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Prisoner Education Guide

Prison Legal News: January, 1998

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Volume 9, Number 1

In this issue:

  1. Smoking, Lies and Hypocrisy (p 1)
  2. Education as Crime Prevention: Providing Education to Prisoners (p 4)
  3. From the Editor (p 5)
  4. Judge-Made Law (p 5)
  5. TCI Breaks 'Inmate Telephone System' Stranglehold (p 6)
  6. Utah Governor's 'Pal' Dupes Parole Officials (p 7)
  7. Motion for Seized Property Subject to PLRA Fee (p 8)
  8. Attn: Lawyers in Prison (p 8)
  9. Dismissal of Paid Suit Counts as a "Strike" (p 8)
  10. Fifth Circuit Upholds PLRA IFP Provisions (p 8)
  11. Mailbox Rule Applies to Trust Fund Statement (p 8)
  12. Mandamus Appeal Denied as Third Strike (p 8)
  13. PLRA Doesn't Apply to Habeas (p 8)
  14. Writs of Mandamus Not Subject to PLRA Fees (p 8)
  15. AL Jail Enjoined From Holding Prisoners Overnight (p 9)
  16. Former Warden Wins Suit Against TDCJ (p 9)
  17. Washington 35% Law Struck Down, in Part (p 10)
  18. $135,000 Award in Beating Affirmed, Municipal Liability Reversed (p 10)
  19. Torture Info Wanted (p 10)
  20. News in Brief (p 11)
  21. Legal Material Confiscation May Violate First Amendment (p 12)
  22. A Matter of Fact (p 12)
  23. Alabama Jail Held in Contempt for Crowding (p 12)
  24. Dismissal for Derelict Lawyer Reversed (p 13)
  25. New York Work Release Creates Liberty Interest (p 13)

Smoking, Lies and Hypocrisy

By Paul Wright

The recent settlement proposal between the tobacco industry and the attorney general's of 41 states has been in the news a lot lately. I share a home with 158 other men, 90% of whom smoke. The walls literally weep nicotine. A woefully inadequate ventilation system blows the smoke of countless handrolled, unfiltered cigarettes around. Even though the state pays virtually 100% of our medical costs if we get sick, nothing in the tobacco settlement will affect my state of affairs. The state of Washington ensures that loose leaf tobacco is readily available at 68¢ per 3/4 ounce box. The same state makes millions selling tobacco products to my neighbors. I am a prisoner at the Washington State Reformatory in Monroe, WA.

The Backdrop

On March 20, 1997, the attorney generals of 22 states held a press conference in Washington D.C. to announce the settlement of their lawsuit against the Liggett Group, the smallest of the big tobacco companies. Florida Attorney General (AG) Bob Butterworth used the occasion to wonder how many lives would have been saved, how many people would have lived longer to enjoy life with their children and grandchildren if the tobacco ...

Education as Crime Prevention: Providing Education to Prisoners

I lost count of the number of people who have written me to ask if I know where they can find statistics on the impact of prison-based education programs on recidivism. After congress eliminated Pell grants for prisoners in 1994, resulting in deep cuts in prison education programs, this question has been posed to me with increasing frequency. Now I have the answer.

The Center on Crime, Communities and Culture released a research brief in September, 1997. This 16-page report pulls together all of the relevant information and statistics on prison-based education into one compact, readable source. The serious researcher will appreciate the final three pages of the report, which provide extensive bibliographical references.

The quantity of hard data contained in the report relating to prison-based education and recidivism is sparse. But that is no fault of the authors. Rather, it confirms what I have long suspected: not enough solid studies have been done.

In addition to presenting what data is available, the report offers the following recommendations: reinstatement of Pell grants and financial support from a variety of public/private sources; quality education for juvenile offenders with an emphasis on special education and transition to the community; post-release support ...

From the Editor

Readers have recently asked if PLN still accepts subscription donations paid for with new, unused postage stamps. Yes, we do. Through an oversight that information wasn't included when we recently revamped our subscription flyer.

