there's another group of workers in the U.S. that also need the support of organized labor: the tens of thousands of prisoners now working for private corporations or outside government agencies.

Over the past few years, prison-labor-for-hire ...

Texas Prisoners Get Second-Rate Doctors

Texas prisons have become a refuge for several doctors with troubled pasts. The Dallas Morning News identified eight physicians working in state prisons after having been disciplined by medical review boards.

The state of Michigan in June 1990 revoked Dr. Robert A. Komer's medical license for sexually abusing six patients. Komer did not contest allegations in sworn affidavits that he drugged several patients and then fondled them. Or that he instructed a woman with a personality disorder to perform oral sex on him at the end of therapy sessions.

Komer moved to Texas in 1990, was placed on probation by the Board of Medical Examiners, and ordered to undergo psychiatric treatment. He was also given a job as a psychiatrist for prisoners at the state Pack and Ferguson prison units.

Five of the other cited doctors are practicing with restrictions ordered by the Texas Board of Medical Examiners, with three others on probation as recently as 1994, according to records obtained by newspaper reporters.

Dr. Michael Warren, health care director for the Texas prison system, said that with almost 140 doctors on staff, it is not unusual that some would have problems.

Salaries of the eight cited doctors ranged ...

New Jersey Prison Guard Recruiting for KKK

State and federal authorities launched an investigation in 1996 to probe the extent of the Ku Klux Klan involvement at New Jersey's Bay State Prison. On June 5, 1996, the New Jersey DOC fired Wayne Keller, 45, who was described by a newspaper as a 'senior corrections officer," for soliciting other guards to join the Klan.

According to DOC documents cited by newspaper reporter Miles Jackson, Keller told DOC investigators that at least 40 prison guards at Bayside and Southern State Corrections Facility are members of the Klan.

Bob McHugh, a NJ DOC spokesperson, said those allegations were unsubstantiated. "There is no hard evidence at this point of Klan involvement beyond officer Keller, except for the other officer who said he was approached by Keller," said McHugh. "But it's a sad reality that in any organization, particularly one as large as ours, there is going to be inappropriate behavior."

Miriam F. Clark, an attorney for a group of black and female employees of the NJ DOC, said "inappropriate behavior" that evokes the name of the KKK is not rare.

In a 1993 complaint filed by the U.S. Department of Justice against the NJ DOC, several Klan-related incidents ...

Update on Washington Money Seizure Suit

In the June, August and December, 1996, issues of PLN we reported the history and developments in Wright v. Riveland, the Washington class action lawsuit challenging the legality of RCW 72.09.480, a state statute that allows the DOC to seize 35% of all funds sent to state prisoners. For more details on the origins and history of the litigation refer to the PLN back issues.

In November, 1996, the attorney generals office filed a motion to dismiss the lawsuit for failure to state a claim under Fed.R.Civ.P. 12(b)(6). In a stunning ruling, magistrate judge Kelley Arnold issued a Report and Recommendation (R&R) on December 31, 1996, which recommended the court dismiss all of the plaintiff class's constitutional challenges to the statute. The magistrate ruled that no due process, equal protection, ex post facto, bill of attainder, takings clause and excessive fines claims were stated in the complaint. The report also held that the double jeopardy claim should be dismissed without prejudice "to preserve the rare case where an individual inmate may be required to incur a grossly disproportionate share of the costs of incarceration and/or the victims compensation fund." This is internally inconsistent with the purpose of a motion to dismiss where either a claim is stated or it isn't! The magistrate recommended that the statutory claims, that RCW 72.09.480 violates federal laws and the supremacy clause of the U.S. constitution by allowing the seizure of federally protected funds, not be dismissed.

Both parties objected to district court judge Franklin Burgess who on April 9, 1997, in a nine page ruling, adopted the R&R in its entirety and dismissed the constitutional claims. What makes this ruing so incredible is that the standard for dismissal under Fed.R.Civ.P. 12(b)(6) is very high. A court can consider only the allegations made in the complaint, must construe them in the light most favorable to the plaintiff and assume them to be true and should dismiss the complaint only if the plaintiff is not entitled to relief under any conceivable legal theory or set of facts. As a practical matter, motions to dismiss are rarely if ever granted in cases filed by counsel simply because the standard is so high. One Washington civil rights attorney who reviewed the rulings commented: "This is absolutely bizarre. It will be reversed as soon as it hits the ninth circuit." Both rulings are unpublished. See: Wright v. Riveland, Case No. C95-5381FDB, U.S. district court in Tacoma, WA.

