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Prisoner Education Guide

Prison Legal News: October, 1998

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Volume 9, Number 10

In this issue:

  1. Arizona DOC Paralegal Fraud: Law Libraries Closed, Replaced by Scam Artists (p 1)
  2. Arizona Paralegals Obstruct Court Access (p 3)
  3. Nine Florida Prison Guards Indicted, Fired (p 4)
  4. From the Editor (p 5)
  5. Loompanics Unlimited (p 5)
  6. Book Review: Project Censored: The News That Didn't Make the News (p 5)
  7. Texas State Symbol Sewn by Slaves (p 6)
  8. Anatomy of a Whitewash (p 7)
  9. Serious Crime Down Again (p 7)
  10. Corcoran Prison Sex, Lies, and Videotape (p 8)
  11. The Buck Stops Where? (p 11)
  12. Devil's Island Redux (p 12)
  13. Georgia Brutality Suit Settled for $283,500 (p 12)
  14. Georgia DOC Turns to Private Prisons (p 13)
  15. Ohio Sells Prison Records (p 13)
  16. PLRA Physical Injury Requirement Does Not Apply to Ex-Cons (p 14)
  17. No Administrative Exhaustion for Bivens Suit (p 14)
  18. FRCP 12(b)(6) Standard Applied to PLRA Dismissals (p 15)
  19. No Exhaustion Required for Money Damage Claims (p 15)
  20. Maryland Indigent Court Cost Suit Settled (p 16)
  21. Utah Porn Ban Rescinded; Suit Settled (p 16)
  22. Wisconsin Transfers Spark Protest (p 17)
  23. Ohio Union Officials Protest Prison Labor (p 17)
  24. Phone Profits 'Benefit' Jail Detainees (p 18)
  25. Manslaughter Charges Against Three TX Guards Dismissed (p 18)
  26. CT Prisoners Pinched for Cost of Imprisonment (p 18)
  27. Four Indicted in Videotaped Brazoria Jail Beatings (p 19)
  28. Sign Language Interpreters Required in Missouri (p 20)
  29. UNICOR Worker Receives $928.32 for Lost Hand (p 20)
  30. Private Health Care Providers Denied Qualified Immunity (p 21)
  31. FL DOC Violates Individuals with Disabilities Education Act (p 21)
  32. Sandin Analysis Hinges on Punishment Actually Imposed (p 22)
  33. New Trial After Magistrate Conducts Jury Selection (p 23)
  34. Trial Required in New Jersey Diabetic Care Suit (p 23)
  35. Prisoner Attendance at Depositions Discussed (p 24)
  36. California Lifers Covered by Tolling Statute (p 24)
  37. Garnishment Proceeding Part of Underlying § 1983 Action (p 25)
  38. Fifth Circuit Expands Qualified Immunity Defense (p 25)
  39. News in Brief (p 26)
  40. Kansas Prisoners Entitled to Halfway House Credits (p 27)
  41. Amnesty International Seeks Human Rights Abuse Info (p 27)
  42. Denial of Legal Materials Sent by Relatives Upheld (p 28)
  43. Failure to Protect in Prison Fight Violates 8th Amendment (p 28)
  44. Alabama Counties Not Liable for Jail Conditions (p 29)
  45. Nebraska Prisoners Have Right to Defend Against Suit (p 29)

Arizona DOC Paralegal Fraud: Law Libraries Closed, Replaced by Scam Artists

One year ago this month, PLN reported that 34 Arizona prison law libraries were permanently closed and replaced with visiting paralegals under contract with the state. [See: "Experiment in Access: Law Libraries Eliminated in Arizona Prisons" PLN , Vol. 8 No. 10]. The "experiment in access'' recently exploded in the faces of its creators, rocking the Arizona DOC (ADOC) with charges of fraud, mismanagement and criminal negligence.

The August 12, 1998, edition of the Arizona Republic reported that "corrections officials confirm that the man to whom they granted a $396,000 paralegal contract last year has a criminal record and bogus educational credentials."

The scandal elicited an immediate response from ADOC Director Terry Stewert, who insisted that the case of contract paralegal Scott Sirota is an isolated incident that does not reflect on the integrity of the ADOC or its contract paralegal system.