As the first PLN of 1998 we present our index for 1997. The index confirms what many already know: that PLN provides more news and legal information relating to prisons and jails than any other publication, for a lot less. One goal we are working on is expanding PLN 's size. We could easily publish a 32 or 40 page issue each month. All we lack is the money to pay for it. As things stand now we can afford to publish a 24 page issue with the occasional 28 and 32 page issue. The larger issues this month and last month were made possible by those of you who responded to our fund-raiser mailing.

When I talk about expanding PLN 's size I'm not talking about adding fluff or filler but the solid legal and news articles our readers have come to expect. As a result of our size constraints we are limited in what we can publish as well as the length ...

Judge-Made Law

The plaintiff was urging a legal rule which you thought was wrong. I thought it was legally right, but very unjust, and I didn't want to apply it. So, I made up my mind to lick the plaintiff on the facts. And by giving him every break on procedural points, I made it impossible for him to reverse me on appeal, because as the testimony was oral and in conflict, I knew the upper court would never upset my findings.
-- Unnamed District Judge

Frank, J., Courts on Trial (1949)

The prisoner and the lawyer were discussing civil law, and going over important court decisions made over the years.

"It ain't what cases say, man, it's what the judges say the cases say that makes the law," the prisoner said.

The lawyer's mouth formed a neat oval.

"What's up man?"

"I was just surprised to hear you say that."


"Because when I was in law school, one of my professors used to say the same thing: it's not what the cases say that makes law, but what the judges say the cases say."

Many people trust their lives, their liberty and their wealth to ...

TCI Breaks 'Inmate Telephone System' Stranglehold

By now you've seen the Tele-Con, Inc. (TCI) ads in Prison Legal News . I first heard of TCI in June, 1997, when a PLN reader sent me one of their brochures. Collect calls from prisoners billed at 10¢ a minute? Yeah, right. This sounded WAY too good to be true. My skepticism radar went on full alert. But, what the heck, I had to check it out. So I wrote TCI a letter.

They sent me a lot of literature. One item was an article written by Tom Farley, editor and publisher of Private Line : A Journal of Inquiry into the Telephone System. I quote Farley here:

"This system from Tele-Con, Inc. lets inmates call from any prison in the country to anywhere in the United States for only 10 cents per minute and have these calls charged back to the party being called -- all without any sort of surcharge or additional long-distance costs."

Hey, it sounded legit. TCI's letter, brochure and promotional material looked first rate. But, still, there must be a catch. So I kept digging.

I exchanged several letters with TCI. They wanted to advertise in PLN (for obvious reasons). I wanted to find out ...

Utah Governor's 'Pal' Dupes Parole Officials

Michael Blake Jensen, an admitted con artist and pathological liar was on parole for the fourth time in early 1995. He was facing possible parole violation and felony theft, and Utah parole officer David Olive and his partner, Swen Heimburg, were prepared to send Jensen back to the joint. But Jensen had other plans. He wanted to transfer his parole to Wisconsin.

Jensen told the two parole officers that he was a life-long pal of Utah governor Mike Leavitt. Initially the parole officers dismissed the claim. But Jensen, hounded by the two parole agents, had apparently called the governor's office to complain that the two were mistreating him. Such complaints are routinely passed on to the Department of Corrections (DOC).

"What the governor's office normally does is call and say, 'What's the story?"` a DOC official told Associated Press. "But our people took it as meaning that this guy has some juice, and they overreacted."

Jensen was allowed to go to Wisconsin, where he promptly violated parole by fleeing that state. He was arrested in Mississippi in March 1995 and returned to the Utah State Prison.

Several Utah DOC officials recounted events to AP reporters, but spoke ...