On April 7, 1997, the Seattle Post Intelligencer ran a front page story "Inmates Fight a State Bite on Their Gifts-35% is Taken Off the Top of All Money They Are Sent." The article reported that from May 20, 1996, when money first began being seized, through February, 1997, Washington's 12,000 plus prisoners had been sent about $3.1 million in gifts. Of that amount, $156,398 was seized for a state crime victim's fund; $313,753 was seized for non interest bearing prisoner savings accounts and $627,506 was seized to ostensibly pay the DOC's operating costs. Since the DOC has a biannual budget of around $750 million, the money seized from prisoners' gifts represents less than one tenth of one percent of the DOC operating budget.

In the 1997 legislative session, Representative John Koster (R-Monroe) introduced a bill that would eliminate the 20% "cost of corrections" deduction on gifts under $100 a month received by prisoners. Koster introduced the bill after prisoner's ...

Democracy, Racism and Disenfranchisement

One in seven black men are currently or permanently prevented from voting because they are imprisoned or are ex-felons, according to a report released in January, 1997, by the Sentencing Project in Washington DC.

There are an estimated 10.4 million voting age black men in the U.S. An estimated 1.46 million have lost the right to vote. Of this disenfranchised group, 950,000 are ineligible to vote because they are in prison or on probation or parole. Another 510,000 are permanently barred in the 13 states that revoke the right to vote for life for most convicted felons.

Forty-six states prohibit felons from voting while jailed. Only Maine, Massachusetts, Utah and Vermont allow prisoners to vote. Thirty-one states bar felons from voting while they are on probation or parole. The thirteen states that permanently deprive the right to vote from virtually all felons are Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Maryland, Mississippi, Nevada, New Mexico, Tennessee, Virginia and Wyoming.

"These figures are truly shocking," said Barbara Wright, director of the voting rights project at the Lawyers Committee for Civil Rights. "Voting is what makes you a citizen. It's tragic to contemplate the creation of an ...

Reviews

Prison Connections is a 12 page quarterly "newsletter of prison activism in New England." Each issue reports news and information relating to prison issues in the New England states. Recent issues have discussed jail conditions, education cutbacks, rallies protesting DOC policies in MA, the lack of DOC accountability, litigation updates and more. Each issue also has articles in Spanish. Subscriptions are $5 a year for individuals; $10 for institutions. Write: Western MA Prison Issues Group, P.O. Box 9606, N. Amherst, MA 01059-9606

Prisoners' Assistance Directory is a 64 page directory published by the ACLU's National Prison Project, now in its 11th edition. The directory lists attorneys, publications, groups and organizations which are involved in prison litigation, civil rights and criminal justice issues on a state by state and national basis. The directory is highly recommended for libraries and groups involved in prison issues. The NPP does not recommend the directory for individual prisoners who can likely use only a few of the listings. Cost is $30. Contact: NPP, 1875 Connecticut Ave. NW Suite 410, Washington DC 20009. (202) 234-4890.

Against All Odds is the bi-monthly newsletter of Ohio Cure. Each 8 page issue is filled with news affecting ...

Illinois DOC Phone System Upheld

A federal district court in Illinois held that the phone system used in the Illinois DOC does not violate the first amendment. Four Illinois state prisoners at the Western Illinois Correctional Center (WICC) filed suit against several prison officials and AT&T claiming the prison phone system violated their first amendment rights.

Prior to November, 1994, Illinois prisoners could place operator assisted collect calls anywhere in the United States. The prisoners did not have to provide prison officials with the names or phone numbers of the people they were calling. In November, 1994, the prison began using a new collect call phone system.

The new system allows prisoners to access the phones through a Personal Identification Number (PIN). Prisoners must provide their keepers with a list of up to 30 people they wish to call; the list can be amended on a weekly basis. The prisoner must provide prison officials the callee's name, phone number, address and relationship to the prisoner. The amendment takes two days to complete and collect calls can be placed to anyone on the list. All calls are monitored and recorded. If a prisoner identifies a number as that of an attorney, the prison officials activate software which they claim ensures that calls to that number are not recorded. The software automatically cuts off phone calls where any attempt is made to use three way calling. Both the prison system and AT&T block calls on their own initiative or on the callee's request.

In their suit the plaintiffs claimed they had not been able to contact their attorneys, relatives had not accepted their phones calls and people they wanted to call did not want their personal information released to prison officials. On the defendants' motion for summary ...