Stewart's attempt to deflect criticism from the ADOC and focus blame on the contractor rings hollow, though, when you consider the embarrassing fact that the spark which ignited the scandal came from outside the Department. Were it not for the efforts of prison activist Donna Hamm of the prison rights group Middle Ground, Stewart and the ADOC ...

Arizona Paralegals Obstruct Court Access

by [AZ prisoner, name withheld by request]

The elimination of Arizona prison law libraries is an experiment that other states (and the courts) are watching. Does the contract paralegal system work? And does it provide constitutionally adequate access to the courts? After one year of this experiment, I'd say the answer to both is "No".

I have personally observed numerous meetings between the contract paralegals and prisoners. The paralegals offer zero advice, and are pretty damn quick to explain in no uncertain terms that they are not required to provide advice. Instead, they tell the prisoner to 1) read the Self-Help Litigation Manual , or 2) write to an attorney. Average time with each "client'' [prisoner] is 5 to 10 minutes.

In the rare instance when a prisoner has an actionable complaint, the paralegal hands him a fill-in-the-blanks §1983 form. They don't help one bit in preparation of this form; the prisoner is left to fill it out himself with no instructions. After the "initial filing" of this form, the prisoner is on his own.

If there is a motion by the state to dismiss or for summary judgement, the paralegals strictly adhere to the clause in their contract ...

Nine Florida Prison Guards Indicted, Fired

Nine Florida state prison guards were indicted July 10, 1998, on federal conspiracy and civil rights violation felony charges in the death of a prisoner who was chained, beaten, and left to bleed to death. A tenth guard, presumably the one who broke the "code of silence" to testify on his peers, pleaded guilty the same day to a single conspiracy count.

According to the federal indictment, the incident began on August 18, 1997, when John Edwards, an HIV+ prisoner, allegedly bit a guard at the Zephyrhills Correctional Institution. Edwards was transferred to the Charlotte Correctional Institution in Fort Meyers, Florida, as a result of the biting incident.

According to the indictment the nine guards plotted to injure, threaten and intimidate Edwards in retaliation for biting their colleague. They allegedly kicked and beat Edwards, slamming him into walls while in restraints. After three days of brutalizing, Edwards tried to commit suicide by slashing his arm.

He was then moved to a psychiatric unit, chained naked to a metal bed, and made to endure what would turn out to be his final beating. Edwards slowly bled to death over the next twelve hours, said Assistant U.S. Attorney Doug Malloy.

Later ...

From the Editor

Not too long ago I viewed two one-hour Nightline prime-time specials back-to-back. The first hour featured non-stop spin control about the day's Tomahawk cruise missile attacks on "terrorist camps" in Afghanistan and (most mind-boggling of all!) a pharmaceutical factory in Sudan.

Just weeks before, the television had beamed stark images of horrific famine from refugee camps in Sudan. Relief workers warned the U.S. viewing audience that one to three million human souls verged on starvation.

Fast forward to two weeks later, and we're listening to Ted Koppel and company claim that the devastated pharmaceutical plant, now a pile of smoking rubble, had "the capacity to manufacture the precursors to chemical weapons" (as does arguably every pharmaceutical factory in the world). Images of Sudanese rescue workers carrying mangled bodies out of the wreckage seared into my mind. These were juxtaposed over the images of bodies being removed from the bombed-out U.S. embassies in Kenya and Tanzania days before.

Koppel airs a press conference clip of the Secretary of State describing the savage embassy bombings, that the U.S. will not tolerate the killing of innocents by terrorist organizations. She stressed the importance of the "Rule of Law ...

Loompanics Unlimited

Loompanics modestly bills itself as "the best book catalog in the world." If it's not the best it is certainly the most diverse, having all the books you've heard about but probably haven't seen in the neighborhood bookstore. Loompanics is a publisher and vendor that pushes the first amendment to its limit. Their large book catalog, an entertaining and informative read in and of itself, has books on every topic imaginable, including: how to clear a criminal record, everything you wanted to know about prison, freelance writers handbook, how to make improvised explosives and weapons, lockpicking, drug manufacture, solar energy, self publishing, fake ID, atheism, survivalism, finding information, getting even, anarchy, smuggling, economics, sex, camouflage, military and paramilitary manuals, guns, weapons, privacy, mass media, guerrilla warfare, health and medicine and lots, lots more.

If you're interested in any offbeat, underground or unusual topics then Loompanics probably has it. Their catalog is available for $5.00 from: Loompanics Unlimited, P.O. Box 1197, Port Townsend, WA. 98368. 1-800-380-2230.