Motion for Seized Property Subject to PLRA Fee

The court of appeals for the fifth circuit held that a federal prisoner's motion for the return of seized property period had run. The district court did not reconsider its ruling. The court of appeals vacated and remanded. The appeals court held that because James had submitted a sworn statement saying he had complied in a timely manner with the court's 30 day deadline, the district court was required to either accept the allegation as true or make a factual finding to the contrary baunder Fed.R.Crim.P. 41(e) was a "civil action" which required the payment of the $150 filing fee in the district court and $105 for the appeal. The court declined to extend its prior holdings that the PLRA did not apply to criminal and habeas actions. See: Peña v. United States, 122 F.3d 3 (5th Cir. 1997).

Attn: Lawyers in Prison

Calfornia Lawyer , a legal trade magazine, is planning an article on incarcerated attorneys. We are looking for anyone who was a member of the California State Bar and who is serving time in a state or federal prison.

The article will address issues that touch directly on attorney inmates, as well as coping strategies, professional skills that have proven useful, and questions of that sort. Interviews are also being conducted with lawyers who have been released from prison. If this describes you, or someone you know, please write to California Lawyer, 1390 Market Street, Suite 1210, San Francisco CA 94102. Mark it to the attention of Brae Canlen.

Dismissal of Paid Suit Counts as a "Strike"

The court of appeals for the seventh circuit held that the dismissal of a lawsuit in which the filing fee had been paid counts as a "strike" under 28 U.S.C. § 1915(g). Section (g) of the In Forma Pauperis statute requires full payment of all filing fees when a prisoner files a suit or an appeal and on three or more occasions has had a federal lawsuit dismissed on the grounds that it is frivolous, malicious or fails to state a claim upon which relief can be granted, unless the prisoner is in imminent danger of serious harm. The PLRA does not specify whether the dismissed suits need to have been filed IFP to count as a "strike." The court held they did not. "The prisoner who has brought three suits or appeals that lacked sufficient merit to get beyond the pleadings (or that were an outright abuse of process) is not an appealing candidate for a waiver of the filing fee in his fourth through nth cases, even if he paid for the previous suits. We therefore hold that a dismissal need not, to qualify as a strike, be an action or appeal filed in forma pauperis ...

Fifth Circuit Upholds PLRA IFP Provisions

The court of appeals for the fifth circuit held that the PLRA's filing fee provisions, 28 U.S.C. § 1915, which require that prisoners pay the filing fees of any civil suits or appeals they file in federal court, are constitutional. The court held that the PLRA fee provisions do not deny prisoners access to the courts, in large part, because 28 U.S.C. § 1915(b)(4) specifically states that prisoners will not be prevented from filing suit solely because they lack the money to pay the filing fees. In so ruling, the court joined the second, fourth, sixth and eleventh circuits which have upheld the PLRA's fee provisions. All courts to consider the PLRA's fee provisions have upheld them. See: Norton v. Dimazana, 122 F.3d 286 (5th Cir. 1997).

Mailbox Rule Applies to Trust Fund Statement

The court of appeals for the ninth circuit held that Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988) applies to the filing of trust fund account statements as required by 28 U.S.C. § 1915(a)(2) of the PLRA's filing fee requirements. Curtis James, an Arizona state prisoner, filed a § 1983 suit which the district court dismissed for James' failure to file his prison trust account statement in a timely manner. James then submitted the trust fund statement with a sworn affidavit stating that he had mailed the trust fund information to the court within the 30 day period but which the district court had received and filed after the 30 day period had run. The district court did not reconsider its ruling. The court of appeals vacated and remanded. The appeals court held that because James had submitted a sworn statement saying he had complied in a timely manner with the court's 30 day deadline, the district court was required to either accept the allegation as true or make a factual finding to the contrary based upon an adequate evidentiary showing by the opposing party. Because the lower court did not make ...

Mandamus Appeal Denied as Third Strike

The court of appeals for the tenth circuit held that 28 U.S.C. § 1915(g), which bans in forma pauperis civil actions for prisoners that have had three or more actions dismissed as frivolous, malicious or for failing to state a claim, prevents the IFP filing of a writ of mandamus. In Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996) the court held that writs of mandamus are civil actions subject to the PLRA. In this case plaintiff Michael Washington has had almost two dozen actions dismissed as frivolous and he sought to file a writ of mandamus IFP. The court held that the petition was barred under § 1915(g) and could not be filed unless Washington prepaid the appellate filing fee. See: In Re Washington, 122 F.3d 1345 (10th Cir. 1997).

