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Prisoner Education Guide

Prison Legal News: September, 1997

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Volume 8, Number 9

In this issue:

  1. U.S. Supreme Court: No Immunity for Private Prisons (p 1)
  2. ADA Applies to State Prisons (p 3)
  3. Pro Se Tips and Tactics (Consent Decrees) (p 4)
  4. Second Circuit Affirms IFP Provisions (p 6)
  5. Sixth Circuit Explains PLRA Again (p 6)
  6. PLRA Applies to Juveniles, Retroactive on Attorney Fees (p 6)
  7. PLRA Forbids Dismissal of Suits Without Paid Fees (p 7)
  8. Gun Law Threatens Police, Military, Prisons (p 8)
  9. A Matter of Fact (p 9)
  10. BOP Mutiny Convictions Affirmed (p 10)
  11. Vacant Judgeships Cripple Federal Judiciary (p 10)
  12. DC Women Prisoners' Suit Reversed (p 11)
  13. Alabama Phone System Upheld (p 11)
  14. Pepper Spray too Dangerous for DOC Training? (p 12)
  15. Former Mississippi Guards Lose Sentencing Appeal (p 12)
  16. Disciplinary Segregation Can Create Liberty Interest (p 13)
  17. New York Jail Overcrowding Unconstitutional (p 14)
  18. Prisoners Held Beyond Release Date Sue (p 14)
  19. Montana Paying for 1991 Prison Uprising (p 14)
  20. Supreme Court Strikes Down RFRA as Unconstitutional (p 15)
  21. Attorney Fee Award in Nominal Damage Case Affirmed (p 16)
  22. Detainee Awarded $64,000 in Guard Attack (p 16)
  23. Farmer Loses at Jury Trial (p 16)
  24. Iowa Grievance Retaliation Suit Set for Trial (p 17)
  25. Indiana ADA Verdict Affirmed (p 17)
  26. Fact Finding of Segregation Conditions Required in Disciplinary Suit (p 18)
  27. Failure to Remove Sutures States Claim (p 18)
  28. Nebraska Women's Court Access Case Reversed (p 18)
  29. Consent Decrees Enforceable on Its Own Terms (p 19)
  30. Jail Assault Requires Trial (p 19)
  31. Reliable Evidence Required at Disciplinary Hearing (p 20)
  32. Court Reduces Jury Award in Beating Suit (p 20)
  33. Sandin Analyzed for New York Prisoners (p 20)
  34. News in Brief (p 21)
  35. New Jersey Prisoners Have Liberty Interest in Parole (p 22)
  36. No Right to TV or Radio (p 22)

U.S. Supreme Court: No Immunity for Private Prisons

The U.S. supreme court, in a five to four ruling, held that employees of privately owned and operated prisons are not entitled to qualified immunity from suit. In the January, 1997, issue of PLN we reported McKnight v. Rees, 88 F.3d 417 (6th Cir. 1996) where the court of appeals for the sixth circuit held that guards employed by private, for profit prisons were not entitled to assert a qualified immunity defense to 42 U.S.C. § 1983 suits for money damages. This was the first circuit court ruling to squarely address, one way or the other, the issue of qualified immunity for private prison employees. The district courts to consider the issue were split. Compare Citrano v. Allen Correctional Center, 891 F. Supp. 312 (WD LA 1995) and Smith v. United States, 850 F. Supp. 984 (MD FL 1994) (private prisons entitled to qualified immunity) with Manis v. Corrections Corporation of America, 859 F. Supp. 302 (MD TN 1994) and Blumel v. Mylander, 954 F. Supp. 1547 (MD FL 1997) (private prisons not entitled to qualified immunity).

On November 27, 1996, the supreme court granted review in McKnight to decide: "Are private parties performing traditional public functions ...

ADA Applies to State Prisons

A federal district court in California held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-34 and the Rehabilitation Act (RA), 29 U.S.C. § 794, apply to state prisons and the California Department of Corrections (CDC) must comply with their respective provisions. CDC prisoners and parolees with mobility, sight, hearing, learning and kidney disabilities filed a class action suit seeking injunctive relief so that the CDC will make provisions for emergency warnings to hearing and vision impaired prisoners. The plaintiffs also sought relief for medically disabled prisoners who were denied half time sentence reductions due to their medical inability to work. The CDC moved for summary judgment arguing that neither the ADA nor the RA apply to state prisons and even if they do, that the CDC is immune from liability under the eleventh amendment. The district court denied the motion.

