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Prisoner Education Guide

Prison Legal News: June, 1997

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Volume 8, Number 6

In this issue:

  1. America's Private Gulag (p 1)
  2. Speedy Death Penalty Provisions Enjoined in California (p 5)
  3. Strange Bedfellows; CCA's Political Connections (p 5)
  4. Texas Sheriff Exploits Prisoner Labor (p 5)
  5. From the Editor (p 6)
  6. Grievance Retaliation Unconstitutional (p 7)
  7. Qualified Immunity for Strip Search (p 7)
  8. PLRA Not Enough for Fourth Circuit (p 8)
  9. Sixth Circuit Issues PLRA IFP Order (p 8)
  10. Fifth Circuit Holds that PLRA Requires Fees in All Pending Cases (p 9)
  11. Ninth Circuit: PLRA Doesn't Apply to Habeas (p 9)
  12. Massachusetts Court Avoids Ruling on Consent Decree Termination (p 9)
  13. Pro Se Tips and Tactics (Declaratory Relief) (p 10)
  14. Federal Parolees Kicked off Internet (p 11)
  15. Texas Prison Building Corruption, Problems and Dangers (p 12)
  16. A Matter of Fact (p 13)
  17. Jury Verdict in Prisoner Attack Affirmed (p 13)
  18. On the Edge of Midnight (p 14)
  19. CDC Consent Decree Contempt Vacated (p 15)
  20. California Prisoner Wins Judgment Against Guard in Shooting (p 16)
  21. PLN Readers Dissatisfied with Freedom Press (p 16)
  22. California Slave Labor Loses Money (p 17)
  23. Denial of Eyeglasses Violates Eighth Amendment (p 17)
  24. Swastika Carved on CDC Prison Guard Rifle (p 18)
  25. Illinois Jail Conditions Suit States Claim (p 18)
  26. FTCA Suit Not Barred by Prior Bivens Claim (p 19)
  27. Trial Required on ADA EFV Claim (p 19)
  28. California Prisoners Entitled to Contact Attorney Visits (p 20)
  29. No Frivolousness Review Allowed When Filing Fee Paid (p 20)
  30. Book Review - Privatization and the Provision of Correctional Services: Context and Consequences (p 21)
  31. Iowa Retaliation Verdict Affirmed (p 21)
  32. Pro Se Litigant Entitled to Defendant's Identity (p 22)
  33. Relation Back Period Suspended during IFP Application (p 22)
  34. 'Scared Straight' Youths Molested in Texas Prison (p 22)
  35. Prison NA Meetings Violate Establishment Clause (p 23)
  36. BOP Owes Duty of Care to Prisoners (p 23)
  37. TB Isolation May Violate RFRA (p 23)
  38. News in Brief (p 24)
  39. Habeas Petition Not Mooted by Segregation Release (p 25)
  40. BOP Can't Set Restitution (p 26)
  41. Wisconsin RFRA Jewelry Ruling Affirmed (p 26)
  42. Mississippi Detainees Awarded Damages in Disciplinary Suit (p 26)
  43. Prisoners' Spouses Challenge Washington 35% Law (p 27)
  44. Massachusetts Prisoners Awarded Back Pay (p 27)
  45. $7,500 Awarded in Guard Beating (p 27)

America's Private Gulag

What is the most profitable industry in America? Weapons, oil and computer technology all offer high rates of return, but there is probably no sector of the economy so abloom with money as the privately-run prison industry.

Consider the growth of the Corrections Corporation of America, the industry leader whose stock price has climbed from $8 a share in 1992 to about $30 today and whose revenue rose by 81 per cent in 1995 alone. Investors in Wackenhut Corrections Corp. have enjoyed an average return of 18 per cent during the past five years and the company is rated by Forbes as one of the top 200 small businesses in the country. At Esmor, another big private prison contractor, revenues have soared from $4.6 million in 1990 to more than $25 million in 1995.

Ten years ago there were just five privately-run prisons in the country, housing a population of 2,000. Today nearly a score of private firms run more than 100 prisons with about 62,000 beds. That's still less than five per cent of the total market but the industry is expanding fast, with the number of private prison beds expected to grow to 360 ...

Speedy Death Penalty Provisions Enjoined in California

A federal district court in San Francisco enjoined the state of California from putting its death row prisoners onto a federal court habeas "fast track." In the August, 1996, issue of PLN we reported enactment of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). One of the act's provisions is that states who provide competent counsel to death row prisoners in state court proceedings can then get an expedited review in federal court and if things go well for the state, kill prisoners faster.

This case involves a class action suit under 42 U.S.C. § 1983 by prisoners facing the death penalty in California. The district court granted the plaintiffs' motion for a Preliminary Injunction (PI) by finding that the state of California had no provisions to provide, and pay, competent counsel, in all state court proceedings involving death row prisoners. Thus, they could not benefit from AEDPA's speedy review provisions. The court gave extensive discussion to the propriety of class action suits to challenge statutes. See: Ashmus v. Calderon, 935 F. Supp. 1048 (ND CA 1996).

Strange Bedfellows; CCA's Political Connections

CCA's connection with local politics began when the Nashville-based company was formed during Governor Lamar Alexander's administration. When CCA made a bid to operate Tennessee's entire prison system in 1985, the governor's wife, Honey Alexander, was criticized for owning $5,000 of CCA stock. She realized a substantial profit ($100,000) when she converted the stock to a blind trust in order to avoid an apparent conflict of interest.

CCA chairman emeritus Thomas Beasley, who co-founded the company in 1983, was previously a chairman of the Tennessee Republican Party.

