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Prison Legal News: August, 1997

Issue PDF
Volume 8, Number 8

In this issue:

  1. Supreme Court Upholds Kansas Civil Commitment Law (p 1)
  2. Washington Prison Official Tagged for Fire (p 3)
  3. From the Editor (p 4)
  4. No P.C. for Informants (p 4)
  5. Disputed Facts Require Trial in Beating Case (p 5)
  6. Notes from the Unrepenitentiary (p 5)
  7. Washington Prison Food Factory Cooks Up Controversy (p 6)
  8. Publications Reviews (p 7)
  9. Habeas and 1983 Remedy for Disciplinary Hearings Discussed (p 8)
  10. Florida Paradox of Prisons, Politics and Profits (p 9)
  11. Washington Prison Legislation (p 9)
  12. Prisoner's Death Throws Utah DOC into Turmoil (p 10)
  13. Kansas Ad Seg Hearing Required (p 11)
  14. AA Probation Requirement Violates Establishment Clause (p 11)
  15. DC Circuit Creates New Immunity Rule: Supreme Court Grants Review (p 12)
  16. Punitive Segregation May Violate Due Process (p 12)
  17. District Courts Responsible for PLRA Appeal Fees (p 13)
  18. PLRA Filing Fees Don't Apply to Habeas (p 13)
  19. PLRA 'Physical Injury' Requirement Affirmed (p 13)
  20. Fourth Circuit Affirms PLRA IFP Provisions in Parole Suit (p 13)
  21. Fifth Circuit Applies Three Strikes Provision (p 13)
  22. PLRA Physical Injury Requirement Defined (p 14)
  23. Con Artist Dupes 'America's Toughest Sheriff' (p 15)
  24. Un-Happy Meal Provider Pulls Out of Kansas Prisons (p 15)
  25. North Carolina Population Limit Modification Affirmed (p 15)
  26. Jail Medical Fees Upheld by Fifth Circuit (p 16)
  27. Florida Ban on Prisoner Legal Help Struck Down (p 16)
  28. Administrative Exhaustion Required for Disc. Habeas (p 17)
  29. Florida Supreme Court Strikes Down Gain Time Loss (p 17)
  30. Failure to Treat Broken Hand States Claim (p 17)
  31. Michigan DOC Held in Contempt in Court Access Case (p 18)
  32. No Immunity for Denial of Exercise (p 18)
  33. Utah Supreme Court Vacates Damage Reduction in Prison Suit (p 19)
  34. Washington Cost Bill PI Vacated (p 19)
  35. News in Brief (p 20)
  36. Retaliation Verdict Reversed (p 21)
  37. Res Judicata No Bar to Damages in Illegal Sentence (p 22)
  38. Medical Malpractice Instruction Warranted in Eighth Amendment Suit (p 22)
  39. No Private Cause of Action Under BOP Statute (p 23)
  40. California Prison Focus (p 23)

Supreme Court Upholds Kansas Civil Commitment Law

In a chilling 5-4 ruling, the U.S. supreme court reversed a Kansas supreme court which invalidated the Kansas Sexually Violent Predator Act after holding that the Act ("civil commitment" of "sexually violent predators" who suffer from a "mental abnormality" or 'personality disorder") violates substantive due process by thinly disguising ...

Washington Prison Official Tagged for Fire

In the summer of 1996, a wildfire consumed 3,000 acres and destroyed eight homes in a sparsely developed area about five miles north of the Airway Heights Correctional Center. Now the state Department of Natural Resources (DNR) has presented Delbert and LaVaughn Nuner a $1.2 million bill to ...

From the Editor

Lest anyone think that the only time we show our appreciation for PLN supporters is when they die, we are very pleased to announce that PLN columnist John Midgley was awarded the 1997 William O. Douglas Award by the Washington Association of Criminal Defense Lawyers (WACDL) on June 13, 1997 ...

No P.C. for Informants

The court of appeals for the eighth circuit held prison officials were not liable when a prison informant was assaulted after being evicted from protective custody (PC). Missouri prisoner Ricky Davis is described by the court as "a prison informant." Davis was placed in PC in 1991 due to having ...

Disputed Facts Require Trial in Beating Case

The court of appeals for the seventh circuit held that a district court had improperly dismissed a pretrial detainees' excessive force claim. Reginold Dorsey was an Indiana pretrial detainee who filed suit claiming jail guards beat him without provocation during a cell transfer after his cellmates accused him of being ...

Notes from the Unrepenitentiary

GERONIMO IS FREE! Geronimo ji Jaga (Pratt), his family, the Black community, New Afrikan Independence Movement, and thousands of activists, radicals, and revolutionaries have waited 27 years to say those joyful words. Women here at FCI Dublin (California) celebrated Geronimo's release and exclaimed over the years of suffering and ...

Washington Prison Food Factory Cooks Up Controversy

The idea was peddled to the Washington state legislature as a scheme to save tax dollars: a giant prison food factory manufacturing institutional meals on a vast scale for sale to other prisons. "Build it," they said.

When the $3.5 million "Correctional Industries" food factory opened in 1995 at ...