The court gave an extensive, detailed discussion to the history of the ADA and RA and concluded that both apply to prisons. The finding was supported by Department of Justice regulations concerning the application of both statutes to state prisons. See: 28 C.F.R. § 42.540(h) and (j) and § 35.190(b)(6 ...

Pro Se Tips and Tactics (Consent Decrees)

What A Consent Decree Is

This column discusses so-called "consent decrees" in prison cases. I briefly address the advantages of trying to get a consent decree in certain cases, and current issues regarding consent decrees. This column assumes that either you have filed a case under 42 U.S.C. § 1983 in federal court and the case has gotten beyond the preliminary stages of litigation and is headed for trial, or you already have a consent decree that you want to try to get enforced.

There are two basic ways in which a § 1983 case can be resolved in a prisoner's favor: A judgment by the court after a trial (or summary judgment), or an agreed settlement between the prisoner and the defendants. Agreed settlements may be called many things, but the most usual term is "consent decree," and that is the term I use here.

A consent decree is an agreement that settles a case and states what plaintiffs and defendants must do to put the settlement into effect. Usually if there is going to be a settlement it is worked out before a trial happens, but sometimes settlements are worked out in the middle of trial. In ...

Second Circuit Affirms IFP Provisions

The court of appeals for the second circuit held that the filing fee provisions of the PLRA, which require that prisoners ultimately pay all filing fees in civil litigation, are constitutional. The court agreed with the fourth, sixth and eleventh circuits, which have already upheld the PLRA's In Forma Pauperis (IFP) provisions. The court held that the PLRA fee requirements do not violate prisoners' rights to equal protection, access to the courts and the first amendment right to petition the government. The court had "little trouble holding that the Act's goal of relieving the pressure of excessive prisoner filings on our overburdened federal courts is a constitutionally legitimate one."

"In sum, we declare and adjudge that the filing fee provisions of the Prison Litigation Reform Act contained in § 1915 are constitutional, both as generally applied and as specifically applied to petitioner Jason Nicholas." See: Nicholas v. Tucker, 114 F.3d 17 (2nd Cir. 1997).

Sixth Circuit Explains PLRA Again

In the June, 1997, issue of PLN we reported In Re Prison Litigation Reform Act, 105 F.3d 1131 (6th Cir. 1997) where the chief judge of the sixth circuit issued an administrative order to guide judges in that circuit on how to implement the PLRA. This case involves the application of that order to a pending case. While largely repetitive of the earlier order, it contains some further clarifications. This case needs to be read in conjunction with In Re PLRA, especially if you are a prison or jail litigant in the sixth circuit.

The court begins its ruling "'In a case where the construction of legislative language such as this makes so sweeping and relatively unorthodox a change as that made here, I think judges as well as detectives may take into consideration the fact that a watchdog did not bark in the night ....' When congress penned the Prison Litigation Reform Act of 1995.... the watchdog must have been dead. The statute contains typographical errors... ; creates conflicts with the Rules of Appellate Procedure ... ; and is internally inconsistent .... Moreover, the year in its name, 1995, does not correspond to the date of its enactment, 1996. We have even issued ...

PLRA Applies to Juveniles, Retroactive on Attorney Fees

The court of appeals for the fourth circuit held that the Prison Litigation Reform Act (PLRA) applies to lawsuits brought by juvenile detainees and its cap on attorney fees ($112.50 an hour) applies to work performed before the PLRA's April 26, 1996, enactment. This ruling involves only the attorney fee award provision of the PLRA.

In 1990 juvenile prisoners in South Carolina filed a class action suit challenging their conditions of confinement. After a bench trial in 1995 the district court found the plaintiffs had proven constitutional violations in numerous areas and ordered relief. See: Alexander S. Ex Rel Bowers v. Boyd, 876 F. Supp. 773 (D SC 1995). The district court later awarded attorney fees. At subsequent, post PLRA, hearings the court found the plaintiffs were the prevailing party. The court held the PLRA's attorney fee limits did not apply to juvenile prisoners and did not apply to work performed prior to the law's enactment. The court of appeals affirmed in part, reversed in part and remanded.

The court noted that appeal courts review the applicability of statutory amendments de novo. 42 U.S.C. § 1988 allows prevailing civil rights plaintiffs to seek attorney fees ...