Among CCA's board members is Clayton McWhorter, an unsuccessful Democratic candidate for Tennessee governor in 1994.

From 1994-96, Doctor Crants, CCA's chief executive officer, and CCA's chairman emeritus Thomas Beasley donated at least $60,491 to Tennessee lawmakers -- including $38,500 to Sundquist's re-election campaign (this includes donations from Beasley's wife, Wendy). In 1996 alone, Crants donated $22,450 to 46 state political candidates, including $2,000 to Rep. Randy Rinks, House Democratic Caucus chairman; and $1,350 to Senator Jim Kyle, chairman of the Select Oversight Committee on Corrections. CCA has seven registered political lobbyists in Tennessee.

In 1995, Governor Sundquist ...

Texas Sheriff Exploits Prisoner Labor

Lubbock county sheriff Sonny Keesee runs an auto repair shop with a twist. Most of its customers are sheriff's deputies. The mechanics are jail-detainees hand-picked for their mechanic skills.

Andy Gentry, a Lubbock county sheriff's deputy, got the engine of his 1989 Toyota replaced for $250 in labor costs. Daniel Summers had the carburetor of his 1986 Suburban rebuilt for $18.

According to Chilton's Labor Manual, a standard reference used by mechanics to estimate labor charges, Gentry saved about $128 on his carburetor repair, and Sommers saved about $93 by using jail prisoners to replace his engine at the county garage.

According to documents obtained by a Lubbock newspaper, at least 24 jail prisoners have performed skilled and semi-skilled jobs through sheriff Keeseet's "Piddler Program." Keesee said that the labor program's services were open to anyone and that his deputies did nothing wrong by "keeping them [prisoners] busy."

But the "Piddler Program" came under scrutiny late in 1996 and was finally canceled after the county's state district judges ordered Keesee to return 14 prisoners he had brought back from prison on bench warrants. Those prisoners had been selected for their job skills.

The judges ...

From the Editor

The Bad News: In April of this year longtime PLN supporter Jerry Dreva died in his sleep from a heart attack. An artist and revolutionary, Jerry could always be counted on to help. Last year he made possible our 28 page issue commemorating the tenth anniversary of the 1986 uprising and subsequent massacre of political prisoners in Peru. Had he not donated the extra money we needed to publish the additional four pages we wouldn't have been able to publish that long awaited article. We at PLN extend our condolences to Jerry's friends and family.

The Good News: PLN was recently awarded two grants for $10,000 each. One is from the Solidago Foundation, the other is from the Center on Crime, Communities and Culture of the Open Society Institute. The grants will support PLN's operating expenses and strategic planning over the next year, with a primary goal of increasing our paid circulation. PLN has always been reader supported and retains the long term goal of maintaining its editorial independence and financial self sufficiency. These grants will assist our transition through a rough period in PLN's growth toward a future of sustained independence and economic self ...

Grievance Retaliation Unconstitutional

The court of appeals for the second circuit reaffirmed that prison officials violate the constitution when they retaliate against prisoners who file administrative grievances. The court discussed the standard of review in prison retaliation cases.

Patrick Graham is a New York state prisoner. After prison grievance representatives contacted Graham about the proposed removal of showers in a workshop, Graham agreed to find some prisoners willing to represent the workshop prisoners in the grievance process. Graham had also filed a grievance as well as a lawsuit in state court challenging the removal of the showers. After obtaining the names of prisoners to be representatives in the grievance process Graham was interrogated by prison officials who claimed he was circulating a petition and organizing a work stoppage. A search of his cell produced a piece of paper with the names of five workshop prisoners on it. Graham was infracted and charged with organizing a work stoppage.

Graham was found guilty of the charges and sentenced to 180 days in segregation. Graham filed suit under 42 U.S.C. 1983, 1985(3) and 1986, claiming the infractions were retaliatory because of his grievances. The district court dismissed the lawsuit because Graham was afforded ...

Qualified Immunity for Strip Search

In the July, 1994, issue of PLN we reported Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1993) which reversed dismissal of a Muslim prisoner's suit claiming violation of his religious rights when guards of both sexes could see him naked. On remand the district court granted judgment as a matter of law to several defendants and a jury ruled against Canedy on all remaining claims. The court of appeals for the seventh circuit affirmed the dismissal.

The appeals court held that in 1992, when this action arose, the law was not clearly established that a prisoner's religion based nudity taboo outweighed a prison's interest in having its guards observe prisoners at all times, in all situations. Thus, the defendants were entitled to qualified immunity from money damages. Because Canedy had been transferred to a different prison his claims for injunctive and declaratory relief were rendered moot. Readers should note that Canedy made no claims under the Religious Freedom Restoration Act (RFRA). See: Canedy v. Boardman, 91 F.3d 30 (7th Cir. 1996).

PLRA Not Enough for Fourth Circuit

One of the PLRA's stated purposes was to cut down on "frivolous" prisoner litigation by requiring full payment of filing fees and imposing a "three strikes" limitation on prisoners who have had more than three suits dismissed for being frivolous or not stating a claim. Apparently the PLRA isn't enough for the fourth circuit.

In five separate cases the fourth circuit singled out serial frivolous litigants (the cases are amusing to read) and imposed a $500 sanction on each plaintiff and issued injunctions barring them from further filings unless the sanctions (and presumably the filing fees as well) were paid and a district judge had certified the claims were not frivolous. These rulings call into question whether the PLRA is accomplishing its stated goal. See: In Re Vincent, 105 F.3d 943 (4th Cir. 1997); Brock v. Angelone, 105 F.3d 952 (4th Cir. 1997); Autry v. Woods, 106 F.3d 61 (4th Cir. 1997); Foley v. Fix, 106 F.3d 556 (4th Cir. 1997); Vestal v. Clinton, 106 F.3d 553 (4th Cir. 1997).