PLRA Doesn't Apply to Habeas

The court of appeals for the first circuit held that the filing fee provisions of the PLRA do not apply to habeas corpus petitions. In doing so, the first circuit joined the other eleven circuits that have held likewise. At this point all circuit courts are unanimous that the PLRA's filing fee provisions do not apply to habeas corpus petitions. See: Martin v. Bissonette, 118 F.3d 871 (1st Cir. 1997).

Writs of Mandamus Not Subject to PLRA Fees

Writs of Mandamus Not Subject to PLRA Fees: The court of appeals for the fifth circuit joined the second and seventh circuit in holding that petitions seeking writs of mandamus in the court of appeals are not subject to the PLRA's filing fee requirement as long as the underlying action is a habeas corpus petition or involves a criminal prosecution. See: In Re Stone, 118 F.3d 1032 (5th Cir. 1997).

AL Jail Enjoined From Holding Prisoners Overnight

Afederal district court in Alabama held that conditions in the Pickens county jail in Carrolton, Alabama, were so abysmal it was not fit for human or animal habitation. Prisoners in the jail filed a class action suit challenging the conditions of their confinement. The jail was designed to hold 54 prisoners but as of January 20, 1997, it held 71. The only staff member on duty in the jail was one jailer who doubles as a dispatcher. During an inspection visit on January 8, 1997, Pickens County district judge Woodard wrote: "Conditions in the jail defy word description. Only a personal inspection can reveal the severity of the conditions therein. This jail is inhumane, and not fit for human habitation. It is not fit for livestock. No man who valued his horse or dog would keep it confined within these walls. The conditions are a disgrace to a Christian people in a democratic society."

The federal court painted a dark, dismal picture of suffering and misery. Prisoners in the jail sleep on wet, sewage covered floors with pieces of foam as "mattresses," or none at all. They are provided with no clothes, linen or towels during their jail stay. If ...

Former Warden Wins Suit Against TDCJ

An Anderson County, Texas, jury found that former Beto I Unit warden Terry Terrell was fired because he reported corruption and violations of the law by other employees of the Texas Department of Criminal Justice (TDCJ).

The jury deliberated for nearly four hours before awarding Terrell, $100,000 for mental ...

Washington 35% Law Struck Down, in Part

PLN has reported extensively on Wright v. Riveland , the class action lawsuit challenging Washington state statute RCW 72.09.480 [ PLN , Jun. Aug. Dec. 1996; May, 1997]. The law allows the DOC to seize 35% of all money sent to prisoners, regardless of the source. The district court had previously dismissed the plaintiffs' claims that the statute violated their federal rights with regards to due process, equal protection, double jeopardy, ex post facto, bill of attainders, takings clause and excessive fines.

On October 1, 1997, magistrate J. Kelley Arnold issued a Report and Recommendation (R&R) which recommended partial summary judgment to the plaintiffs. At the outset the magistrate held that 28 U.S.C. § 1341, the Tax Injunction Act (TIA), did not apply to this action. This was very important because the defendants had sought dismissal of the suit claiming that the TIA deprived the federal courts of subject matter jurisdiction to hear the complaint.

The magistrate held that ERISA pension funds can be seized under the law. He also held that the plaintiffs lacked standing to challenge the statute as applied to railroad pension funds because no class member was identified as receiving such funds.

The R&R declared that the seizure statute "impermissibly conflicts with the class's right to receive funds from veteran's benefits, social security benefits, proceeds from § 1983 civil rights actions, and certain funds distributed to Native Americans without being levied."