Moors Settle with Indiana DOC

As a result of more than 15 years of struggle and litigation, the Moorish Science Temple and the Indiana Department of Corrections entered into a settlement agreement stemming from a suit filed by Granville Radford-Bey and Spencer Caldwell-Bey.

On August 30, 1996, the Moors at Plainfield Correctional Facility were allowed to hold their first official Sunday School and Holy Day Services with Bro. R. Love-El opening the meeting. As a result of this settlement, the IDOC has until February, 1997, to implement the terms of this agreement for the entire general population of IDOC where a sufficient number of members have requested services and where other equivalent groups are provided for their religious meetings.

Any prisoners within the IDOC who wish to receive a copy of the settlement, entitled Radford-El v. IDOC, No. IP94-1794-C-T/G, may obtain a copy upon written request accompanied with three stamps for postage by contacting:


Kenneth J. Falk
Indiana Civil Liberties Union
1031 East Washington
Indianapolis, IN 46202-3952

Seventh Circuit Questions ADA Applicability to Prisons

The court of appeals for the seventh circuit issued its first ruling on the applicability of the Americans with Disabilities Act (ADA) to prisoners. In doing so it held that claims of incompetent medical treatment are not cognizable under the ADA. It also held a district court must notify pro se litigants of the failure to respond to defendants' motion for summary judgment before dismissing the case. This is only the third circuit court ruling to explore the applicability of the ADA to prisons. The others are Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995) [PLN Mar. '95] and Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1997) [PLN Jan. '97].

Ronald Bryant is an Illinois state prisoner who suffers from paraplegia which causes leg spasms. After being denied bed rails his leg spasms caused him to fall out of bed and injure himself. After a leg operation he was denied pain medication. He filed suit claiming his rights were violated under the eighth amendment and the ADA, 42 U.S.C. 12101. The district court granted the defendants summary judgment based on affidavits from medical practitioners to the effect that Bryant had received adequate medical care ...

Disciplinary Finding Must Be Supported by Reliable Evidence

The court of appeals for the seventh circuit held that while only "some evidence" is required to uphold a finding of guilt in a prison disciplinary hearing, that evidence must be reliable. Michael Meeks is an Indiana state prisoner who was infracted for allegedly smoking marijuana. After a urinalysis test that prison officials claimed was positive for marijuana he was infracted. Meeks contended that the urine sample was not his because there was another prisoner with the same name at the prison and they had been confused in the past. He was found guilty and deprived of good time credits. Meeks then filed a habeas corpus petition in federal court challenging the loss of good time and the court denied the petition. The appeals court reversed and remanded with instructions to the court to grant the petition.

Both parties agreed that Indiana state prisoners have a protected liberty interest in earned good-time credits and in credit earning class, and that the state may not deprive prisoners of good-time credits without following constitutionally adequate procedures to insure that the credits are not arbitrarily rescinded. See: Wolff v. McDonald, 418 US 539, 94 S.Ct. 2963 (1974). The loss of good time ...

Qualified Immunity for Infraction Suit

The court of appeals for the eighth circuit held that a district court erred when it found prison officials liable and awarded a prisoner damages after the court found no evidence supported a disciplinary committee's finding of guilt. The court also held that prisoners challenging disciplinary hearing results can ...

No Care for STD Violates Eighth Amendment

A federal district court in Texas held that a jail prisoner had stated a claim for violation of his eighth amendment right to medical treatment when he was not provided with medical treatment for a Sexually Transmitted Disease (STD) he had sought treatment for. Thaddeus Jolly was arrested and taken to the Harris County (Houston) jail in Texas. Shortly thereafter he noticed a pus-like discharge oozing from his penis. Beginning in October, 1991, Jolly sought medical treatment. Despite seeing the jail's STD counselor, who was not a licensed physician, he received no treatment for his condition. The counselor claimed blood tests revealed he was healthy. Despite continued requests for treatment, none was provided. During this period Jolly experienced urinary tract problems, pain, discharges and testicle decay. After a court order was obtained Jolly was seen by the jail doctor who made no diagnosis. After a second court order was obtained, Jolly was seen by a urologist who claimed he was fine. In February, 1993, Jolly was transferred to the Texas DOC where he was seen by a doctor, diagnosed with chlamydia and treated. Jolly filed suit against the jail doctor, STD counselor and urologist.

As a result of the ...