Sixth Circuit Issues PLRA IFP Order

On February 4, 1997, Boyce Martin, chief judge of the sixth circuit, issued an administrative order directing all circuit and district court judges in the sixth circuit to apply the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA) uniformly to all complaints or notices of appeal filed on or after March 1, 1997. Judge Martin's order aptly summarizes the IFP provisions of the PLRA. "No longer do courts first focus on the merits of a prisoner's complaint. Rather, it is the prisoner's financial status that the courts must initially examine. Pauper status for inmates, as we previously knew it, no longer exists. All prisoners while incarcerated must now pay the required filing fees and costs. When an inmate seeks pauper status the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs." The judge noted the PLRA and this order does not apply to habeas proceedings under 28 U.S.C. § 2241, 2254 and 2255.

All prisoners in the sixth circuit (MI, OH, KY and ...

Fifth Circuit Holds that PLRA Requires Fees in All Pending Cases

In two separate rulings, the court of appeals for the fifth circuit held that litigants must pay the filing fees in all civil cases pending on the date the Prison Litigation Reform Act (PLRA) was signed into law on April 26, 1996. Louella Strickland filed suit challenging prison conditions and inadequate medical care. The suit was dismissed and on April 19, 1996, she filed her notice of appeal. The appeals court, on its own motion, raised the issue of whether the PLRA applied retroactively to appeals pending on the date of its enactment.

The court held it did by finding that the PLRA fee requirement was "procedural" and thus could be retroactively applied under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994) to cases that were pending when the PLRA was enacted. In doing so the court explicitly disagreed with White v. Gregory, 87 F.3d 429 (10th Cir. 1996) and Ramsey v. Coughlin, 94 F.3d 71 (2nd Cir. 1996) which both held otherwise. [With a split in the circuits on how the PLRA is to be applied to cases pending on its enactment readers should determine the law in their circuit until ...

Ninth Circuit: PLRA Doesn't Apply to Habeas

The court of appeals for the ninth circuit held that the filing fee requirements of the Prison Litigation Reform Act (PLRA) do not apply to habeas corpus proceedings. "We... hold that the forma pauperis provisions of the PLRA relating to prisoner civil actions and appeals do not apply to habeas corpus proceedings." Thus, prisoners can file habeas corpus actions and appeals without payment of filing fees in the event they are indigent. This ruling agrees with the second, third and seventh circuits which have reached the same conclusion. See: Naddi v. Hill, 106 F.3d 275 (9th Cir. 1997).

Massachusetts Court Avoids Ruling on Consent Decree Termination

A federal district court in Massachusetts avoided ruling on the constitutionality of the Prison Litigation Reform Act's (PLRA) provisions requiring immediate termination of jail and prison consent decrees, 18 U.S.C. § 3626(b)(2), by refusing to vacate a jail consent decree but instead holding the decree would no longer be enforced by an order of specific performance. This case involves 26 years of litigation over conditions at the Suffolk County jail. Settled by a consent decree in 1979 the county has tried repeatedly, without success, to vacate the decree. See: Rufo v. Inmates of the Suffolk County Jail, 112 S.Ct. 748 (1992).

Upon passage of the PLRA the sheriff promptly moved for termination of the consent decree. The plaintiffs opposed the motion, arguing the termination provisions in § 3626(b)(2) were unconstitutional. The district court essentially weaseled out of making a ruling on the PLRA's constitutionality by noting that if it granted the sheriff's motion to terminate it "would raise troubling questions of the statute's constitutionality." The court repeatedly expressed its concern that if it took the PLRA termination at face value and duly vacated the decree it "would raise very serious constitutional ...

Pro Se Tips and Tactics (Declaratory Relief)

One form of remedy available in federal court, including in some prison cases, is a "declaratory judgment." This column discusses what a declaratory judgment is, why you might want one in some cases, and the requirements for getting one.

What Is A Declaratory Judgment And When Should I Ask For One?

A declaratory judgment is a statement (declaration) by a court of the rights of parties to a dispute. In cases in which a declaratory judgment is available, a party may get simply the declaration without asking for (or even qualifying for) a so-called "coercive" remedy, such as an injunction or damages. Or, a party can (and usually does) get a declaratory judgment along with these other remedies.

The authority for a federal court to grant declaratory judgments is in 28 U.S.C. Sec. 2201-2202. Sec. 2201 allows declaratory judgments in "a case of actual controversy." Sec. 2202 states that once a party gets a declaratory judgment, the party may also get against the other party "further necessary or proper relief...after reasonable notice and hearing..." Federal Rule of Civil Procedure 57 states that declaratory judgment actions are governed by the civil rules as are other actions in federal ...

Federal Parolees Kicked off Internet

The U.S. Parole Commission has said that it was so disturbed by the amount of information available on the Internet about child sex rings, recipes for explosives, and plans for hate crimes that in December, 1996, without holding any public hearings, it approved restrictions on the use of computers by certain federal parolees.

The new restrictions, which federal parole officers can put into use as they see fit immediately, will range from prohibiting parolees from owning a computer to installing monitoring equipment on their computers that will keep tabs on where they roam on line.

