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Prisoner Education Guide

Prison Legal News: August, 1997

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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 a punitive criminal proceeding resulting in an affirmative restraint of liberty as a "civil" procedure.

Washington state was the first to pass the so-called civil commitment law. PLN reported the passage of that pioneering legislation in its July, 1990, issue, aptly titled "Fascism, Another Step Nearer." We have provided extensive coverage of the proliferation of similar statutes in other states (including Kansas, which like several other states enacted a virtual "clone" of the original Washington civil commitment law) and the numerous lower rulings stemming from challenges to such statutes. In seven years, PLN has published 22 articles on the topic, so will not go into detail here as to the construction of the civil commitment statute itself. For background, refer to PLN's annual indexes and relevant back issue of PLN.

Most recently, in the August, 1996, issue of PLN, we reported the supreme court granting certiorari in Hendricks v ...

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 pay for the cost of extinguishing the wildfire.

Delbert Nuner, who is employed at the Airway Heights prison, and his wife avoided reporters. A young man who answered the door at the couple's home told reporters they didn't want to talk about the fire.

"We'll just let the attorneys and lawyers talk about it and handle it that way," he told reporters. "They don't want everybody to find out about this."

According to a 122-page investigation report released by the DNR, the 1996 wildfire was ignited by smoldering debris which blew out of a 55-gallon drum into a patch of dry grass behind the couple's home. The resulting fire burned out of control for nearly four days. More than 570 firefighters from throughout Washington were mobilized to battle the blaze, which was whipped by hot winds exceeding 30 mph.

Nuner and his wife, who local ...

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. The Douglas Award, WACDL's most prestigious award, is given in recognition of extraordinary courage and commitment, and outstanding achievement, in the criminal justice system.

In nominating John for the award a WACDL member wrote: "For more than 20 years John has tirelessly fought for the rights of prisoners, including those on death row. In an era in which prisoners' very access to the courts is coming under unprecedented legislative and judicial attack, John is a national leader in the fight to preserve gains already won and, where possible, to win new victories."

Since February, 1996, John has been regional director of the Tacoma office of Columbia Legal Services. Except for a brief period in private practice (1984-89), he was with Evergreen Legal Services from 1975 through January, 1996. He has represented prisoners, juveniles and mentally ill detainees. He has also been the chair of the WACDL Corrections Committee since ...

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 enemies in the prison's general population. In 1994 Davis was returned to population because he could not name any enemies in general population. Davis tried to stay in PC claiming friends of his enemies might harm him. After a classification hearing Davis was returned to population, shortly after which he was struck on the head and seriously injured by an unknown attacker. Davis filed suit claiming his eighth amendment right to personal safety was violated. The district court dismissed the suit.

The appeals court affirmed. The court noted prison officials have a duty to protect prisoners from violence at the hands of other prisoners. In this case they were not liable because there was no solid evidence of an identifiable serious risk to Davis's safety. The defendants were not indifferent to Davis's safety primarily because they provided a classification hearing prior to evicting Davis from PC. See ...

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 a snitch. The guards denied any improper use of force and the district court granted summary judgment in their favor, dismissing the case. See: Dorsey v. St. Joseph County Jail Officials, 910 F. Supp. 1343 (ND IN 1995).

The court of appeals reversed and remanded, holding that a genuine issue of material fact existed as to whether the guards' use of force was justified. The court expressed no opinion as to the merits of Dorsey's claims, it simply held that a trial was required to resolve the factual dispute raised by the starkly differing accounts of the same events. See: Dorsey v. St. Joseph County Jail Officials, 98 F.3d 1527 (7th Cir. 1996).

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 struggle the u.s. government forced him to endure, even long after his innocence had been clearly established. Every woman I spoke to on the compound expressed the hope that Geronimo would be allowed to recover, rest and rejoin his family and community, and that D.A. Garcetti would finally admit defeat and drop the charges.

Geronimo himself began his life outside by stating his determination to work for the freedom of the rest of the 150 or more political prisoners held in u.s. prisons. His immediate expression of solidarity didn't surprise any of us, because Geronimo has always exemplified constancy in the struggle and love and support for all comrades. While Geronimo's case doesn't spell any guarantee of success for other political prisoners in our fight for release, it does (like the Attica Brothers' verdict in NY State Court) show what can be achieved with ...