$1.65 Million Jury Verdict in Cell Assignment Case Affirmed

The court of appeals for the seventh circuit affirmed a jury verdict against prison official defendants finding that they were deliberately indifferent to a prisoner's safety by leaving him in a cell with a mentally ill prisoner who later tried to kill him. In doing so, the court clarified ...

Racial Rioting Erupts in L.A. Jail

Two days of bloody fighting between black and Latino prisoners at Los Angeles County jails left 200 injured, 188 with serious wounds and 26 with minor scraps and bruises. Three deputies were also hurt in the eight incidents at the Pitchess Detention Center facilities in Saugus, November 21, 1996.

Sheriff's spokesman, Bill Martin, said, "The entire situation appears to have been precipitated by a slight altercation that occurred earlier. As a consequence, we were able to determine these were planned." The maximum and medium facilities were placed on lockdown status.

Deputies used batons, rubber bullets, pellet grenades, and pepper spray to subdue 43 prisoners late in the afternoon of the first day of rioting. The 8,000 man complex has a history of racial unrest between blacks and Latinos and most of the incidents in the two days of rioting were confined to these groups, although one fight broke out between blacks and Asians. More than 100 additional deputies had to be put on standby.

Mental Unhealth and Prisons

Thanks for publishing information about mental health issues and prisoners. We expect to see a major increase in forensic [mentally ill] prisoners as we roll into the future and close down more state hospitals while simultaneously underfunding community resources for the mentally disabled.

As they say, "shit happens" and in our increasing desire to punish wrong-doers, more and more persons are transinstitutionalized. Putting aside class and race issues for a moment, it is not enough that we filled the jails with people whose problems are largely tied into patterns of substance abuse and we do not provide any substance abuse treatment, but we will also re-incarcerate the mentally ill in ever increasing numbers.

However this time, treatment will consist of medicating a person into being a drooler. Submit to medication or remain in your cell, that is the reality of most folks, and how the DOCs get around forced medication restrictions, something they have been blocked from doing, in large part, in most state hospitals.

By the way, how many people are locked down in "super-max" places and classified as level 5 [who] also have a major psychiatric diagnosis? How did they get there? Ever think that maybe their behavior ...

Guard Tower Scam

In the January PLN, Paul Wright described the ordeal of the guards' union in Washington state successfully fighting the DOC's effort to reduce staffing of the guard towers in Washington's prisons. While it's clear that the public-employee unions representing turnkeys fight tooth-and-nail to keep positions from being cut, regardless of the circumstances, there is another, more sinister, level to this game. Prison officials use the guard-tower-staffing hoax to manipulate the public into supporting ever-larger budgets for prison agencies.

The current annual budget for the DOC here in Wisconsin is a half a billion dollars. A budget increasing at that rate is the prisoncrats' dream; it expands their power and relative importance in state government.

DOC administrators would like to see their budgets continue to expand, but they face an obstacle. Money for the DOC has come at the expense of other state agencies. Some people in state government, particularly key Democrats in the WI legislature, question the wisdom of reducing funding for higher education and social services in order to operate more and more prisons.

Every time someone in the legislature or another state agency takes a prominent stand against the ballooning DOC budget, prison officials fall ...

Do the Math

I read an article in the Wisconsin State Journal about Wisconsin sending prisoners to Texas. There are going to be 700 prisoners shipped there (40 per week, which will take 17.5 weeks) at a cost of $39.36 per day for their housing once they are there.

Using a progressive accumulation formula, the per diem housing cost will be $1,879,046.40 for the 17.5 weeks it takes to transport all 700 prisoners, and $192,864 per week thereafter. This brings the total housing cost to $8.5 million ($1.9 million for the first 17.5 weeks and $6.6 million for the remaining 34.5 weeks) for housing 700 Wisconsin prisoners in Texas for one year.

Yet the money budgeted for this ridiculous project amounts to only $3.8 million. If you compare this to the true cost, you will notice a short fall of $4.7 million.

But then you also have to calculate the cost of transporting the prisoners to and from Texas to fully appreciate how erroneous the $3.8 million budgeted (and publicized) figure is. The article states that the transportation cost is $5,600 per trip, for a total of ...

News in Brief

AZ: On March 7, 1997, prison guard Brent Lumley, 33, was found stabbed to death in the control room of the Perryville state prison. A shank, presumably the murder weapon, was sticking out of Lumley's neck. Seven prisoners were considered suspects in the case.