Publications Reviews

PLN is part of the prison press in the literal sense of the word. In addition to PLN there are many other newsletters and journals out there that carry news and information that complements what we do. In many cases their area of interest or focus is a lot narrower ...

Habeas and 1983 Remedy for Disciplinary Hearings Discussed

The court of appeals for the seventh circuit discussed the application of habeas corpus and section 1983 challenges to prison disciplinary hearings. This is an extremely convoluted and confusing ruling, which the court acknowledged at the outset by noting that the parties could not even agree on the spelling of ...

Florida Paradox of Prisons, Politics and Profits

For the past three years the Florida state legislature has surfed the get-tough wave, enacting laws to clamp down on Florida's 65,000 state prisoners. They have enacted laws to remove weights and recreation equipment, eliminate funding for prison TV sets, and were quick to follow Alabama's lead ...

Washington Prison Legislation

The Washington state legislature ended its 1997 session by passing very few laws that directly impact Washington prisoners. Laws that were signed into law were:

ISRB: House Bill 1646 extended the existence of the Indeterminate Sentence Review Board (ISRB, AKA the parole board) another ten years until 2008. The ISRB ...

Prisoner's Death Throws Utah DOC into Turmoil

On March 19, 1997, Michael Valent--a schizophrenic prisoner housed in the mental health wing of a Utah prison--died while confined in a "restraining chair." Valent was strapped into the device for 16 hours without a break, his arms and legs immobilized. Preliminary findings indicate the 29-year-old prisoner died when blood ...

Kansas Ad Seg Hearing Required

The supreme court of Kansas held that a prisoner was entitled to a hearing to determine if three years in administrative segregation (ad seg) has become a prohibited punishment. Rodney Murphy, a Kansas state prisoner, was placed in ad seg in 1993 for investigation after a prison rebellion in which ...

AA Probation Requirement Violates Establishment Clause

The court of appeals for the second circuit affirmed a lower court ruling that a probation condition requiring an atheist probationer to attend Alcoholics Anonymous (AA) meetings violated the establishment clause of the first amendment. In the July, 1995, issue of PLN we reported Warner v. Orange County Dept. of ...

DC Circuit Creates New Immunity Rule: Supreme Court Grants Review

The court of appeals for the DC circuit, on rehearing en banc, overruled prior circuit precedent by holding that a civil rights plaintiff is no longer required to plead a government official's unconstitutional intent with specific discernible facts or offers of proof that constitute direct, as opposed to merely ...

Punitive Segregation May Violate Due Process

A federal district court in New York held that New York state prisoners have a due process liberty interest in remaining free from punitive segregation. In a very brief ruling the court denied prison officials' Fed.R.Civ.P. 12(c) motion for a judgment on the pleadings, holding that ...

District Courts Responsible for PLRA Appeal Fees

The court of appeals for the fifth circuit held that a district court erred when it refused to rule on a prisoner's motion to proceed on appeal with In Forma Pauperis (IFP) status, i.e., without pre-paying the filing fees. Prisoners seeking "to process IFP on appeal must obtain ...

PLRA Filing Fees Don't Apply to Habeas

The court of appeals for the Fourth and District of Columbia circuits held that the filing fee provisions of the PLRA do not apply to habeas corpus petitions filed by prisoners. These courts agreed with all other circuits, the second, third, fifth, sixth, seventh, ninth, tenth and eleventh, that have ...

PLRA 'Physical Injury' Requirement Affirmed

In the first published case on this issue, a federal district court in Indiana held that a provision of the Prison Litigation Reform Act (PLRA), requiring "physical injury" before a prisoner's lawsuit can proceed, mandated dismissal of prisoners' claim that they were exposed to asbestos.

When the PLRA was ...

Fourth Circuit Affirms PLRA IFP Provisions in Parole Suit

The court of appeals for the fourth circuit held that changes to 28 U.S.C. § 1915 by the Prison Litigation Reform Act (PLRA), which requires prisoners to pay full filing fees in all civil litigation, are constitutional. Gary Roller, a South Carolina prisoner, filed suit in 1990 challenging that ...

Fifth Circuit Applies Three Strikes Provision

The court of appeals for the fifth circuit held that 28 U.S.C. § 1915(g), which does not allow IFP status to prisoners who have had three or more suits dismissed as frivolous or for failing to state a claim, is constitutional. The court rejected arguments that § 1915(g ...

PLRA Physical Injury Requirement Defined

The court of appeals for the fifth circuit held that the Prison Litigation Reform Act's (PLRA) physical injury requirement for prisoners seeking money damages is the same as the standard used in determining eighth amendment claims. This ruling is significant because it is the first circuit court ruling on ...

Con Artist Dupes 'America's Toughest Sheriff'

Sheriff Joe Arpaio who touts himself as "America's toughest sheriff" is apparently not America's smartest sheriff.

Reputed flimflam man David Michael Pecard, 34, wooed his way into the sheriff's heart with empty promises of helicopters, tents and other military surplus. Pecard, an army Sgt. and military policeman ...