Michael J. Gaines, one of the three U.S. Parole Commissioners and a former chairman of the Arkansas parole board, said that the commission is most concerned about parolees "with histories involving either pedophilia or hate crime activity, the illegal use of explosives, those kinds of things.'' And he added, "our staff is estimating perhaps 100 or so offenders may fit the condition."

Jenni Gainsborough, speaking for the ACLU National Prison Project, said the new restrictions could probably withstand any legal challenge, since parole boards have the authority to restrict their convicted charges in ways that would be unconstitutional on first amendment and due ...

Texas Prison Building Corruption, Problems and Dangers

Of the prisons built in Texas over the past four years, in about a third of them the boilers don't meet the state safety standards because of installation and design mistakes, resulting in state regulators issuing at least 146 waivers of Texas' strict boiler safety laws - a record.

The state paid millions on design experts to ensure mistakes wouldn't be made in the state's $1.5 billion prison building program, but boiler defects were still found in 20 of 56 of the newest prisons.

Texas Dept. of Criminal Justice officials said the problems pose no safety threat. Yet, on August 10th, 1996, a boiler at the Hutchins State Jail exploded - blamed on a bad valve. Also in August, at the Lychner State Jail, a boiler malfunctioned. An investigation was then undertaken by TDCJ.

Martin Morrow, assistant manager of prison maintenance, who is in charge of boiler maintenance at prisons, said of the problems, "We were not asked to sit on design meetings ... We could have pointed out those things. It's a lot more expensive to be correcting these problems now than it would have been back then."

In January 1997, officials ordered safety inspections of all ...

A Matter of Fact

Between 1984 and 1994, the number of non U.S. citizens serving time in a federal prison increased an average of 15 percent annually, from 4,088 to 18,929. The overall federal prison population, by contrast, increased an average of 10 percent annually, from 31,105 to 87,437. Fifty-five percent of the non-citizens prosecuted in federal court in 1994 were in the U.S. legally.

According to INS estimates, 29,207 "criminal aliens" were deported from the U.S. in the first 10 months of fiscal year 1996, more than in all of 1995. California accounted for 10,784 such deportations. Arizona was second with 5,675 and Texas third with 4,539. All other states combined accounted for the remaining 8,209 "criminal aliens" deported.

The INS deported 67,000 illegal immigrants during 1996, a 34 percent increase over 1995. The figure was 43,500 in 1992, the last year of the Bush administration.

Nearly 40 percent of African-American men in their twenties in California are imprisoned, on parole, or on probation, a rate eight times higher than whites, according to a 1996 study written by the San Francisco-based Center on Juvenile and Criminal Justice.

The California ...

Jury Verdict in Prisoner Attack Affirmed

The court of appeals for the seventh circuit affirmed a jury verdict of $10,000 in favor of a prisoner whose cell was opened by a guard in order for him to be attacked by other prisoners. Edward Paulick, an Illinois state prisoner, was a member of the Northsiders gang ...

On the Edge of Midnight

by Mr.Wolf

An extraordinary ruling by the ninth circuit court of appeals in Hook v. State of Arizona, 98 F.3d 1177 (9th Cir. 1996), brought the Arizona prison system to the brink of disaster during the 1996 holiday season. The ruling is indicative of the folly being exhibited as states move to disengage long-standing consent decrees and enforce the provisions of the PLRA. [See: 'Prison Litigation Reform Act Passed," PLN Vol. 7 No. 7.]

On October 25, 1996, the ninth circuit issued its opinion reversing the earlier district court ruling of judge Carl Muecke regarding portions of a 1973 consent decree which allowed three 251b. food boxes to be sent to prisoners during the holiday season and possession of hot pots.

In 1973 prisoners filed suit alleging violations of their rights under the 1st, 8th and 14th amendments to the Constitution as they relate to restrictions on personal and legal mail, newspapers and magazines. The complaint also covered issues of double-bunking and lack of rehabilitative type programs.

That same year the Arizona Department of Corrections (ADOC) proposed comprehensive changes in its mail policies which the court accepted and approved as part of the consent decree. A ban on ...

CDC Consent Decree Contempt Vacated

The court of appeals for the ninth circuit held that before a party can be held in contempt for violating a consent decree, the decree must set forth the required conduct in specific detail. Prisoners at the California Medical Facility (CMF) in Vacaville filed suit challenging inadequate medical and psychiatric care. The suit was settled by a consent decree entered in 1990. The decree required, among other things, that prison officials provide "appropriate psychiatric evaluation and treatment" to prisoners. Not surprisingly, the California Department of Corrections (CDC) has not complied with the decree. This is the fourth published circuit ruling resulting from the CDC's unwillingness to comply with the decree. See: Gates v. Deukmeiian, 987 F.2d 1392 (9th Cir. 1992); Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994) and Gates v. Rowland, 60 F.3d 525 (9th Cir. 1995). This is in addition to several unpublished rulings.

The district court found the defendants to be in civil contempt for failing to provide "appropriate" medical care to the prisoner plaintiffs and assessed $10,000 a day in fines which was stayed provided the CDC complied with instructions from the special master appointed to oversee implementation of the ...

California Prisoner Wins Judgment Against Guard in Shooting

Herbert Green, a 51 year old African-American prisoner, filed a pro se §1983 action against Robert Konkel, a prison guard at Calipatria State Prison, alleging that Konkel violated his eighth amendment rights by shooting him. The case proceeded to trial where a jury awarded Greene $1 in compensatory damages and ...