PLRA Forbids Dismissal of Suits Without Paid Fees

The court of appeals for the fifth circuit held that the Prison Litigation Reform Act (PLRA) does not require dismissal of a prisoner's civil rights suit because he had not yet paid the fees arising from a prior lawsuit. Gary Walp, a Texas state prisoner, filed suit under 42 U.S.C. § 1983 and sought In Forma Pauperis (IFP) status to proceed without the pre-payment of the filing fees. Walp filed the necessary PLRA papers and was assessed an initial filing fee of 14¢. Three months later Walp filed another § 1983 suit and the district court, on its own motion, denied Walp IFP status and dismissed the second suit. The court ruled that unless Walp voluntarily dismissed his first lawsuit he couldn't file any other lawsuits until the full filing fee was paid in the first case. Walp appealed and the court of appeals vacated and remanded.

The appeals court describes the various PLRA provisions aimed at curtailing prisoners' ability to file lawsuits with IFP status. "Nowhere does the PLRA require a prisoner to pay the entire filing fee in a prior civil case before filing a second complaint. We believe that this fact, in and of itself ...

Gun Law Threatens Police, Military, Prisons

In September, 1996, an acrimonious 104th Congress, faced with government "shut-down," passed the Omnibus Consolidated Appropriations Act of 1997. The budget battle garnered so much attention that little notice was given to a "rider" attached to the bill that poses a threat to the job security of the nation's 900,000 police, 200,000 prison and jail guards, and 1.2 million military personnel.

In its final House version, Rep. Frank Lautenberg (D-NJ) attached the "rider" known as the Lautenberg Gun Ban, altering the 1968 Gun Control Act. The rider made it illegal for anyone with a domestic violence misdemeanor conviction to possess a gun or ammunition. The original bill passed in the Senate with a blanket exemption for government employees who use guns in their official duties.

Lautenberg's bill then arrived in the House during the feverish last days of the 104th Congress budget showdown. There, Rep. Bob Barr (R-Ga.) picked up the gun ban and deleted the section exempting police and military. Attaching the revised gun ban to the massive federal budget bill (Section 658) assured its passage. It was signed into law by president Clinton on September 30, 1996.

Just before Thanksgiving, on November 26 ...

A Matter of Fact

1996 study of juvenile homicide arrests (National Center on Institutions and Alternatives, and the Center on Juvenile and Criminal Justice) revealed that six states: Florida, Michigan, Illinois, New York, Texas, and California accounted for 56 percent of juvenile homicide arrests in 1993. The report also cited four cities -- Los Angeles, New York, Chicago, and Detroit -- as accounting for one in three such arrests in 1993.

FBI statistics reflect a 20 percent decrease in arrest rates between 1993 and 1995 of 10-17 year-olds for murder.

The number of juveniles tried as adults in Ohio has risen 70 percent since a 1995 state law passed allowing teens as young as 14 to be tried as adults.

Bill McCollum (R-Fla.), sponsor of a federal "Get Tough on Juveniles" bill, referred to violent juvenile offenders as "the most vile human beings on the face of the continent .... they are truly vicious predators." McCollum also stated that juveniles "should be thrown in jail, the key should be thrown away and there should be very little or no effort to rehabilitate them." His bill breezed through the House.

As of September 1996, the California Youth Authority's 11 institutions and four camps -- designed to hold 6 ...

BOP Mutiny Convictions Affirmed

The court of appeals for the seventh circuit affirmed the convictions of three federal prisoners convicted of mutiny in a federal prison pursuant to 18 U.S.C. § 1792. The convictions stem from the October, 1995, BOP uprisings after congress refused to ratify changes to the nation's discriminatory crack cocaine laws. [PLN, Jan. 1996]. The defendants in this case were serving time for crack cocaine offenses; they plead guilty to the mutiny charges and appealed contending the statute was unconstitutionally vague and the indictment insufficient. The factual basis for the mutiny charge was that the defendants damaged government property and made verbal threats to guards and shouted obscenities at them during the uprising.

The court began its ruling with quotes from Mutiny on the Bounty, the classic tale of English sailors rebelling in 1787 against the tyrannical rule of Captain Bligh, who is set adrift in a boat while the sailors take the ship to Tahiti. The court held the statute is not unconstitutionally vague even though it does not define the term "mutiny." The court noted that the common usage of the term is "open rebellion against constituted authority" by sailors or soldiers. The court extended that definition ...

Vacant Judgeships Cripple Federal Judiciary

The administration of federal justice is being slowly strangled by politics. A political face-off between a republican-dominated U.S. senate judiciary committee and a spineless democratic president is choking the federal courts.

There are 98 unfilled judgeships in federal courts nationwide out of 844 positions, a 12 percent vacancy rate. Twenty-three of those positions have been vacant for 18 months or more.