On October 22, 1997, U.S. district court judge Franklin Burgess adopted the R&R in its entirety. The court's order states: "That all plaintiff's motion is granted in part and denied in part. RCW 72.09.480 is declared void to the extent that it conflicts with the following federal laws: Veteran's Administration benefits received under 38 U.S.C. 5301(a); Social Security benefits received under 42 U.S.C. § 407(a); proceeds from civil rights action filed pursuant to 42 U.S.C. § 1983; and certain funds distributed to native Americans under 25 U.S.C. § 410, 1401-07, 1176 and 43 U.S.C. § 1606(h), 1620. It is the class member's burden to demonstrate that any funds received are exempt from the deductions made pursuant to RCW 72.09.480."

The next step is for the plaintiffs to move for an injunction enjoining enforcement of RCW 72.09.480 to the extent it had been declared void and to seek attorney fees and ...

$135,000 Award in Beating Affirmed, Municipal Liability Reversed

The court of appeals for the District of Columbia circuit affirmed the award of $135,000 in damages to a prisoner beaten by prison guards, but it reversed an attorney fee award premised upon municipal liability. Robert Triplett, a D.C. prisoner, had his arm twisted and his neck broken ...

Torture Info Wanted

Bonnie Kerness, longtime prison rights activist; PLN supporter; and Associate Director of the American Friends Service Committee, Criminal Justice Program, is seeking information from U.S. prisoners who have been subjected to the use of restraint chairs (aka "the chair"), four-point restraints (aka "the motorcycle"), stun belts, stun grenades, gas grenades, pepper spray, CS gas, or other types of restraint, punishment, or torture/control devices.

She is preparing a report on U.S. lack of compliance with the United Nations Covenant on the Treatment of Prisoners, of which the U.S. is a signatory. Please send personal descriptions and/or affidavits to: Bonnie Kerness; AFSC - UN Report; 972 Broad Street, 6th Floor; Newark, NJ 07102

News in Brief

AL : On October 3, 1997, a fight between two unidentified prisoners at the Holman prison in Atmore escalated into a brawl involving 18 prisoners that left two seriously injured and five slightly injured. Prison spokesman Tom Gilkson said the fight began as a dispute over money paid to a lawyer.

Canada : In October, 1997, Ontario judge Bruce Hawkins declined to extradite Canadians Harry Cobb, Allen Grossman and James Tsioubris to face federal U.S. charges of swindling 1,000 people out of $35 million in a telemarketing scam. The ruling came after Assistant U.S. Attorney Gordon Zubrod told a Canadian TV interviewer that those who resisted extradition "would face a long, hard, prison term as the boyfriend of a very bad man." Judge Hawkins said "No right thinking Canadian would endorse the use of homosexual rape as a means of persuading Canadian residents to abandon their rights to a full extradition hearing."

China : In October, 1997, the Chinese government announced it was considering making lethal injection the official means of execution, instead of shooting. Lethal injection was ratified as a means of execution on January 1, 1997. Between March and October, 1997, 22 prisoners were executed by lethal injection ...

Legal Material Confiscation May Violate First Amendment

The court of appeals for the eighth circuit held that a factual dispute required a trial to determine if a prison package policy was arbitrarily applied in a manner that violated the first amendment. Clyde Weiler, a Missouri state prisoner, was sent a package of legal papers and transcripts by his son. The package was rejected under a prison policy requiring that all packages come from an approved vendor. Weiler filed suit claiming the censorship violated his first amendment rights. The district court dismissed the case, which was reversed on appeal.

On remand prison officials filed a motion for summary judgment on qualified immunity grounds claiming their mail policies were uniformly applied. Weiler produced affidavits from ten prisoners stating they had received packages of legal materials from friends and family members through the prison mailroom. The district court denied the motion, holding that the factual dispute prevented summary judgment. The defendants appealed and the appeals court, in a brief ruling, affirmed and remanded the case for trial. The court primarily held that whenever evidence conflicts it must be resolved at trial, not on a summary judgment motion. Readers should note that Weiler brought his claim solely under the first amendment ...

A Matter of Fact

[Editor's Note: This will be the last "A Matter of Fact" column. Many of you have written to praise the column but others have complained that: 1) it's a waste of space, and 2) its hard to digest an entire page of facts and figures all at once.