PLN Readers Dissatisfied with Freedom Press

For several years PLN ran a free ad for Freedom Press, a post-conviction paralegal service based in Virginia and headed by James Gossard. After receiving a couple of complaints about their service, PLN discontinued the ad in May of 1995. We contacted Gossard and presented him with the complaints we had received. After several letter exchanges between Gossard and PLN (as well as readers who had had complained) we were satisfied that the problems had been isolated incidents which were satisfactorily resolved.

At that point Freedom Press asked us to run the free ad again. Due to space limitations, we declined. But at about that time, PLN began running paid advertisements. Freedom Press offered to pay for a small ad, which PLN then ran for the first half of 1996.

We again received complaints from PLN readers about Freedom Press, and once again discontinued the ad. After more correspondence with Gossard, we-were once again assured that the Complaints had been resolved satisfactorily. We declined, however, to continue running ads for Freedom Press unless they were willing to include a disclaimer in the ad saying that PLN does not "endorse" their service. Freedom Press initially agreed to this stipulation, but then ...

California Slave Labor Loses Money

In California there is a prisoner work program that is supposed to save taxpayers up to $50 million a year. However, a new study has shown that taxpayers are shelling out $180,000 annually. The program generates about $340,000 a year for the state, but costs the state $520,000 to administer for a net loss of $180,000 annually, according to the study by the states legislative analysts. A Joint Venture program, approved by voters in November 1990, was intended to allow prisoners to earn money for themselves and help defray the costs of their incarceration.

The study said the fundamental problem with the program is the awkward co-existence of private businesses and the prison environment. Security and other restrictions are frustrating to private business owners, and prisons aren't designed to include business work areas, the report said.

Noreen Blonien, assistant director of the Department of Corrections who runs the Joint Venture program stated, "we have two very different goals. In corrections, our bottom line is running good, safe prisons, controlling anything out of the ordinary. Business' bottom line is making a profit in the fastest, most efficient way possible. Sometimes the two don't go together ...

Denial of Eyeglasses Violates Eighth Amendment

The court of appeals for the second circuit held that a vision impaired prisoner who is denied medically prescribed eyeglasses states a claim for violation of the eighth amendment. The court also gave some interesting comments that this case should not be confused with "frivolous" litigation cited by anti-prisoner propagandists. Edward Koehl is a New York state prisoner who requires specially prescribed, tinted eye glasses to correct severe double-vision and loss of depth perception resulting from a head injury. Koehl had medical authorization from DOC doctors to have the special glasses. After being transferred to the Downstate Correctional Facility Koehl was given authorization by the prison doctor to have his glasses. In the hospital waiting area two guards asked Koehl if he had permission to have the glasses, Koehl stated he did and showed them the authorization. The guards were not satisfied and asked a nurse for the authorization, which was still in the doctor's office. Despite Koehl's protests, the guards confiscated his glasses and later "lost" them rather than send them to Koehl's home. Despite repeated requests, he received no treatment for his vision problems. As a result, his left eye shifted into the corner of ...

Swastika Carved on CDC Prison Guard Rifle

In January of 1997 authorities at California's Folsom State Prison launched an investigation to find out who carved a swastika and a "white power" insignia into the stock of a staff rifle.

Sgt. Jim Cook, president of the Folsom chapter of the CA prison guard's union (CCPOA) speculated that somebody from a group of six to eight guards who he said belong to a local militia group may be responsible for the carvings. About 500 guards work at the prison.

Cook and another guard filed suit against the Department of Corrections in 1994, charging that they had been subjected to racial harassment and discrimination. The suit was dismissed in the state's favor in a summary judgment just weeks before the racist carving was discovered on the rifle butt.

Cook, apparently in response to a reporter's question, didn't discount the possibility that the messages on the rifle may have been the work of African American guards trying to gain sympathy for themselves at the expense of white guards.

Cook went on to say that if of any guards were charged by the administration in the incident, 'I will give them the best representation that I can ...

Illinois Jail Conditions Suit States Claim

The court of appeals for the seventh circuit held a district court erred in dismissing a pretrial detainee's conditions of confinement suit for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The court also held it was error to dismiss defendants not properly served by the marshalls service. Michael Antonelli filed suit over numerous conditions of confinement at the Cook County (Chicago) jail in Illinois. The district court dismissed the suit, Antonelli v. Sheahan, 863 F. Supp. 756 (ND IL 1994). The court of appeals reversed in part, affirmed in part and remanded.

Two guards were dismissed in the lower court because the marshalls did not serve them with the complaint. Antonelli had supplied the guards' last name and post. The marshalls claimed they were unable to serve the complaint because more than one person with those last names worked at the jail. The court held this was reversible error unless more than one person with the same last name worked the same post. Prisoners are required to supply only enough information to the marshalls so the defendant can be identified and served. This issue was remanded for further inquiry by the lower court ...

FTCA Suit Not Barred by Prior Bivens Claim

In a case of first impression the court of appeals for the seventh circuit held that a plaintiff who files and loses a Bivens suit against federal officials is not automatically barred from filing a tort suit against the United States over the same facts. David Sterling is a federal prisoner [and a notorious informant, see: Sterling v. Wood, 68 F.3d 1124 (8th Cir. 1996) and Sterling v. United States, 826 F. Supp. 570 (DC DC 1993)] who claimed a bag of his legal materials was destroyed by a prison guard in Pennsylvania. He sued the guard in federal court in Pennsylvania in a Bivens suit claiming the violation of his federal constitutional rights. While that suit was pending Sterling escaped. After he was recaptured the suit was dismissed under the fugitive disentitlement doctrine. Sterling did not appeal the dismissal. Instead, he filed a new suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2674, 2680(h).