The ninth circuit court of appeals is the hardest hit. Nine of the 28 ninth circuit positions are vacant, one for three years. A tenth position is soon to be vacant, leaving the ninth circuit with the fewest number of sitting judges since 1980, yet its caseload has doubled since then.

Not only are vacant seats not being filled, but congress has not created any new appellate judgeships since 1990, and no new appellate judgeships for the ninth circuit since 1984.

The situation takes a toll on countless plaintiffs with civil cases, which are shelved while criminal cases that--by lawtake precedence at both the trial and appellate levels. The ninth circuit alone has been forced to cancel 600 hearings in the first half of 1997. One PLN reader says he has awaited a ninth circuit ruling on a ...

DC Women Prisoners' Suit Reversed

In the December, 1995 and June, 1996, issues of PLN we reported Women Prisoners of the District of Columbia DOC v. District of Columbia, 877 F. Supp. 634 (DC DC 1995) and 899 F. Supp. 659 (DC DC 1995) in which a federal district court in the District of Columbia granted extensive relief to DC women who filed a class action suit challenging numerous conditions of their confinement, including: patterns of sexual assault and harassment; disparities between programs available to women prisoners compared to male prisoners; inadequate medical care; vermin infestation; overcrowding and more.

The defendants appealed and the court of appeals for the District of Columbia Circuit vacated and remanded. Because PLN has reported this ruling in great detail in the past we will not repeat the lower court's findings (which are printed as an appendix to the appeals court ruling). The appeals court also declined to apply the Prison Litigation Reform Act (PLRA) to the lower court's injunction because it was able to dispose of most appeal issues on the basis of pre-PLRA law. Those issues not vacated were remanded to the lower court for review in light of the PLRA.

Supplemental Jurisdiction: The appeals court ...

Alabama Phone System Upheld

The court of appeals for the eleventh circuit held that a lower court had erred in finding that a telephone calling list of ten people violated prisoners' first amendment rights. Freddie Pope, an Alabama state prisoner, filed suit challenging a prison policy limiting to ten the number of people Alabama prisoners can call. The ten person list can be changed every six months. The district court ruled in Pope's favor, holding that the list restriction violated his first amendment rights. The court ordered prison officials to expand Pope's phone list to fifteen people.

The appeals court reversed, holding that in assessing the constitutionality of the phone list policy the district court did not follow the analysis set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987). Applying Turner, the appeals court held that the phone list limit was constitutional because it bore a "reasonable relation to legitimate penological objectives." Namely, the unproved assertion that the restrictions would curtail criminal activity and harassment of judges and jurors. The appeals court vacated the district court's injunction in the case. See: Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996).

Pepper Spray too Dangerous for DOC Training?

In September of 1996, Paul M. Sullivan, health compliance officer for the North Carolina Department of Labor sent a letter to Mr. Franklin Freeman of the North Carolina Department of Correction (DOC). An alert reader obtained a copy of this letter and forwarded it to PLN's editors, who have verified its authenticity. We publish the full text of the letter here:

OSH [Occupational Safety and Health] Inspection #125226902, initiated April 22, 1996, at the Mecklenburg Correctional Center, is officially being closed. The investigation found that although exposure to Oleoresin Capsieum (OC) spray [i.e. pepper spray] is an important training activity, a direct (full-face) exposure poses a health risk. This finding differs from the OSH Division's initial assessment in April of 1994 of the potential effects of the training program. Consistent with the commitment made at that time, no citation is being issued for a violation of the OSH Act as a result of the Department of Correction's implementation of the program. However, based on this information as we discussed with you on July 26, 1996, we recommend a review and modification of your program. We appreciate your letter of August 5, 1996, indicating that you are ...

Former Mississippi Guards Lose Sentencing Appeal

On November 17, 1991, Larry Floyd escaped from the Mississippi State Penitentiary (MSP) at Parchman. He was captured the following day in an abandoned house near the prison. Upon his capture he was beaten by several MSP guards while others looked on.

A 1994 grand jury indicted eleven then-current or former guards for participating in the beating or attempting to cover it up. [See: "MS Prison Officials Indicted," PLN, Vol. 5 No. 10]. Two of the guards, Lt. Terry Lynn Winters and Lt. David E. Johns, visited other MSP guards on the eve of their grand jury testimony to exhort them to 'stick to the story" that Floyd sustained his injuries prior to being captured.

Six of the guards pleaded guilty. The fate of five others, including Johns and Winters was decided in a 7-day trial. All but Johns and Winters were exonerated of the charges.

Winters was found guilty of deprivation of rights under color of law, use of a firearm during and in relation to a crime, and obstruction of justice. He was sentenced to two concurrent 12 month terms, a consecutive 60-month term (for using a firearm), concurrent three-year terms of supervised release, and fines totaling $2 ...