The Citebook

Review by Paul Wright

The Citebook is a 275 page book written by Tony Darwin designed to help laypersons help themselves in researching their litigation. Now in ...

Book Review: Project Censored: The News That Didn't Make the News

Washington on $10 Million a Day: How Lobbyists Plunder the Nation by Ken Silverstein. Common Courage Press

Project Censored: The News That Didn't Make the News, by Peter Phillips and Project Censored. Seven Stories Press.

Prison activists and others who seek reforms within the current political-economic structure have to come to terms with two overriding facts about the American political system: that money has a commanding influence on politics and the range of acceptable political discourse is kept very narrow by the corporate media. Two recent books do an excellent job at describing and outlining how these processes take place. While not "prison books," anyone engaged in political activism should read them.

In Washington on $10 Million a Day investigative reporter Ken Silverstein gives detailed example after example on how corporate lobbying gives birth to, shapes and even kills legislation. With 40,000 to 80,000 lobbyists working in Washington D.C. alone, Silverstein shows how the rich buy access and influence to advance their interests at every step of the legislative and regulatory process. He also provides useful comparisons between lobbying and political campaign contributions to politicians. In 1996 Phillip Morris, the tobacco company, spent $19.6 million ...

Texas State Symbol Sewn by Slaves

Designers of the Texas state flag meant for its red, white and blue colors to represent bravery, loyalty and purity. But the flag of the Lone Star state also represent modern-day prison slavery.

For more than 20 years, female prisoners at the Hilltop Unit (prison) near Gatesville have been the sole manufacturer of state flags. In 1997 the 15 female prisoners assigned to the flag-making operation stitched together more than 14,000 flags. The women, who spend eight hours a day cutting, sewing and inspecting flags, are paid nothing for their labor.

Most schools and state buildings fly the slave-made banners. But those flags account for a relatively small portion of the Gatesville prison's output. Most of the flags are handed out by state officials to members of the public; a cheap way for politicians to garner goodwill among their (non-incarcerated) constituency.

"The state flag is a tremendous symbol and provides a real sense of pride for our citizens," said State Rep. Sherri Greenburg (D-Austin), whose office presents up to 150 flags a month to people who request them. The $11, 3-by-5 foot flags come in cotton or nylon and can be flown briefly over the state capitol if ...

Anatomy of a Whitewash

"Authority is never without hate" --Euripides

In a decision that was as remarkable as it was predictable, the Greene County DA, David Pollock, announced his office would take no criminal action against prison guards who were viewed on videotape, "roughing up" men in the Restrictive Housing Unit (RHU) of the State Correctional Institution located in Pennsylvania's Southwest. He reportedly uttered a sentence that was to the effect that his office "would not tolerate" violence against prisoners.

Yeah right.

For several years now, men imprisoned at SCI Greene have written to the local DA's office, charging any number of violent acts against them, to no avail. Most have received no answer at all. Some were told to file institutional grievances. Others had their letters Xeroxed and forwarded to Greene prison officers, virtually insuring a negative, and vengeful retaliation for daring to seek "legal redress". And still others had their letters intercepted, opened, read, crumbled, and undelivered (in which case, of course, retaliation, for trying would ensue.)

It has been noted several times in this column that judges are political
officers, but if that be so, how much more so are DA's?

This DA initially announced his "probe" after ...

Serious Crime Down Again

For the sixth year in a row, serious crime rates fell during 1997, particularly in the Northeastern states, and big cities, according to recent Justice Department figures.

In a survey of 16,000 city, county and state agencies, the overall rate of serious crime fell by 4 percent. Violent crimes went down by 5 percent, with 9 percent decreases in murders and robberies. There was a lesser decrease for aggravated assault, a 2 percent drop, and rape is down one percent. Property crimes fell by 4 percent, car thefts are down 5 percent, and arson saw an 8 percent drop.

Cities with populations exceeding a million reported that both murders and robberies declined 11 percent. Cities of a half a million to a million in population report murders and robberies are down by 10 percent. In cities with populations of a quarter of a million to a half a million, murders are down 14 percent, and robberies by 10 percent.

In New York City, the overall number of crimes reported declined by 7 percent, from 382,555 in 1996, to 355,893 for 1997. Murders declined from 983 to 770, and robberies fell to 44,707 from the previous year ...