CA: In February, 1997, officials at the Corcoran prison announced they had uncovered an organized effort by prisoners in the Protective Housing Unit (PHU) to market Charles Manson memorabilia. Photos and other items were found in nine PHU cells and the prisoners were charged with operating an illegal business. Manson was not accused of knowing participation.

CA: In January, 1997, Los Angeles county opened its $373 million Twin Towers jail after it had sat vacant for 15 months due to a lack of operating funds. The 4,000 bed jail is expected to be full by year's end.

CO: On January 22, 1997, a federal jury in Denver awarded $362,500 in damages to former Ordway state prison guard Sandra Haberman. Haberman claimed male guards taunted her with comments about the size of their penises and requests for sexual favors.

CT: Danbury lawyer Barbara Monsky sued state judge Howard Moraghan in federal court, claiming ...

RFRA Allows Redaction of Religious Publication

The court of appeals for the eleventh circuit held that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, is not violated when prison officials censor only portions of a religious publication. This is the first eleventh circuit ruling to interpret the RFRA in the prison context. It is only the latest in a series of rulings that have issued since Robert Lawson, a Florida state prisoner, filed a class action suit on behalf of Hebrew Israelite prisoners. The suit began after the Florida DOC began censoring all Hebrew Israelite publications, claiming they contained "highly charged, anti-white racism" threatening prison security.

The district court has consistently ruled in the prisoners' favor, finding the prison official defendants had violated the prisoners' free speech and free exercise of religion rights, primarily because the defendants could not support their security claims. See: Lawson v. Wainwright, 641 F. Supp. 312 (SD FL 1986); Lawson v. Dugger, 844 F. Supp. 1538 (SD FL 1994). The supreme court vacated one of the rulings for reconsideration in light of Thornburg v. Abbott, 490 U.S. 401, 109 S.Ct. 1874 (1989), the supreme court's latest mail censorship case.

After the RFRA was enacted into ...

TRO Granted in DC Smoking Suit

A federal district court in the District of Columbia granted a Temporary Restraining Order (TRO) requiring non-smoking D.C. prisoners to be moved to non-smoking quarters and for D.C. DOC officials to enforce prison no smoking policies by disciplining guards and prisoners who violate the policy. The court also criticized the defendants for refusing to settle the case unless the prisoners' attorney agreed to waive his fees. Several D.C. prisoners filed suit claiming their eighth amendment rights were violated by their involuntary exposure to Environmental Tobacco Smoke (ETS) when forcibly celled with smoking prisoners. The prisoners sought a TRO pending resolution of their lawsuit.

The district court granted the TRO holding the prisoners had shown a likelihood of prevailing on the merits of their suit and that they would suffer irreparable harm if it were not granted. The TRO was granted after an evidentiary hearing in which the prisoners submitted unrefuted affidavits detailing their exposure to ETS and the DOC's failure to enforce its no smoking policy.

The court noted that prisoners have an eighth amendment right not to be exposed to excessive ETS. See: Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475 (1993 ...

Washington EFV Ban Upheld

In an unpublished opinion the ninth circuit court of appeals affirmed dismissal of a Washington prisoner's challenge to a prison policy restricting participation in the Extended Family Visiting (EFV) program. Jerry Harrison was a Washington state prisoner with a prior domestic violence conviction. He filed suit after, due to this conviction, he was excluded from participating in the EFV program by Division of Prisons (DOP) policy 590.100, enacted on February 13, 1995. The district court dismissed the suit as frivolous; the court of appeals affirmed.

The appeals court noted that prisoners have no constitutional right to family visiting. In Mendoza v. Blodgett, 960 F.2d 1425 (9th Cir. 1992) the ninth circuit held that Washington prisoners have a state created liberty interest in visiting. In this ruling the court held that Mendoza is not dispositive because under Sandin v. Connor, 115 S.Ct. 2293 (1995) "Harrison lacks a state created liberty interest in the EFV program. EFV's are not 'ordinary incidents of prison life."'

The court also rejected as meritless the argument that the EFV policy violated Harrison's right to equal protection and the constitutional provisions of ex post facto and separation of powers. In doing ...

$75,000 Jury Verdict in Prisoner Attack Affirmed

The court of appeals for the seventh circuit affirmed a jury verdict awarding a prisoner $75,000 in compensatory damages and $55,262.42 in attorney fees after the prisoner was threatened then beaten by other prisoners. Gregory Pope, an Illinois state prisoner, was threatened by three other prisoners. Pope ...

 

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