Disciplinary Segregation Can Create Liberty Interest

In two separate rulings, the court of appeals for the second circuit held that in Sandin v. Connor, 115 S.Ct. 2293 (1993) [PLN, Aug. 1995] the supreme court did not create a blanket rule that disciplinary segregation alone, without the loss of good time, could never implicate a liberty interest. Vincent Miller, a New York state prisoner, was infracted for fighting and found guilty at a disciplinary hearing. The hearing officer refused to allow Miller to review the testimony of informants who allegedly witnessed the attack.

Miller was sentenced to 180 days in segregation and the loss of six months good time credits. The sanction was affirmed on administrative appeal and Miller filed an Article 78 petition in state court challenging the infraction. During the state court proceedings, Donald Selsky, the New York prison official responsible for administrative appeals who had previously denied Miller's appeal, reversed his prior decision and ordered the record of the infraction, and all sanctions, expunged because the tape of confidential witnesses was "unavailable for judicial review" and the hearing record was incomplete. Miller spent 125 days in segregation before the infraction was vacated.

Miller filed suit in federal court pursuant to 42 U ...

New York Jail Overcrowding Unconstitutional

A federal district court in New York held that overcrowding in the Erie County jail violated the eighth amendment rights of convicted prisoners and the fourteenth amendment rights of pretrial detainees housed in the jail. Bernard Zolnowski, a pretrial detainee, filed suit challenging jail conditions. The suit was then converted to a class action suit on behalf of all people held in the jail. The plaintiffs filed a motion for a preliminary injunction which the court granted in part and denied in part.

The jail was extremely overcrowded, designed to hold 525 prisoners in a section that held 848 on any given day and a holding center designed for 402 that held 634. Prisoners were being forced to sleep on floors, in hallways and gyms. Jail conditions were described by the court as toxic, dark, filthy, soiled with feces, poor ventilation and inadequate hygiene and toilet facilities.

At the Preliminary Injunction (PI) hearing extensive testimony was heard describing the squalor and misery of the jail. The court heard detailed testimony describing the psychological impact of overcrowding, ratio of living space to safety needs, etc. One expert witness described the jail conditions as being so degrading that if a kennel "maintained ...

Prisoners Held Beyond Release Date Sue

Four civil rights attorneys filed suit against Los Angeles County Sheriff Sherman Block and other officials for falsely imprisoning thousands of people each year by holding them beyond their scheduled release dates. "We intend to seek an injunction under the taxpayer action and force Sheriff Block to stop this wasteful and illegal practice," lead attorney John C. Burton said in an interview with the Los Angeles Times April 25, 1997. Sheriff's officials declined to comment on the allegations, citing the pending litigation.

The Sheriff's Department has quietly admitted it's tracking system for prisoners is obsolete and faulty. By April, some 200 people had been held beyond their release dates in Los Angeles County so far. The Department has been paying departing prisoners held too long in exchange for their agreement not to sue. To date this year, more than $26,000 has been paid to 30 people held an average of 17 days beyond their court ordered release dates according to figures obtained by the newspaper under the California Public Records Act.

The attorneys applied to have the lawsuit certified as a class action and, through court discovery, were working to identify other potential plaintiffs. This is ...

Montana Paying for 1991 Prison Uprising

The state of Montana agreed to pay $60,000 to the parents of a prisoner killed during a 1991 uprising at the maximum security Deer Lodge prison. It was the second settlement among 13 state court cases filed against prison officials. In January 1995, the state agreed to pay $150 ...

Supreme Court Strikes Down RFRA as Unconstitutional

On June 25, 1997, the United States supreme court struck down as unconstitutional the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb. In 1993 the RFRA was enacted by congress in response to the supreme court ruling in Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) which affirmed the principle that neutral laws of general applicability will be upheld even if they incidentally violate a citizen's religious beliefs. [PLN, June, 1994].

The case in question involves a Catholic church in the city of Boerne, Texas. Built in 1923 the church is designated a historic landmark by the city. When the diocese sought a building permit to demolish the church and build a larger church in its place to accommodate a growing congregation, the city denied the permit citing a local ordinance which requires preservation of historic landmarks. The archbishop of San Antonio filed suit under the RFRA challenging the permit denial. The district court ruled in favor of the city, holding the RFRA was unconstitutional. See: Flores v. City of Boerne, 877 F. Supp. 355 (WD TX 1995). The court of appeals for the fifth circuit reversed, holding the RFRA ...