Corcoran Prison Sex, Lies, and Videotape

by W. Wisely

Iheard yelling and screaming. I heard batons hitting," Connie Foster told California lawmakers at a joint legislative hearing into brutality at Corcoran prison July 28, 1998. Foster, who worked at the prison from 1987 to 1996, spoke quietly about watching guards beat a prisoner lying face down on the ground, handcuffed behind his back. The hearings, which lasted five days, revealed a sordid story of a system out of control. "The [guards] were just thrashing him. I walked away. It made me sick," Foster told the Sacramento Bee .

Located on a flat stretch of burned out farm land laden with toxic chemicals in California's Central Valley, Corcoran was the first prison in the state to open a modern "super max" Security Housing Unit (SHU). Between 1989 and 1995, 50 Corcoran SHU prisoners were shot by guards, seven fatally. The number of prisoners brutalized in other ways is undetermined.

Seven years after the first unarmed prisoner was killed by a guard for fighting, and amid probes by the FBI and a local prosecutor, the Department of Corrections and Attorney General's office launched their own investigations into the shootings, violence, and cover-ups at Corcoran. Not surprisingly, both ...

The Buck Stops Where?

When Georgia prisoner Stanley Reed filed a federal habeas petition in January 1997 he probably didn't expect the response he received: The warden refused to answer the petition, raising the possibility that Reed might be released by default. The reason? Reed, although a state prisoner, was doing time at a county facility. Georgia pays county facilities $12.50 per prisoner per diem, and officials in Colquitt County, where Reed was incarcerated, balked at covering the additional cost of litigating habeas petitions.

The Colquitt case highlights a power struggle between state and county officials over the expense of housing state prisoners--local governments complain they're getting the short end of the correctional stick and are saddled with costs that exceed the reimbursement they receive. And as states face overcrowded corrections systems due to harsh sentencing laws, and house an increasing overflow of prisoners in local facilities, such disputes are likely to escalate.

For example, in February 1998 lawyers representing county governments in Alabama asked a judge to find the state in contempt of a court order requiring prisoners in local jails to be transferred to state prisons within 30 days of sentencing. The state argued that it couldn't comply ...

Devil's Island Redux

Devil's Island Redux?

Tucked away in the mammoth $238 billion 1997 defense spending authorization bill was a four paragraph section, approved by the House Armed Service Committee, that asked the Pentagon to study the feasibility of imprisoning drug offenders on isolated islands in the Pacific Ocean.

According to the study proposal, remote U. S. military outposts on Midway and Wake Islands, former WW II battlegrounds, would be converted into penal colonies for prisoners convicted of drug-related offenses. The facilities on Wake and Midway are maintained by the Department of Defense as emergency airfields and communication stations. "This is the craziest thing I've ever heard," said Loren Siegel of the ACLU, when informed about the study.

The proposal was introduced by U.S. Representative Richard Ray (D-Ga), who calls it a "keen idea" for cutting maintenance costs at the facilities while reducing prison construction. "Using drug offenders to man these isolated and shark-surrounded islands would alleviate some of the overcrowding of federal prisons and save the Department of Defense some money," said Ray.

Los Angeles Daily News

Georgia Brutality Suit Settled for $283,500

In a brief hearing on April 23, 1998, U.S. district judge Harold Murphy finalized an agreement that allowed 14 prisoner plaintiffs and their attorneys to receive $283,500. After approving the settlement judge Murphy was quoted as saying, "The settlement is fair, responsible and in the public interest."

The ...

Georgia DOC Turns to Private Prisons

According to a report by the Georgia Board of Pardons and Paroles, by July 2003 the state will have just 42,000 prison beds for a projected 55,000 state prisoners. This imbalance is primarily due to a "two strikes" law that took effect on January 1, 1995 and a new parole policy requiring felons convicted of any of 20 specific crimes to serve at least 90% of their sentences.

The parole board estimated the state will need to spend $1 billion to address the bed space shortage, and urged the Department of Corrections to include 13 new prisons in its next budget request.

Georgia Corrections Commissioner Wayne Garner disputed the board's findings, stating they were politically motivated. Garner claimed the report was a "scare tactic to try to convince people that if they do anything further to restrict the Board of Pardons and Paroles through mandatory sentences or abolishing the board, it's only going to cause them to spend billions and billions of dollars."