From now on "A Matter of Fact" material will be spread throughout each issue in bite-sized nuggets called "In Fact". So rather than waste valuable column space, the "In Fact" items will be used to fill the space left over at the end of articles that don't quite fill a page.]

Statistics from the New York State Senate's Office of Minority Programs show that 80 percent of all NY state prisoners come from just eight NY City neighborhoods.

Clinton Correctional Facility (CCF), in upstate New York, holds fewer than five percent of NY state prisoners. Approximately 50 percent of the brutality cases filed statewide by LAY Prisoners Legal Services stem from incidents at CCF.

The Israeli army has used "rubber bullets" since 1987 against Palestinian protesters. Although the plastic- or rubber-coated steel pellets are intended to be non-lethal, there have been 42 reported fatalities resulting from their use ...

Alabama Jail Held in Contempt for Crowding

Afederal district court in Alabama held that a jail had willfully refused to comply with a consent decree limiting jail crowding and held the defendants in contempt and imposed sanctions of $100 per day for every prisoner held in the jail over its capacity of 30 prisoners. In 1992 Macon county jail prisoners sued over their conditions of confinement. After counsel was appointed to represent them the parties entered into a consent decree requiring numerous changes in jail operation pending construction of a new jail slated for completion in May, 1996.

The new jail was not completed in schedule and the defendants sought to modify the decree. In a harshly worded ruling the court denied the motion and found the defendants in contempt. The court was incredulous about the sheriff's claim that he didn't learn he was unable to finance the new jail until thirteen months after settling the suit. The court ruled the defendants had entered into the decree without taking their responsibilities seriously and that they attempted to conceal their non-compliance from the court and plaintiffs.

The court gave a detailed discussion to the authority of courts to impose contempt sanctions in jail reform litigation. The ...

Dismissal for Derelict Lawyer Reversed

The court of appeals for the fifth circuit held that a district court abused its discretion when it dismissed, with prejudice, a prisoner's lawsuit as a sanction for his appointed counsel's dereliction. Tyronne Clofer, a Louisiana state prisoner, filed suit claiming prison officials were deliberately indifferent to his serious medical needs. The court appointed attorney David Ferguson to represent Clofer. Clofer filed a motion to dismiss Ferguson for inadequate representation, which the court denied. As the case proceeded to trial, Ferguson failed to appear at three pretrial conferences and the court dismissed Clofer's suit with prejudice as a sanction. Clofer asked the court to reconsider, arguing it was unfair to punish him for his court appointed attorney's inadequate representation. The district court denied the motion.

In a brief ruling, the appeals court vacated and remanded. "In this case, Ferguson alone is responsible for the plaintiff's failure to prosecute this action. Clofer was represented by an irresponsible attorney that the court refused to dismiss. In these circumstances, it is contrary to the most fundamental ideas of justice and fairness to punish Clofer for Ferguson's dereliction. Clearly, some sanction is appropriate but we feel sanctions directed ...

New York Work Release Creates Liberty Interest

Afederal district court in New York held that prisoners have a liberty interest in that state's Temporary Release Program (TRP) which requires due process before they can be removed from it. Franklin Greaves was a TRP participant, as such he lived and worked outside a prison facility five days a week and spent the weekends in prison. At all times he was legally in the custody of the NY Dept. of Correctional Services. Upon returning to prison Greaves was accused by guards of having a different watch than the one he had permission to have. Greaves was infracted and placed in segregation. At no time was he afforded a hearing at which to refute the allegation.

Greaves filed suit under 42 U.S.C. § 1983 claiming he was wrongfully removed from the TRP. The defendants filed a motion for summary judgment claiming the suit should be dismissed because New York state prisoners have no due process liberty interest in remaining in the TRP. The court denied the motion, holding prisoners do have such an interest and that Greaves had stated an actionable claim.

The court held that Sandin v. Connor , 115 S.Ct. 2293 (1995) [ PLN , Aug. 1995] applied ...


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