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 Airway Heights prison (AHCC), near Spokane, WA, the operation was supposed to crank out a thousand meals an hour. Officials predicted the high-tech kitchen would soon prepare entrees served to most of the state's 13,000-plus prisoners, thus trimming prison food budgets statewide. But the hyperbole soon turned to bitter controversy.

Partly in response to a barrage of complaints, the state health department inspected the AHCC food factory on May 14, 1996. Health inspectors cited numerous food-handling violations and found tons of rotten chicken on the premises.

Three weeks later the DOC conducted an audit of its own, bringing in food service managers from three other prisons. The audit was prompted by the Dept. of Health inspection and a rising tide of prisoner complaints statewide about the AHCC food product.

"The Audit Team objected to the use of tainted chicken and after much discussion ... 250 pounds were discarded. We ...

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 or more specific, in others it takes a different format. We urge our readers to support the alternative press. The corporate media denies the existence of political prisoners in the U.S. yet in reality the U.S. holds well over 100 political prisoners and prisoners of war. Below are several magazines and newsletters which cover political prisoners in the U.S. Help break the circle of silence on prison issues!

Pro-Family Advocates of Washington (PFA-W) publishes a bimonthly 8 page newsletter aimed at preserving the legal and moral rights of the families and children of Washington state prisoners. Recent issues have focused on the telephone kickbacks received by the WA DOC, family visiting, legislation and more. PFA-W also holds regular meetings. They urgently need donations to continue their work. Subscriptions are $10 a year. Contact: PFA-W, 221 S.W. 153rd St, Suite 244, Seattle, WA 98166-2398. (206) 433-1651.

Resistance ...

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 the plaintiff's name, much less the substantive issues presented for appellate review.

James Clayton-El, an Illinois state prisoner, was infracted for fighting in 1986. He did not receive advance notice of the hearing and when he appeared at the hearing he was unable to present any evidence beyond a denial of the charges. He was found guilty and sentenced to a one year loss of good time and a year in segregation.

Clayton-El filed suit under § 1983 in federal court claiming his right to due process was violated when he was not served with advance notice of the disciplinary hearing. He sought only money damages and a declaratory judgment that the hearing was unconstitutional. He did not seek restoration of his good time credits.

The district court stayed the suit and ordered Clayton-El to pursue a state habeas action because if Clayton-El won his § 1983 claims it could have ...

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 in resurrecting chain gangs.

Though state politicians garnered much acclaim from "No TVs in prison" sound bites two years ago, the reality of the get tough measures doesn't jibe with the political rhetoric. The state is forbidden to spend money on new TV sets for prisons, but prisoners still watch old sets that the state pays to have repaired.

Florida's deputy corrections secretary, William Thurber, acknowledges the department's interpretation has not always matched what lawmakers say they had in mind. But he said he sees the department's job as complying with the law while keeping safety risks to a minimum, adding that TVs are one of the cheapest methods he knows of keeping prisoners occupied, referring to them a "management tool."

New state prisons also manage to escape the letter of the law on televisions and weights. Though they cannot buy new equipment, prison officials point ...

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 was initially slated to cease its existence in 1988 after Washington enacted determinate sentencing. Since then it has obtained several extensions to keep its grip on those prisoners convicted before 1984. The bill passed both houses of the legislature unanimously and amended RCW 9.95.0011 and 9.95.003.

Disclosure of HIV Status: Substitute House Bill 1605 was signed into law which allows medical personnel to inform jail and prison employees exposed to a prisoner's bodily fluids whether or not the prisoner is infected with HIV or any other fluid borne disease. The DOC and county jails were ordered to develop policies for distribution of communicable disease prevention guidelines to their staff.

35% Statute: Senate Bill 5283 was passed. Its stated purpose was to "clarify" RCW 72.09.480, the state statute which mandates the seizure of 35% of all funds sent to prisoners from sources outside the ...

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 clots broke loose after they formed in his legs, lodging in a lung. Blood clots may form in extremities when muscle movement is restricted for long periods.

About a week after Valent's death, the American Civil Liberties Union sent a letter to Utah state officials requesting a moratorium on use of the "restraining chair" by prison officials.

The prison's response was blunt. "It ain't going to happen," said DOC spokesman Jack Ford. "We've got people today who are trying to kill themselves. We will use the chair as needed, when necessary."

The ACLU sent the letter to Gov. Michael Leavitt, then Corrections Director O. Lane McCotter, Utah Atty. Gen. Jan Graham and others. The ACLU told Utah officials that use of the chair to punish prisoners is cruel and unusual punishment. The letter asked prison officials to contact the ACLU within a week "so that we ...