In the FTCA case the district court held that because the Bivens suit in Pennsylvania was dismissed with prejudice, the FTCA suit in Illinois should be as well. The court of appeals disagreed and vacated ...

Trial Required on ADA EFV Claim

A federal district court in California held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 and the Rehabilitation Act (RA) of 1973, 29 U.S.C. § 794, apply to state prisons and were violated when an HIV+ prisoner and his HIV+ wife were denied Extended Family Visits (EFV). Grady Bullock is a California state prisoner. Both he and his wife Sherry are HIV+ and they participated in the EFV program until he was diagnosed with HIV. Prison policy prohibits HIV+ prisoners from having EFVs with their spouses but not with their other family members. The Bullocks filed suit claiming the EFV ban violated their statutory rights under the ADA and the RA, no constitutional claims were made. The defendants filed a motion for summary judgment which the court denied.

The court held that both the ADA and the RA, contrary to the defendants' claim, did in fact apply to state prisons. This ruling was based on congressional intent to include prisons, ninth circuit precedent and guidelines issued by the Department of Justice. The court combined its ADA and RA analysis as the standards overlap. In this case the Bullocks were clearly entitled to protection because their ...

California Prisoners Entitled to Contact Attorney Visits

The California state court of appeals affirmed a superior court granting a writ of habeas corpus to a prisoner who was denied contact visits with his attorney.

Alan Roark is a California state prisoner represented by Charles Lindner in his direct criminal appeal. Lindner has a precision made prosthetic leg that costs $21,000. Lindner notified California Department of Corrections (CDC) officials that he needed to visit with Roark and that he had a prosthetic leg. Prison officials told Lindner he could visit and that a visual search of his leg would suffice.

Upon arriving at the prison Lindner was told he could not visit Roark unless he removed his leg and allowed guards to disassemble and search it. Lindner declined to do this fearing it would be damaged, he was not allowed to visit Roark. Lindner later corresponded with CDC officials and attempted to visit Roark again. Lindner was again denied a contact visit but was allowed a no contact visit with Roark. The visit took place through thick glass and a phone with no means to pass the 2,500 page trial transcript that Lindner had brought with him to discuss with Roark. Lindner filed a habeas corpus ...

No Frivolousness Review Allowed When Filing Fee Paid

The court of appeals for the eighth circuit held that a district court erred when it dismissed portions of a pro se prisoner's complaint after the filing fee had been paid. The lower court also erred when it instructed the defendants not to respond to the suit unless instructed to do so by the court. John Hake, a Nebraska state prisoner, filed suit claiming he was unconstitutionally denied a transfer from minimum security to community custody. Hake paid the full filing fee when he filed suit in 1994.

The district court incorrectly believed Hake was proceeding In Forma Pauperis (IFP) and reviewed the complaint for frivolousness pursuant to 28 U.S.C § 1915, the IFP statute that allows for dismissal of frivolous suits before service on the defendants. The court held that portions of the suit were frivolous and gave Hake leave to amend his complaint, which he did. Eventually the compliant was served on the defendants, but with instructions from the court not to reply unless ordered to do so by the court. The court later dismissed Hake's compliant for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

The court of appeals ...

Book Review - Privatization and the Provision of Correctional Services: Context and Consequences

Edited by G. Larry Mays and Tara Gray; Anderson Publishing (1996)

This 185 page overview of prison privatization issues presents a thorough examination of the topic without coming down on one side or the other of the privatization question. With that said, the many problems and pitfalls revealed in its pages are all the more outstanding.

Among the chapter topics are: The role of government in a civil society; ideology and the calculation of efficiency in public and private correctional enterprises; legal considerations in prison privatization; privatization and conjugal visitation; and two chapters on prison labor: the role of corporate America in prison industries, and expanding prison industries through privatization.

The chapters on corporate exploitation of prison labor offer a revealing look at the bottom line of prison industries. The book succinctly states: "In order to best reduce the staggering costs of prisons, prison industries must operate efficiently, which means producing the most output for the least possible cost."

Why are prisoners ideal workers to achieve this goal? You'll find the answer later in the same chapter: "[T]here is a certain logic behind the principle of lesser eligibility: convicted criminals should not receive advantages [decent wages, working conditions ...

Iowa Retaliation Verdict Affirmed

In the March, 1994, issue of PLN we reported Goff v. Burton, 7 F.3d 734 (8th Cir. 1993) in which the eighth circuit court of appeals reversed a district court ruling in favor of George Goff, an Iowa prisoner who was retaliated against by prison officials for his legal ...

Pro Se Litigant Entitled to Defendant's Identity

The court of appeals for the seventh circuit held that a pro se litigant is entitled to court appointed counsel in order to discover the identity of defendants and the statute of limitations was subject to equitable tolling while discovery took place. James Donald was arrested by Chicago police and placed in jail. Upon arrival jail guards took his heart medication over his objections. Two days later Donald suffered a massive heart attack. Two years later, three weeks before the statute of limitations expired, Donald filed suit over the incident. Donald's suit named only the sheriff's department and none of the individual guards involved. Donald was denied appointment of counsel and an opportunity to amend his complaint. The district court dismissed the suit and never ruled on any of Donald's procedural motions.

The court of appeals reversed and remanded. The court held that there were extraordinary reasons to grant relief in this case and faulted the district court for its handling of the case. The district court erred in not liberally construing the pro se complaint; not giving Donald an opportunity to amend the complaint or investigate the identity of the guards who deprived him of his ...