Georgia's prison population has more than doubled from 18,000 in 1989 to 38,000 in 1998; the state spends $700 million a year on its corrections system.

To increase the amount ...

Ohio Sells Prison Records

The state of Ohio has sold its state prison records, dating back to 1972, to the on-line information service Lexis-Nexis. Other states are expected to follow.

Lexis-Nexis is a private on-line computer service that provides news, business and legal information. The service also features on-line access to vast databases, to which the Ohio prison records will be added. Lexis-Nexis charges $64 to $120 per hour to search its databases. Businesses increasingly want access to public records to make more complete background checks of prospective employees.

Critics charge that public records should be provided on-line by the state at a minimum cost. States say they can offer the same access, but it would be years before they would have the budget or staff to go on-line.

PLN monitors prison-related press clippings from Ohio, and has seen no mention of this issue; the Ohio media seems to consider it a non-story. Would that be the case, though, if the state were selling property tax or vehicle registration records? Would that not spark a firestorm of editorials reflecting the outrage of Ohio citizens concerned about privacy issues?

Inside Journal

PLRA Physical Injury Requirement Does Not Apply to Ex-Cons

The court of appeals for the Seventh circuit held that the PLRA's physical injury requirement does not apply to suits filed after a prisoner is released from prison. The court also held that secular substance abuse programs do not violate the constitution.

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 the July, 1998 issue of PLN we reported that the seventh circuit had upheld the constitutionality of § 1997e(e) in Zehner v. Trigg , 133 F.3d 459 (7th Cir. 1997). This ruling limits the statute's reach.

James Kerr, a Wisconsin state prisoner, successfully challenged the religious nature of various prison substance abuse programs. See: Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996)[ PLN , June, 1997]. Kerr then tried secular substance abuse programs and filed the instant suit claiming they constituted "brainwashing" which violated his eighth amendment rights. Kerr had been released from prison when he filed this suit, seeking only money damages. The ...

No Administrative Exhaustion for Bivens Suit

No Administrative Exhaustion for Bivens Suits

The court of appeals for the Ninth and Tenth circuits held that federal prisoners filing Bivens suits for money damages against Bureau of Prisons (BOP) officials need not exhaust administrative remedies where congress has made no provision for an award of money damages. The ruling is significant because it limits the reach of the Prison Litigation Reform Act's (PLRA) exhaustion requirement.

Jonathan Garrett, a BOP prisoner and PLN subscriber, filed a Bivens suit claiming various BOP officials violated his Eighth amendment rights when they used excessive force in responding to a fist fight he was involved in. Garrett also claimed the defendants showed deliberate indifference to his serious medical needs by failing to promptly treat a head injury and shoulder separation he suffered during the incident.

The district court dismissed the suit because Garrett had not exhausted his administrative remedies under the PLRA. 42 U.S.C. § 1997e(a) states: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison or other correctional facility, until such administrative remedies as are available are exhausted." The ...

FRCP 12(b)(6) Standard Applied to PLRA Dismissals

The court of appeals for the Fifth circuit held that district court dismissals of prisoner lawsuits for failure to state a claim under 42 U.S.C. § 1997e(c) are subject to de novo review on appeal under the Federal Rules of Civil Procedure (FRCP) 12(b)(6) standard. Timothy Bazrowx, a Texas state prisoner filed suit for unspecified civil rights violations. Bazrowx paid the filing fee which did not allow the district court to dismiss the suit under 28 U.S.C. § 1915(e)(2), which applies only to in forma pauperis suits. Instead, the court dismissed the suit without prejudice pursuant to 42 U.S.C. § 1997e(c). The court of appeals affirmed the dismissal.

Both § 1915(e)(2) and § 1997e(c) require district courts to review prisoner lawsuits and dismiss them if the complaint fails to state a claim upon which relief can be granted. While three circuits have held that the FRCP 12(b)(6) standard of de novo appellate review applies to § 1915 dismissals, until now no circuit court has addressed § 1997e(c) dismissals. The court adopted the Rule 12(b)(6) de novo review standard for appeals from § 1997e(c) dismissals.

The court held ...

No Exhaustion Required for Money Damage Claims

A federal district court in Illinois held that where prison administrative remedies do not provide for money damages there is no administrative remedy available for prisoner plaintiffs to exhaust within the meaning of 42 U.S.C. § 1997e(a) of the PLRA. Section 1997e(a) requires that any available administrative remedies be exhausted before a prisoner or detainee files suit in federal court.