Attorney Fee Award in Nominal Damage Case Affirmed

The court of appeals for the eighth circuit affirmed an award of $6,005.40 in attorney fees and costs to a prisoner who was awarded one dollar in nominal damages after a jury trial. Ali Muhammad, an Arkansas state prisoner, filed suit claiming his right to due process was ...

Detainee Awarded $64,000 in Guard Attack

A federal district court in Iowa denied jail guards' motion for a new trial on a detainee's jury verdict awarding $64,000 in an excessive force suit. Jeffrey Schultz was arrested and booked into the Woodbury county jail. During the booking Schultz was shackled, placed in a headlock, attacked ...

Farmer Loses at Jury Trial

In the July, 1994, issue of PLN we reported Farmer v. Brennan, 114 S.Ct. 1970 (1994), where the supreme court held that prisoners have an eighth amendment right to be protected by prison officials from rape or attack by other prisoners.

Farmer proceeded to the supreme court following summary judgment in favor of prison official defendants, which had been affirmed by the seventh circuit. The supreme court vacated the lower court rulings and remanded the case back to the district court.

On remand, the district court granted a second summary judgment, which was then reversed by the seventh circuit on grounds that the district court had not given the plaintiff enough time for discovery, Farmer v. Brennan, 81 F.3d 1444 (7th Cir. 1996) [PLN Vol. 8 No.4]

Dee Farmer is a pre-operative transsexual. After being transferred to the U.S. Penitentiary at Terre Haute, IN, she claimed she was raped by other prisoners as a result of prison officials being deliberately indifferent to her safety.

On remand from the seventh circuit, the case resulted in a district court jury trial. The trial, from jury selection through final decision, was over in two days. Jury deliberation took only ...

Iowa Grievance Retaliation Suit Set for Trial

A federal district court in Iowa held that an Iowa DOC practice of punishing prisoners who filed grievances may violate the first amendment. The court also held that a higher standard of proof than the "some evidence" standard, was required before prisoners could be punished for their complaints. Several Iowa state prisoners filed suit after they were punished by prison officials for complaining about staff misconduct.

This is almost a textbook case of how not to conduct prison litigation. In its lengthy ruling the court repeatedly complains of procedural deficiencies and shortcomings in the prisoners' complaint, filing of in forma pauperis forms, certification of class action status and pleadings for summary judgment. The prisoners were represented by counsel. It is surprising the case was not simply dismissed.

The 47 page ruling gives extensive case citations and discussion to prisoners' right to file grievances without fear of retaliation, the right to petition the government and their rights at disciplinary hearings.

The court held that prisoners' right to petition the government by filing administrative grievances was chilled by the practice of punishing prisoners who complained of misconduct. The court held that before discipline could be imposed, prison disciplinary hearing officers had to ...

Indiana ADA Verdict Affirmed

In the March, 1996, issue of PLN we reported Love v. Westville Correctional Center, 896 F. Supp. 808 (ND IN 1995) where the court granted the plaintiff a new trial on his Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, claim. After a new trial the jury awarded ...

Fact Finding of Segregation Conditions Required in Disciplinary Suit

In two separate cases the court of appeals for the eighth circuit held that lower courts had improperly dismissed suits filed by Missouri state prisoners who had claimed they were denied due process when they were placed in segregation. Roman Hemphill and Robert Driscoll filed suit claiming their right to due process was violated when they were placed in disciplinary segregation for thirty days after being found guilty at prison disciplinary hearings. They did not lose any good time credits

The district court dismissed both cases relying on Sandin v. Connor, 115 S.Ct. 2293 (1995) [PLN, Aug. 1995], by holding the plaintiffs were not entitled to due process because the punishment they received "did not present the type of 'atypical, significant deprivation' in which a state might conceivably create a liberty interest."

The court held that "In contrast to the detailed record in Sandin, the record here did not cite any factual basis for concluding that the segregation at issue did not impose an 'atypical and significant hardship' on Hemphill in relation to the 'ordinary incidents of prison life.' We agree with the circuit courts which have concluded that this factual determination is required under Sandin. See: Samuels v ...

Failure to Remove Sutures States Claim

A federal district court in Maryland held that a prisoner raised a genuine issue of material fact, requiring a trial, because prison doctors did not remove wire sutures from his abdomen. Nicholas Jones, a Maryland state prisoner, underwent hernia surgery. Afterwards, suture wires remained in his abdomen causing him recurring pain and restricting his ability to move and preventing him from working and earning money and good time credits. After repeated complaints six different doctors recommended removal of the sutures but Correctional Medical Systems (CMS), the private business that held the MD DOC's medical care contract, refused to do so. The wire was eventually removed after four years of Jones' complaints. He then filed suit claiming prison officials were deliberately indifferent to his serious medical needs.