Un-Happy Meal Provider Pulls Out of Kansas Prisons

In the March '97 Reader Mail section we printed a letter from a Kansas prisoner asking for information about a North Carolina corporation, Canteen Correctional Services, which had a contract to serve (un-happy) meals to (very un-happy) Kansas prisoners. An alert reader sent us a clipping from The Capital Journal ...

North Carolina Population Limit Modification Affirmed

The court of appeals for the fourth circuit affirmed modification of a consent decree that governed conditions in North Carolina state prisons. In the February, 1995, issue of PLN we reported Small v. Hunt, 858 F. Supp. 510 (ED NC 1994) which modified a consent decree governing population limits at ...

Jail Medical Fees Upheld by Fifth Circuit

The court of appeals for the fifth circuit, in two consolidated cases, upheld the manner in which fees were collected from indigent prisoners who sought medical care.  This case is more important for what it doesn't decide than for what it does.  The ruling in these two cases involve ...

Florida Ban on Prisoner Legal Help Struck Down

A state district court of appeals held that Florida DOC rules were unconstitutional to the extent that they purport to prohibit prisoners in disciplinary confinement from filing federal petitions seeking habeas corpus, or civil rights complaints alleging violations of federally protected rights. The appeals court reversed a lower court order ...

Administrative Exhaustion Required for Disc. Habeas

The court of appeals for the third circuit held that federal prisoners who challenge disciplinary hearings via habeas corpus must first exhaust their administrative remedies within the Bureau of Prisons (BOP) and failure to do so will result in procedural default. Phillip Moscato, a federal prisoner, was infracted and later ...

Florida Supreme Court Strikes Down Gain Time Loss

The Florida supreme court held that a DOC Policy denying gain time to prisoners eligible to receive it at the time of their conviction violated the ex post facto clauses of the Florida and United States constitutions. In 1996 the Florida DOC amended Florida Administrative Code (FAC) rule 33-11.0065 ...

Failure to Treat Broken Hand States Claim

A federal district court in Illinois held that prison doctors' failure to treat a broken hand for nine days stated an eighth amendment claim and an Illinois state law requiring that an affidavit be filed in medical malpractice cases did not apply to federal civil rights cases. Ricardo Senisais, an ...

Michigan DOC Held in Contempt in Court Access Case

A federal district court in Michigan found the Michigan DOC to be in contempt of previous court orders and a consent decree governing court access and programming opportunities for women prisoners. The case began as a class action suit filed by women prisoners in 1977. Since then there have been ...

No Immunity for Denial of Exercise

The court of appeals for the second circuit held that prison officials were not entitled to qualified immunity from money damages for denying a prisoner in medical segregation all opportunity for exercise. Bobby Williams is a New York state prisoner who refused to submit to a Tuberculosis test because he ...

Utah Supreme Court Vacates Damage Reduction in Prison Suit

The Utah supreme court held that prisoners can sue for money damages for violation of their state constitutional rights, a landmark ruling for Utah prisoners. Roger Bott, a Utah state prisoner, sought medical care when he began experiencing vision problems. Prison medical staff delayed treatment by an optometrist for several ...

Washington Cost Bill PI Vacated

In the February, 1996, issue of PLN we reported Richey v. Nerup, the unpublished ruling by federal judge Quakenbush in Spokane, WA who entered a Preliminary Injunction (PI) on September 14, 1995, enjoining the Washington DOC from seizing funds from prisoner litigants assessed cost bills in unsuccessful civil rights actions ...

News in Brief

AL: On June 11, 1997, former state governor Guy Hunt was pardoned by the state parole board of his 1993 convictions for looting his tax exempt 1987 inaugural fund of $200,000 which he used to buy cattle and pay personal expenses. Hunt had been sentenced to five years probation ...

Retaliation Verdict Reversed

In the February, 1996, issue of PLN we reported Sisneros v. Nix, 884 F. Supp. 1313 (D IA 1995), where a district court in Iowa awarded a prisoner $7,639.70 in damages after finding the prisoner had been subjected to a retaliatory prison transfer after filing suit and grievances ...

Res Judicata No Bar to Damages in Illegal Sentence

In the May and July, 1995, issues of PLN we reported Rooding v. Peters, 876 F. Supp. 946 (ND IL 1994) in which a district court held that res judicata prevented a prisoner from filing suit in federal court for money damages after he had won a writ of mandamus ...

Medical Malpractice Instruction Warranted in Eighth Amendment Suit

The court of appeals for the second circuit held that in some cases medical malpractice may constitute an eighth amendment violation and a failure to instruct a jury accordingly is reversible error. William Hathaway, a New York state prisoner, filed suit claiming prison doctors violated his eighth amendment right to ...

No Private Cause of Action Under BOP Statute

The court of appeals for the District of Columbia circuit held that 18 U.S.C. § 4042 does not create a private cause of action for constitutional violations against Bureau of Prisons (BOP) officials. Section 4042 sets forth the BOP's duty to provide care and protection to the prisoners ...

California Prison Focus

Prison Focus is the quarterly publication of California Prison Focus, a nonprofit organization that works with and on behalf of prisoners in California's control units. Each issue contains reports on Pelican Bay State Prison, Corcoran State Prison, Valley State Prison for Women and other prisons. Other sections include Current ...