Relation Back Period Suspended during IFP Application

The court of appeals for the third circuit held that the 120 day period allowed for amending complaints under Fed.R.Civ.P. 15(c) is suspended while a district court makes an In Forma Pauperis (IFP) determination under 28 U.S.C. § 1915. Donald Urrutia, a Pennsylvania state prisoner, sued various police agencies claiming a violation of his civil rights. unable to pay the filing fee Urrutia sought IFP status. Two months after filing suit and seven weeks before the district court actually made its IFP determination, the two year statute of limitations on his claims expired. Urrutia had sued the wrong parties and was unable to amend his complaint under Fed.R.Civ.P. 15(c) because the 120 day period allowed by the rule had expired. The district court dismissed the suit as frivolous; the third circuit court of appeals vacated and remanded.

"[W]e hold that, once a plaintiff submits an in forma pauperis complaint within the time provided by the statute of limitations, and after the § 1915(a) in forma pauperis determination is made, the 120 day period of Rule 15(c)(3) for satisfying the requirements for relation back of an amendment that changes ...

'Scared Straight' Youths Molested in Texas Prison

On Valentines Day, 1997, fifteen youngsters from a residential treatment center for boys and girls with psychiatric and substance-abuse problems were touring the Eastham Unit prison in Texas as part of a "scared straight" visitation program. Five of the youths later reported they were sexually molested by prisoners during the tour.

The five boys reported that prisoners tried to entice them into their cells and that one prisoner pulled down his pants in front of them. Several prisoners later admitted to this behavior, as well as to fondling the youths through their clothes.

The mother of one of the boys said her son is terrified. "It's been awful, really awful, scary," she said. "He was in fear because he felt he could no longer trust .... These boys were outnumbered by people older and bigger than them."

State prison officials hastily suspended a sergeant and four guards who may have witnessed the incidents but did nothing to prevent the sexual abuse. Larry Todd, a spokesman for the Texas Department of Criminal Justice, said he thinks the prisoners at the 2,300-person prison near Lovelady, Texas, may have been trying to teach the youths a lesson.

"While we do not allow ...

Prison NA Meetings Violate Establishment Clause

The court of appeals for the seventh circuit held that a prisoner's forced attendance at a religion based substance abuse counseling program violates the establishment clause of the first amendment. James Kerr is a Wisconsin state prisoner in a minimum security prison. Prison policy required prisoners with drug abuse problems to attend Narcotics Anonymous (NA) meetings. Failure to attend NA meetings resulted in a higher security rating and negative effects on parole eligibility. NA is the only drug abuse program offered at the prison. Kerr objected to the religious orientation of the NA program and filed suit. The district court granted the defendants summary judgment holding that the NA program had a secular purpose and did not advance or inhibit religion.

The appeals court reversed and remanded. The court gave an extensive discussion to the establishment clause, which prohibits the government from creating or favoring religion or coercing citizens into religious activities. "[W]hen a plaintiff claims that the state is coercing him or her to subscribe to religion generally, or to a particular religion, only three points are crucial: first, has the state acted; second, does the action amount to coercion; and third, is the object of the ...

BOP Owes Duty of Care to Prisoners

The court of appeals for the third circuit held that the Bureau of Prisons (BOP) owes federal prisoners a duty of care and that a district court erred in ruling otherwise. Rother Jones is a federal prisoner who filed a negligence suit against the United States after BOP officials denied him high blood pressure medication he had been prescribed to avoid strokes. As a result of the denial he had a stroke that left him a speechless quadriplegic.

The district court dismissed the suit holding Jones failed to prove negligence because he did not produce evidence that prison officials had a duty to provide him with medication.

The appeals court reversed and remanded, noting that whether a defendants owes a duty of care to a plaintiff is a question of law reviewed de novo on appeal.

The court held that in 18 U.S.C. § 4042(a)(2) and (3) the BOP's duties of care and protection to prisoners are articulated and set forth. "The statute is unambiguous, and to avert summary judgment, Jones was not required to provide a further basis for his contention that defendant had a duty of care toward him."

"The facts are undisputed that ...

TB Isolation May Violate RFRA

A federal district court in Indiana held that a prison policy of isolating Muslim prisoners who refused tuberculosis screening tests may violate the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb(b)(1) and the eighth amendment. Indiana prisoners who refuse TB tests involving the injection of TB germs are placed in medical segregation. In the April, 1996, issue of PLN we reported Jolly v. Coughlin, 76 F.3d 468 (2nd Cir. 1996) which involved almost identical facts and legal issues as this case filed by PLN subscriber Kilonji Jihad.

The court denied prison officials' motion for summary judgment by holding that the RFRA is violated when prisoners refuse to take an injection TB test and other, less intrusive tests, are easily available. Likewise, because Jihad was denied all out of cell exercise for the six months he spent in medical isolation the court denied the defendants' motion for summary judgment on the eighth amendment claim. The court also held that Jihad's due process rights may have been violated by the denial of a hearing prior to his placement in medical isolation. See: Jihad v. Wright, 929 F. Supp. 325 (ND IN 1996).

News in Brief

Brazil: On February 28, 1997, police stormed the Anibal Bruno prison in Recife where three prisoners were holding two guards and 20 prison visitors hostage in an escape attempt. When negotiations stalled the prisoners killed the guard hostages after which police stormed the prison, killing the prisoners and one hostage.

CA: On April 10, 1997, David Anderson escaped from the California Medical Facility in Vacaville by putting a dummy in his bed, cutting through the window bars of his third floor cell, climbing out with a bed sheet rope and cutting through the prison's perimeter fence. The next day Anderson, who is dying of AIDS, kidnapped a newspaper delivery man, robbed him and took his truck. Anderson was later recaptured.