The prison doctor defendants filed a motion for summary judgment, which the court denied. Prison officials violate the eighth amendment when they are deliberately indifferent to prisoners' serious medical needs. A condition causing chronic pain, that significantly affects an individual's daily activities or which a reasonable doctor or patient would find important or worthy of treatment is a "serious medical need." In this case the court noted that six doctors recommended the ...

Nebraska Women's Court Access Case Reversed

In the August, 1996, issue of PLN we reported Klinger v. Nebraska DOC, 909 F. Supp. 1329 (D NE 1995) which held that women prisoners in Nebraska were denied their right of access to the courts when the prison law library consisted only of "a disorganized pile of books stored in a small room." At the time we predicted the ruling would be overturned in light of Lewis v. Casey, 116 S.Ct. 2174 (1996) which we reported in that same issue and which held that prisoners must show "actual injury" to prove a court access violation--namely, a meritorious court action must be dismissed as a result of an inadequate law library.

The court of appeals for the eighth circuit did just that, reversing the court access ruling and vacating the award of attorney fees and costs. In doing so the court held the prisoners' court access claim failed as a matter of law under Lewis. "Even though plaintiffs did show a complete and systemic denial of access to a law library or legal assistance prior to January, 1989, plaintiffs' claims fail as a matter of law because none of the inmates at NCW suffered actual injury or prejudice as ...

Consent Decrees Enforceable on Its Own Terms

The court of appeals for the seventh circuit held that a consent decree that incorporated state law requirements on prison officials did not violate the eleventh amendment and could be enforced on its own terms. In 1992 Indiana state prisoners filed suit challenging numerous aspects of the Maximum Control Complex (MCC) in Westville. [ See PLN, August, 1992.] The suit was later settled as a consent decree that provided relief for many of the issues raised in the complaint. Among the issues settled was a provision in the decree that the Indiana DOC would provide lay advocates to advise and represent prisoners facing disciplinary hearings. The language in the decree mirrored that of Indiana Code § 11-11-5-5(a)(7).

In 1994 prisoners filed a motion to hold the defendants in contempt for denying prisoners the lay advocates of their choice and because the lay advocates provided by the DOC had not performed any of the functions traditionally expected of an advocate. The district court denied the motion holding that, under the eleventh amendment, it could not order prison officials to abide by state law. The appeals court reversed and remanded.

Prisoners have no constitutional right to advocates or representation in prison disciplinary ...

Jail Assault Requires Trial

The court of appeals for the sixth circuit held that whether a prisoner's question to a guard about what would happen if he assaulted another prisoner, required a trial to determine if the guard was liable when the questioner then assaulted another prisoner.

William Street was detained in the Metro Davidson County Detention Facility, a Nashville, TN jail run on contract by Corrections Corporation of America (CCA). After arguing with Street prisoner Wendell Harris asked jail guard Dexter Stephen what would happen if he assaulted Street. Stephen replied the incident would be reported and Harris placed in segregation. Shortly afterwards Harris attacked Street with a metal lock in a sock, lacerating his eye and fracturing his facial bones, which required corrective surgery.

Street sued several guards and CCA over the attack and the district court granted summary judgment to all defendants, dismissing the case. The court of appeals affirmed dismissal of all defendants except Stephen and remanded the case for trial.

The court discussed the facts which must be proven for a prisoner to prevail on an eighth amendment claim involving deliberate indifference to his or her safety under Farmer v. Brennan, 511 U.S. 825, 114 S.Ct ...

Reliable Evidence Required at Disciplinary Hearing

A federal district court in Indiana granted a habeas corpus petition after finding a prisoner was denied the ability to present exculpatory evidence at a prison disciplinary hearing. Monte McPherson, an Indiana state prisoner, was infracted and found guilty of having sex with another prisoner. McPherson lost 90 days of good time as a result and he filed a habeas corpus petition in federal court claiming violation of his right to due process.

The court held that McPherson's due process rights were violated when he was found guilty based solely on the infracting guard's report. McPherson was denied an opportunity to present a statement from another guard stating he did not see McPherson engage in any sexual acts. The court held that the exculpatory statement undermined the reliability of the only evidence used to find McPherson guilty: the infraction report.

The court conditionally granted the habeas petition and ordered the prison to conduct a new disciplinary hearing and allow McPherson to present his exculpatory evidence. If that was not done within 120 days the court would order full relief, including restoration of lost good time. See: McPherson v. McBride, 943 F. Supp. 971 (ND IN 1996).