Martin Russo, an Illinois state prisoner, filed suit claiming his Eighth amendment rights were violated when prison officials failed to protect him from an attack by other prisoners that left him unconscious with various injuries. He also claimed that he did not receive adequate medical treatment for the injuries he had suffered. Russo sought money damages and injunctive relief in his suit. Before filing suit Russo did file a grievance claiming that a contract had been placed on him, as relief he sought transfer to a lower custody prison. Russo did not pursue the grievance beyond the first level.

The state moved for summary judgment, arguing they were entitled to dismissal of the suit under 42 U.S.C. § 1997e(a) because Russo had not exhausted the remedies available under the prison grievance system. The district court ...

Maryland Indigent Court Cost Suit Settled

On July 1, 1997, U.S. district court judge Marvin Garbis approved the settlement of a class action suit involving the collection of previously waived indigent court costs. In 1991 the Maryland legislature enacted a Budget Reconciliation Act, 1991 Md. Laws, Ch. 3, § 6, which stated:

"Notwithstanding any other provision ...

Utah Porn Ban Rescinded; Suit Settled

In 1997 Utah prison officials wrote a policy which prohibited prisoners in that state from ordering, receiving or possessing any written or printed materials that contained "sexually explicit materials." The policy also prohibited prisoners from receiving or possessing any written or printed materials that contained depictions of nudity or partial ...

Wisconsin Transfers Spark Protest

On Sunday June 28, 1998, prisoners at the Fox Lake Correctional Institution staged a protest against the scheduled transfer of 160 Wisconsin prisoners to a private prison in Oklahoma.

According to eye-witnesses, about 155 prisoners refused orders to return to their cells from a recreation area. Emergency response [goon] units were brought in and the prisoners were again ordered to clear the yard. All but about 25 complied. The remaining prisoners complied after yet another order.

After the three-hour standoff ended, state prison chief Michael Sullivan said only 12 of the prisoners involved were scheduled for transfer. "The rest just wanted to demonstrate," he said.

As of late July, the state of Wisconsin had exiled about 1,600 prisoners to Oklahoma, Tennessee, Texas and Minnesota; another 3,000 are expected to be shipped to other states.

Families and prison rights activists staged a protest outside the state capitol July 13. Many criticized the policy, saying it severs family ties. During the protest, state Rep. Scott Walker (R) held an impromptu news conference.

"I wish some of these family members had shown the same level of interest in their loved ones before they were sent to prison," Walker pontificated. "If they ...

Ohio Union Officials Protest Prison Labor

Ohio state prisoners performed 2.9 million hours of unpaid "community service" labor in 1997 at schools, fairgrounds, churches and other locations. But when the St. Clairsville, Ohio, Board of Education recruited unpaid prison labor in the construction of an outdoor classroom, representatives of the Upper Ohio Valley Building and Construction Trades Council stormed into a Board of Education meeting to vent their displeasure.

"The prisoners are coming out of their cells and taking our work," said council Vice President Orphy Klempa. "They are coming out and taking jobs away from tax-paying citizens of this county. We take offense -- strongly when we have the skilled people. We would appreciate the opportunity to build these projects."

School Board president Michael DeRosa countered that prison labor is only used on projects when funding is otherwise not available. "We don't want to rely on [prison labor]," he said. "We would love to build all new facilities, and that would put a lot of people to work for a long time."

Klempa said he doesn't believe funding, or lack thereof, should dictate the use of prison labor. "If the prison wasn't there," he pointed out, "you would still find a way ...

Phone Profits 'Benefit' Jail Detainees

The Stanislaus County (CA) Jail has a contract with Correctional Communication Corp., a private telephone company that caters to the Prison-Industrial Complex, to provide phone service to the jail's 1,100 captive consumers. There are more than 100 phones in the county's jails. More than 25,000 collect calls to detainees' friends and families were placed from these phones in 1997.

"They are in use 24 hours a day," assistant sheriff Zane Clark told the Modesto Bee . "Everybody's always using them. That's good because it keeps them in contact with the outside world."

It's also good, very good, for Stanislaus County, which receives a 42 percent commission (i.e. kickback) from the grossly inflated charges levied on the calls. The county reaped almost $500,000 from the telephone kickbacks in FY 1996-97.