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 a guard was killed. After almost a year in ad seg Murphy filed a petition for habeas corpus. The trial court ruled in his favor finding that after a year in ad seg no charges had been filed against Murphy while 12 others had been charged in the guard's death. The court found several due process violations and ordered Murphy's immediate release into general population (GP).

The state supreme court affirmed in part and reversed in part, holding that the lower court erred in finding the prison warden lacked the authority to hold Murphy in ad seg after Murphy had ceased all threatening behavior. The court relied on Sandin v. Connor, 115 S.Ct. 2293 (1995) to hold that Kansas prisoners have no liberty interest in remaining in GP, thus, the trial court erred in holding the ad seg review board was required to inform Murphy of all ...

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 circumstantial evidence of the intent. Additionally, the court held that allegations that a prison official misdelivered a box of a prisoner's legal files in retaliation for the prisoner's communication with the press, stated a First Amendment claim.

In 1989 Leonard Crawford-El, a DC prisoner serving life described by the court as a chronic litigant, filed suit under 42 U.S.C. section 1983 claiming denial of access to the courts and due process, in addition to the retaliation claim, plus a pendant DC law claim for conversion. The district court granted the defendant's motion to dismiss all claims in Crawford-El's fourth amended complaint, applying the DC circuit's unique "direct-evidence" pleading requirement to the retaliation claim.

On appeal, a panel affirmed the dismissal of the court access and due process claims dismissal, but suggested en banc review of the retaliation claim. The full court then unanimously ...

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 Raymond Wynn had stated a due process claim for being placed in segregation for 90 days.

The defendants unsuccessfully argued that since Sandin v. Connor, 115 S.Ct. 2293 (1995) [PLN, Aug. 1995] was decided, New York prisoners have no due process right to be free from disciplinary segregation. The court held that under Frazier v. Coughlin, 81 F.3d 313 (2nd Cir. 1996) Wynn had stated a claim. Readers should note that this ruling goes against most rulings from federal courts in New York, which tend to hold that punitive segregation alone, without a loss of good time, does not state a federal due process claim after Sandin. See: Wynn v. Uhler, 941 F. Supp. 28 (ND NY 1996).

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 leave to so proceed despite proceeding IFP in the district court." "We hold that the financial screening and assessment procedures of the PLRA regarding appellate filing fees are to be conducted by the district courts. When a district court grants a prisoner leave to proceed IFP on appeal, the district court must assess the initial partial filing fee as directed by the PLRA." The case was remanded for the district court to rule on the plaintiff's motion to proceed IFP on appeal. The appeals court did not state whether prisoners could appeal denial of IFP status as they could before the PLRA's enactment. See: Morgan v. Haro, 112 F.3d 788 (5th Cir. 1997).

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 considered this question and ruled the same. The fourth circuit ruling contained a detailed discussion of the PLRA's legislative history and intent. See: Smith v. Angelone, 111 F.3d 1126 (4th Cir. 1997) and United States v. Levi, 111 F.3d 955 (DC Cir. 1997).

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 enacted it created 42 U.S.C. § 1997e(e) which states: "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." In 1993 a group of Indiana prisoners filed a class action suit claiming their eighth amendment rights were violated when prison officials deliberately exposed them to asbestos while they worked in a prison kitchen. The prisoners did not seek injunctive relief and did not claim the asbestos had caused them any physical illness yet. The defendants sought dismissal of the complaint as a judgment on the pleadings, which the court granted.

The court gave an extensive discussion to injury requirements in § 1983 actions as well as the PLRA's "physical injury" requirement. The court noted some courts have held that mere exposure to asbestos ...

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 state's parole law which retroactively applied changes so that prisoners convicted of violent offenses would have parole hearings every two years after an initial parole determination, rather than every year as was the case when they were convicted. It also required a two thirds majority to authorize parole for violent offenders rather than a simple majority. In Roller v. Cavanaugh, 984 F.2d 120 (4th Cir. 1993) [PLN. Aug. 1993] the appeals court held Roller was entitled to declaratory relief, which the district court duly granted, as the law violated the ex post facto clause.

The state later moved to modify the judgment arguing that California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597 (1995) [PLN, July, 1995] held that changing the frequency of parole hearings did not implicate the ex post facto clause. The court agreed and ruled in the state's favor ...