Court Reduces Jury Award in Beating Suit

A federal district court in New York entered a jury verdict awarding compensatory and punitive damages to a prisoner beaten and tranquilized by guards, it then reduced the punitive damage award. Donovan Blissett, a New York state prisoner, filed suit claiming his eighth amendment rights were violated when prison guards ...

Sandin Analyzed for New York Prisoners

A federal district court in New York held that a trial was required to determine if a prisoner's due process rights were violated at a disciplinary hearing. The significance of this case lies not so much with the court's ruling as with its exhaustive and detailed analysis of how Sandin v. Connor, 115 S.Ct. 2293 (1995) has been applied to New York state prisoners.

Theodore Justice, a New York state prisoner, filed suit on various claims. All were dismissed except his due process claim that he was improperly found guilty of threatening a guard. Justice was sentenced to 180 days in segregation, 6 months loss of good time and a loss of privileges. Justice administratively appealed the hearing results and it was reversed in its entirety, however, by that time Justice had served most of the disciplinary sanction. Justice filed suit seeking money damages claiming his right to due process was violated when the hearing officer refused to call witnesses on his behalf at the hearing or accept documentary evidence showing that the infracting guard had motivation to fabricate the report.

The defendants sought dismissal by arguing that Sandin had overruled prior second circuit cases holding that ...

News in Brief

AK: On July 2, 1997, Allen Compton, chief justice of the Alaska supreme court resigned after being privately reprimanded by the Alaska Commission on Judicial Conduct. The allegations giving rise to the reprimand were not made public. Compton remains on the court as an associate justice.

CA: As part of a lawsuit settlement the Los Angeles Police Department agreed in July, 1997, to end the practice of "hog-tying" suspects. Bruce Klobuchar, the son of a former policeman, died in August, 1995, after being "hog-tied" (handcuffing a suspect's wrists and ankles together behind their backs.) The city paid Klobuchar's family $750,000 to settle their lawsuit, bringing to more than $2 million the liability settlements paid by the city to resolve litigation by families of suspects who died while hog-tied.

CA: In July, 1997, a state appeals court upheld the firing of Pelican Bay state prison medical technician Irven McMillan who was fired for placing prisoner Vaughn Dortch in a bathtub filled with boiling water. Dortch suffered second and third degree burns and eventually settled a lawsuit against the state prison system for $997,000.

CT: In May, 1997, Robert Jordon sued the city of New London because they ...

New Jersey Prisoners Have Liberty Interest in Parole

A federal district court in New Jersey held that New Jersey parole statute N.J.S.A. § 30:4-123-53(a) creates a due process liberty interest in parole release. Hubert Watson filed suit under 42 U.S.C. § 1983 claiming his due process rights were violated when he was impermissibly denied parole and forced to serve his maximum term.

The court noted that state and federal courts have consistently held that New Jersey's parole statute gave "rise to an expectancy of release." The court rejected the state's claim that Sandin v. Connor, 115 S.Ct. 2293 (1993) had overruled Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100 (1979) and Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415 (1987). The court noted "Sandin did not overrule Greenholtz and, in fact, favorably cited Allen, because, unlike Sandin, they are directly on point. Both cases dealt with a prisoner's liberty interest in parole; Sandin did not." The court held that pre Sandin rulings on New Jersey parole statutes remain good law.

New Jersey prisoners have a due process liberty interest in receiving a future parole eligibility ...

No Right to TV or Radio

A federal district court in Mississippi upheld a state statute prohibiting prisoners from using televisions or radios. In the January, 1995, issue of PLN we reported the enactment of Miss. Code Ann. § 47-5-124 which states: "No convict incarcerated in a state correctional facility or a private correctional facility may be authorized or permitted to operate, use or have in his possession during the term of his incarceration any radio, television, record player, tape player, recorder, compact disc player, stereo or computer except when such devices are used in a work incentive program or regimented inmate discipline program authorized and administered by the Department of Corrections. The Department shall develop and implement a plan to return such devices owned by inmates to the families of such inmates."

Despite the sweeping language of the statute the DOC implemented it so that the only prisoners who were actually affected by it were those in disciplinary segregation and thus unable to participate in work programs. Several prisoners in segregation filed suit, pro se, challenging the statute. The court rejected each of the arguments raised and dismissed the suit. The court cites numerous cases involving TVs and radios, all of which have concluded that prisoners ...


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Disciplinary Self-Help Litigation Manual



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