The county can't do anything it wants with the money, though. State law requires that it be kept in a separate fund and used for "inmate welfare". During FY 96-97 the county expended $155,000 from the fund for such things as books and magazines, sports and recreational equipment, televisions, computers and other equipment, and funding for Friends Outside, a nonprofit group ...

Manslaughter Charges Against Three TX Guards Dismissed

In the July '97 issue of PLN we reported the beating death of Texas prisoner Gary Crenshaw, 31, at the hands of French Robertson unit guards. On June 30, 1997, a Jones County grand jury indicted Sgt. Monte Baker and guards Michael Helms and Bradley Johnson on manslaughter charges [See: "Three Texas Guards Indicted in Beating Death," PLN Oct '97]. One of the three has resigned, but two others are still employed by the Texas prison system.

Trial was set for August, 1998. But in July, state District Court Judge Quay Parker dismissed the charges against the three guards "amid questions about the wording of the indictment," reports the Houston Chronicle .

Crenshaw's family has filed a civil lawsuit in Abilene federal court. Attorneys for the family submitted a grainy video tape into evidence. The tape shows guards carrying an unconscious and motionless Crenshaw, arms and ankles shackled, face down through several hallways to the prison infirmary -- but not until after a 10-minute delay. The family claims that Crenshaw's death resulted from a sadistic and brutal beating, coupled with the delay in providing medical treatment to the critically-injured man.

Houston Chronicle, Pecos Enterprise

CT Prisoners Pinched for Cost of Imprisonment

A1995 "get tough" state law mandated that the Connecticut Department of Correction write a regulation for assessing prisoners for the cost of their incarceration In 1997, that mandate was codified into sections 18-85a-1 to 18-85a-4 of the "Regulations of State Agencies: cost of incarceration, services and programs."

"The inmate's responsibility to pay the assessed cost of incarceration shall be discharged in part by a 10% deduction from all deposits made to the inmate's individual account including deposits made from work assignments."

In addition, the following deductions will be made for programs and services: Elective education programs, $3 per course; Vocational education programs, $3 per course; Participation in extended family visits, $10 per visit; Sick call, $3 per visit; Dental procedures, $3 per procedure; Eyeglasses, $3 per prescription; Laboratory testing fees for drug testing (where the results are positive), "actual costs of confirmation test."

The CT DOC began phasing in the co-pay provisions January 1, 1998. And in mid-1998, the DOC announced another budget squeeze: its 15,800 prisoners are now rationed to one roll of toilet paper per week. If a prisoner runs out, he or she "can borrow from a neighbor, or buy a roll at the ...

Four Indicted in Videotaped Brazoria Jail Beatings

FBI agents arrested three current and former Brazoria County jailers indicted July 29, 1998, on charges stemming from the infamous videotaped shakedown of Missouri prisoners in the Brazoria County "Rent-A-Jail." The three, Lester Arnold, David Cisneros and Robert Percival, along with former Capital Correctional Resources Inc. (CCRI) guard Wilton Wallace, are charged with one count of aiding and abetting the assault of Missouri prisoner Toby Hawthorne.

Hawthorne was kicked, shocked with a stun gun and bitten by a police dog. The abuse was graphically portrayed in a 30-minute CCRI "training video" recorded September 18, 1996. The tape later surfaced (as a result of discovery conducted in litigation initiated pro se by a Missouri prisoner) and was nationally televised in August, 1997. [ PLN , Nov. 1997]

Wallace was previously arrested June 8, 1998, and charged with another attack not caught on tape. In that indictment, Wallace is accused of slamming jail prisoner Clarence Fisher's face into a wall on November 7, 1996.

Wallace had been hired by CCRI despite a criminal record for beating prisoners while employed by the Texas prison system. [See: U.S. v. Wallace , 673 F.Supp 205 (S.D. Tex. 1987)]

On August 4, 1998, Wallace and ...

Sign Language Interpreters Required in Missouri

Sign Language Interpreters Required In Missouri

The federal district court in Missouri granted a deaf prisoner injunctive relief and partial summary judgment for prison officials' failure to provide a sign language interpreter at disciplinary hearings, routine medical visits, classification hearings, and educational programs.