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) violated prisoners' right of access to the courts because the prisoners can still file suits, as long as they pay the filing fee. The court, in part, claimed this case did not involve a "fundamental interest", such as the deprivation of liberty, divorce actions, etc., thus the court was not obligated to waive the filing fee. The court duly noted the plaintiff in this case, Arthur Carson, had already had many cases dismissed as being frivolous. "Carson's own lengthy litigation history is the strongest possible argument for the PLRA's rationality."

The court also held the PLRA does not apply to habeas corpus actions and discussed when habeas petitions should be construed as § 1983 actions. See: Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997).

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 any aspect of 42 U.S.C. § 1997e(e), which states: "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury."

Lee Siglar, a Texas state prisoner, filed suit claiming a prison guard physically and verbally abused him during a pat search. Siglar claimed the guard, without provocation, twisted his arm and ear. His ear was sore and bruised for three days but he did not seek medical treatment. The district court dismissed the suit as frivolous because verbal abuse by guards does not violate the constitution and the lack of qualifying physical injury was barred by section 1997e(e). The court of appeals affirmed.

In Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995 (1992) the supreme court set forth the issue ...

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, was introduced to Arpaio by Lt. Col. David Lynch who heads the army recruiting office in Phoenix, Arizona. Arpaio gave Pecard an office down the hall from his and carte blanche access to the records division, business offices and detention units of the entire Maricopa county jail system.

On several occasions Pecard flashed a phony badge then checked women out of their cells and sexually fondled and abused them. He went unchecked until a woman prisoner complained to her husband at a visit how she had been taken out of the jail to a side street and molested by Pecard.

Pecard was subsequently jailed for forgery, fraudulent schemes, theft and sexual assault allegations from several women. In his possession were various badges and ID's which falsely identified him as a sheriff's deputy, an FBI agent, a U.S. marshall and a Defense Department investigator. Records had been copied ...

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 (presumably a Kansas newspaper; there was no date on the clipping, though the letter was postmarked May 7, 1997) in which it was reported that Canteen (a division of Compass Group, USA) terminated its contract.

"Conditions of the contract signed with Compass Group provided for a one-year agreement with renewal options," said Kansas DOC secretary Charles E. Simmons. "Compass Group initiated recent discussions with officials from KDOC to terminate the food service contract, which resulted in a mutually agreeable decision to conclude that association."

There were "disturbances" at several Kansas prisons, reportedly caused by anger over the poor food service. Simmons told legislative committees after the uprisings that the food service contractor had "made some mistakes," like failing to provide ketchup and mustard at meals where hamburgers were served or syrup at meals where pancakes were served, and running out of the main menu item before all prisoners had been ...

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 49 minimum and medium security prisons. The consent decree required that each prisoner, all housed in dormitory style prisons, be given 50 square feet of space in each dormitory. The decree also required that triple bunks be eliminated, that day room space be provided and other living conditions be met. By 1993 the state had complied with most of the decree's requirements except the 50 square foot per prisoner requirement. The state filed a motion to modify pursuant to Fed.R.Civ.P. 60 to allow it to house prisoners in dormitories at 130-140% of their rated capacities.

The district court granted the motion and modified the decree. The appeals court affirmed. The appeals court noted that the Prison Litigation Reform Act (PLRA) allows for the termination of population limits but it did not address the PLRA because the decree in this case was modified under pre-PLRA standards.

The ...

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 solely the issue of due process to be afforded prisoners who claim they were incorrectly charged a fee for medical services.  Under Tex.Code Crim.Proc.Ann. Art 104-002(d) jail prisoners can be charged for seeking medical care.  Two indigent prisoners in the Harris County (Houston) jail in Texas sought medical care and were duly assessed a $3 fee which was seized from their jail accounts with no type of hearing or process.  Both prisoners filed suit claiming their money was wrongfully seized because under jail policy indigents were not supposed to be charged.  One suit was dismissed by the district court.  The other case, DelVerne v. Klevenhagen, 888 F. Supp. 64 (SD TX 1995) [PLN, March, 1996] resulted in a bench trial and a verdict in Delverne's favor finding that his due process rights had been violated.  The court awarded him $3 in damages.

The appeals court ...

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 of summary judgment in favor of the FDOC.