CA: On April 13, 1997, Michael Bradley and Gregory Smith escaped from the CA Rehabilitation Center in Norco by removing a window security screen and cutting through two chain link fences. Both were recaptured the same day after an extensive manhunt.

CA: On April 2, 1997, Daniel Pivulete escaped from Mule Creek State Prison by driving away from a prison work crew in a prison truck. Pivulete was in prison for vehicle theft.

CA: On April 3, 1997, federal ...

Habeas Petition Not Mooted by Segregation Release

The court of appeals for the seventh circuit held that when a prisoner challenges a disciplinary hearing via federal habeas corpus collateral consequences will be presumed by the court. Martin Bryan is an Indiana state prisoner. He was infracted for allegedly reaching through his cell bars and attempting to hit a guard. Bryan was denied witnesses at his disciplinary hearing, found guilty and sentenced to one year in segregation. Indiana provides for no state court review of prison disciplinary hearings. After exhausting his administrative remedies, Bryan filed a habeas corpus petition in federal court claiming his due process rights had been violated when he was denied witnesses at the hearing.

The district court expanded the record to include an affidavit from a prison nurse Bryan sought to call as a witness who stated she did not see the incident. The district court dismissed the petition, which the court of appeals then reversed and remanded.

The key issue faced by the appeals court was whether Bryan's claim was moot since he had already served the one year segregation sentence imposed at the hearing. In criminal cases a prisoner's release from prison does not moot a habeas petition unless there ...

BOP Can't Set Restitution

The court of appeals for the second circuit held that federal district courts may not delegate to the Bureau of Prisons (BOP) the responsibility to devise a restitution payment schedule pursuant to the Inmate Financial Responsibility Program (IFRP), 28 C.F.R. § 545.10. Daniel Mortimer was convicted of various felonies in federal court and sentenced to 101 months in prison and $28,333 in restitution. The district court ordered the restitution paid immediately, thus requiring Mortimer's participation in the IFRP. The appeals court vacated the sentence.

The court held that district courts may not delegate IFRP payment amounts and schedules to either the BOP or probation officers. This is a function the district court itself must carry out. In doing so the second circuit agreed with United States v. Miller, 77 F.3d 71 (4th Cir. 1996) and United States v. Porter, 41 F.3d 68 (2nd Cir. 1994). See: United States v. Mortimer, 94 F.3d 89 (2nd Cir. 1996).

Wisconsin RFRA Jewelry Ruling Affirmed

The court of appeals for the seventh circuit held that a prison policy prohibiting prisoners from wearing crucifixes and all other religious jewelry violated the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb. In the August, 1996, issue of PLN we reported Sasnett v. Sullivan, 908 F. Supp. 1429 (WD WI 1995) in which a federal district court struck down a WI DOC policy prohibiting prisoners from wearing any jewelry, including religious jewelry.

The state appealed and argued that the RFRA is unconstitutional because it exceeds the power given to congress by section 5 of the fourteenth amendment in order to enforce that amendment. They also argued that if the RFRA was constitutional, the jewelry ban satisfied the RFRA religious freedom requirements. The court of appeals rejected both arguments and affirmed the lower court ruling.

The court affirmed the constitutionality of the RFRA, giving a detailed discussion on congressional power to enact statutes that serve to buttress the constitution. Applying those principles to religious freedoms, the court noted that religions with strong support among influential people will be able to ensure no legislation is passed which inadvertently burdens the observances required or encouraged by that religion. Members of ...

Mississippi Detainees Awarded Damages in Disciplinary Suit

A federal district court in Mississippi held that the due process rights of two pre trial detainees were violated when they were placed in disciplinary segregation without a hearing. The court awarded each detainee $600 in damages. The court also taxed litigation costs against the defendants.

Percy Dean and Charles ...

Prisoners' Spouses Challenge Washington 35% Law

Past issues of PLN have detailed the litigation in Wright v. Riveland, the federal class action suit challenging the legality of RCW 72.09.480, a Washington state statute that mandates the seizure, without exceptions, of 35% of all funds sent to prisoners. On May 16, 1997, a class action suit was filed in King County (Seattle) superior court on behalf of the spouses of all prisoners in Washington challenging the legality of the law. The class representative, Suzanne Dean, is married to a prisoner. With 60,000 people under DOC jurisdiction and subject to the statute (13,000 are held in prison, the remainder are on "community supervision,") it is estimated that 10,000 people are married to prisoners and thus subject to the statute's provisions on the seizure of community funds.

The lawsuit claims that RCW 72.09.480 violates the federal constitutional rights of the plaintiffs by denying them equal protection of law by illegally discriminating between class members and all other married spouses in the state who are not subject to having 35% of community property funds seized by the state if they share the funds with their spouse. The plaintiffs' right to due process ...

Massachusetts Prisoners Awarded Back Pay

A Mass. superior court judge ruled the state owes 2,253 current and former state prisoners about $1 million because they were not given a pay raise mandated by DOC regulations.

In April 1991, new DOC regulations were issued that raised the top rate for full-time workers from $1 to ...

$7,500 Awarded in Guard Beating

A federal district court in Delaware awarded a prisoner $7,500 in damages after ruling the prisoner was beaten without provocation by a prison guard. Augustus Evans, a Delaware state prisoner was in segregation and repeatedly asked guards to turn off his cell light. When they refused he became loud ...

 

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