Traditionally, the FDOC structures its policies and procedures to obstruct prisoner access to courts. Consistent with this philosophy, Fla. Admin. Code rules 33-3.005(5) and 33-3.0084(l)(i)l prohibit prisoners in punitive segregation from preparing legal documents or legal mail, having access to their personal legal papers, or receiving materials or assistance from prison law libraries, except where there is a legal deadline, to test the legality or conditions of the segregation or once segregation has extended beyond 60 consecutive days.

On appeal the FDOC conceded that these rules prohibited virtually all access to the courts for prisoners in disciplinary confinement. However, they argued that these rules struck a reasonable balance between a prisoner's right to court access and the DOC's penological interest in controlling prisoner behavior and ensuring safety within the prison system.

In a well ...

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 found guilty at a disciplinary hearing where he lost 45 days of good time among other sanctions. He timely appealed the infraction to the warden and the BOP's regional director but his appeal to the BOP's central office was filed 16 days after the 30 day limit. Moscato then filed a petition for habeas corpus claiming his due process rights were violated by the denial of witnesses at the hearing. He sought restoration of his good time credits. The district court dismissed the petition on the merits.

The court of appeals affirmed dismissal but on different grounds. "Federal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241 ... We believe that Moscato's failure to satisfy the procedural rules of the Bureau's administrative process constitutes a procedural default."

The court agreed with Sanchez v. Miller, 792 F ...

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 to retroactively deny prisoners convicted of sex or violent offenses who had 85% or less of their sentences remaining, the ability to earn incentive gain time of 20 days per month. The rule change came, in part, to allow Florida to receive federal prison funds under the 1994 crime bill. See: December, 1994, PLN.

Richard Gwong, a Florida prisoner serving a 22 year sentence for second degree murder, filed a writ of mandamus asking the Florida supreme court to order the DOC to make incentive gain time available to those prisoners who were eligible to receive it at the time of their convictions whom the rule change affected. More than 20,000 Florida prisoners were affected by the rule change.

The court held that the administrative change violated the ex post facto clause because it increased the punishment on prisoners who had already been convicted of the crime. The court ...

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 Illinois state prisoner, slipped, fell and broke his hand. He was made to wait nine days before being x-rayed, diagnosed and having his hand set in a cast. Senisais filed suit claiming that the delay in treatment violated his eighth amendment right to medical care. The state filed a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), which the court denied.

Prisoners have a right to medical care, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976). The court noted that a broken hand "undoubtedly constitutes a serious injury" based on seventh circuit precedent. See: Murphy v. Walker, 51 F.3d 714 (7th Cir. 1995). "... to establish a constitutional violation, a plaintiff must demonstrate that he suffered 'substantial harm' as a result of a delay in receiving medical care." The court held that in this case a ...

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 13 published opinions in the case as it works its way up and down the court system. PLN has duly reported all rulings in this case since we started publishing in 1990. This is our sixth article in Glover v. Johnson and it seems no closer to resolution than in any of the previous rulings.

The reason for so much litigation has been the state's adamant refusal to comply with court orders, consent decrees and their own remedial plans, coupled with the unwillingness of the court to enforce its orders. This ruling is one for contempt because the defendant prison officials have refused to abide by prior orders and decrees which long ago established their liability and responsibilities. This is also one of the first published court access rulings to discuss Lewis v. Casey, 116 S.Ct. 2174 (1996), but not being a ruling on the merits it will ...

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 had suffered medical complications after taking such tests in the past. As a result, he was placed in "medical keeplock" and allowed out of his cell for only one ten minute shower a week, he was denied all opportunity for exercise. After 589 days in medical keeplock (which despite its name, the court points out, served no medical purpose whatsoever) Williams submitted to a TB test and was released from segregation. Williams then filed suit seeking money damages for the inhumane conditions of confinement he had been subjected to. The district court dismissed the case, holding that prison officials were entitled to qualified immunity from damages. See: Williams v. Griefinger, 918 F. Supp. 91 (SD NY 1996).

The court of appeals reversed and remanded. At the outset, the court noted that NY DOCS medical segregation program and its conditions of confinement had already been the subject of litigation in Jolly ...

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. The court ruled that the cost bills were sought by the attorney generals office in retaliation for prisoners exercising their right of access to the courts and was designed to chill that right. The court also held the DOC lacked statutory authority to seize prisoner funds to satisfy cost bills.

The DOC defendants appealed and the court of appeals for the ninth circuit, in an unpublished ruling, vacated that portion of the PI concerning the lack of statutory authority for the seizure of funds involving cost bills because on June 7, 1996, the Washington legislature enacted SSB 6315 which amended RCW 72.09.450 to allow the DOC to seize prisoners' funds to satisfy cost bills. [See PLN, July, 1996.]

"The district court's injunction only prevented the department from freezing or withdrawing funds without statutory or court ordered authority. The recent enactment by the Washington legislature, signed by the ...

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, 1,000 hours of community service and a $212,000 fine, which he hasn't paid. Two of the three parole board members were appointed by Hunt to their $66,000 a year jobs. The third owned buildings he leased to state liquor stores under Hunt's administration.

AR: In March, 1997, governor Mike Huckabee signed a law authorizing high voltage electric fences around all medium and maximum security prisons in the state. The fences are supposed to reduce escapes and lower tower staffing costs.

CA: In March, 1997, Santa Clara County prosecutors charged Thomas Mozeliak with failing to register as a convicted sex offender. If convicted Mozeliak faces a life sentences as a '3 strikes" offender.

CA: Film actor Robert Downey paid several hundred thousand dollars in premiums for "incarceration insurance" to allow him to star in the big budget film "U.S. Marshalls" following his recent convictions on ...

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. The court of appeals for the eighth circuit reversed and remanded the case for dismissal.

Alfonso Sisneros was transferred from Arizona to the Iowa DOC. After filing two lawsuits and numerous administrative grievances, Iowa prison officials transferred him back to Arizona. Sisneros filed suit and the district court granted summary judgment in his favor, and awarded damages, finding that he had been retaliated against for exercising his right of access to the courts. The court granted summary judgment to prison officials on Sisneros' claim that a prison mail policy requiring all letters be in English was unconstitutional.

The appeals court reversed the retaliation claim and affirmed the district court on all counts. The court begins by noting that "Prison officials may not punish an inmate because he exercises his constitutional right of access to the courts .... This prohibition against retaliatory punishment applies to transfers between prisons in a single state ...

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 ordering his release from an unlawful sentence in state court.

Ronald Rooding was convicted of criminal damage to property and sentenced to one year in prison. With good time this translated to 92 days of actual imprisonment. When Rooding arrived at an IL DOC facility to serve the sentence he had already served 71 days in jail and thus had 21 days left to serve in the IL DOC. However, an IL DOC policy required that all new DOC commitments serve at least sixty days. This policy, in effect, lengthened Rooding's sentence by 39 days. Rooding filed for a writ of habeas corpus asking for his release after 72 days of captivity. The writ was granted 27 days after he should have been released.

Rooding then filed a class action suit in federal court claiming the 60 day policy violated his right to due process and equal protection. The ...

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 medical care by taking two years to repair broken pins in his hip. This is the third time the appeals court has reversed and remanded this case. See: Hathaway v. Coughlin, 841 F.2d 48 (2nd Cir. 1988) and 37 F.3d 63 (2nd Cir. 1994) [PLN, March, 1995].

After being remanded for trial after the second remand a jury rendered a verdict in favor of Dr. Foote, the prison doctor who failed to treat Hathaway. The jury ruled that Hathaway had proved he had a serious medical need but did not prove that Dr. Foote was deliberately indifferent to that need.

A successful deliberate indifference claim under the eighth amendment has two components that must be proven. An objective component: that a serious medical condition exists, i.e., one that may produce death, degeneration or extreme pain if left untreated. And a subjective component: that the prison official knows ...

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 in its care. Anthony Harper, a BOP prisoner, filed a Bivens suit against BOP officials claiming violation of his constitutional rights. The district court dismissed the suit, holding that § 4042 did not provide a private cause of action. The appeals court, siding with every other circuit court to consider the issue, agreed and affirmed the dismissal. The court noted that courts are not to find a private cause of action where none is explicitly articulated by congress. See: Harper v. Williford, 96 F.3d 1526 (DC Cir. 1996).

Section 4042 sets out the BOP's duty of care in negligence actions under 28 U.S.C. § 2679, the Federal Tort Claims Act. Because Harper's suit involved constitutional claims, that are not cognizable as tort claims, his suit was properly dismissed. In Jones v. United States, 91 F.3d 623 (3rd Cir. 1996) the court discussed application of § 4042 to ...

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 News, Legal Desk, Resources and Book Reviews.

Subscription memberships are $20/year, general; $5/year for prisoners; free for California SHU prisoners. Send $1 or equivalent in stamps for sample copy: Prison Focus, 2489 Mission #28, San Francisco, CA 94110; (415) 452-3359.


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