Ronnie Randolph, a hearing impaired Missouri state prisoner with speech problems, is serving a life sentence. Even with hearing aids, he has difficulty understanding normal conversations. Randolph communicates with prison officials by gesturing, lip-reading, and limited verbal exchanges. He can read and write standard English, but has very limited verbal skills. To understand Randolph requires familiarity, patience, and very slow speech. However, he uses and understands American Sign Language.

Randolph received several disciplinary infractions yet no sign language interpreter was provided during the disciplinary hearing. He was also reclassified from general population to administrative segregation at a classification hearing with no interpreter present. He also complained that he needed an interpreter during medical care and education programs.

Randolph sued under §1983 alleging violations of various federal and state statutes, including the American With Disabilities Act (ADA) 42 U.S.C. § 12101 et seq., the Rehabilitation Act (RA) 29 U.S.C. § 701 et seq. and § 476.001 ...

UNICOR Worker Receives $928.32 for Lost Hand

The court of appeals for the Seventh Circuit held that a prisoner could bring a Bivens claim separate from any claim brought under a workers' compensation scheme. However, because the evidence of the prison officials' failure to protect did not rise to the level of deliberate indifference, summary judgment against the prisoner on his Eighth Amendment claim was affirmed.

In August 1989, a federal prisoner lost his right hand in a textile machine, while working for Federal Prison Industries (UNICOR) at Terre Haute. Because the injury was sustained while working for UNICOR, the prisoner was entitled to compensation pursuant to 18 U.S.C. § 4126 and the regulations promulgated thereunder. The prisoner was awarded $928.32 for lost wages, pursuant to 28 C.F.R. §§ 301.201-.204, and he is entitled to apply for additional compensation within forty-five days of his release from prison. Id. § 301.303.

In addition to the workers' compensation claim, the prisoner brought a Bivens claim against five prison officials, seeking millions in compensatory and punitive damages. However, the district court dismissed his in forma pauperis (IFP) petition on the ground that the complaint did not allege the subjective deliberate indifference to the prisoner's ...

Private Health Care Providers Denied Qualified Immunity

Afederal district court in Alabama held that private party doctors and health care providers are not entitled to qualified immunity when sued by prisoners for Eight Amendment violations. The court further held that the existence of an on-going class action involving similar claims did not preclude the plaintiff's individual claim.

Correctional Medical Services (CMS) provides mental health care for Alabama state prisoners. In order to cut costs, in other words to boost profits, CMS initiated a policy to get as many prisoners as possible off psychotropic drugs, to eliminate transfers to state psychiatric hospitals, and to underuse psychiatric care units.

Billy Roberts was a state prisoner in the custody of the Alabama DOC since 1978. Roberts suffered severe and recurrent psychiatric illness, including profound suicidal tendencies. In September 1995, Roberts was taking massive doses of Thorazine, plus other psychotropic medications. On September 19, 1995, CMS abruptly stopped Roberts' medications. Five days later he hung himself.

The following year, Roberts' son filed suit against the Alabama DOC, its commissioner, CMS, and three CMS employees. The CMS defendants subsequently moved for summary judgment claiming, inter alia, that they were entitled to qualified immunity, and that Roberts' claim was barred by res ...

FL DOC Violates Individuals with Disabilities Education Act

Afederal district court in Florida held that § 944.801(4), Fla. Stat. (1997), which permits prisoners under 22 years of age, who qualify for special educational services and programs pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415, to request a post-depri- vation due process hearing, was in conflict with the IDEA. The court further held that recent amendments to the IDEA do not permit the state to transfer the rights of an incarcerated disabled student's parents to the student simply because the student was convicted as an adult and incarcerated in an adult facility.

This case involves a 16 year-old Florida youth, who fit the criteria of the IDEA, and was determined eligible for an Individual Education Plan (IEP) by Palm Beach County. A month after the county developed the plan for the youth, he was sentenced to a two year term of imprisonment in connection with a criminal case in which he was treated as an adult.

Upon entry into the Florida DOC, the youth's IEP was ignored. In its stead, the DOC developed a Transition Plan (TP). In doing so, the DOC neglected to notify the youth's parents or ...

Sandin Analysis Hinges on Punishment Actually Imposed

The court of appeals for the Second circuit held that an analysis of whether due process is required for disciplinary hearings where segregation was imposed as punishment will turn on the punishment actually imposed, not the potential penalty. The court also held that a lower court erred when it considered prison disciplinary rules in effect at the time the lawsuit was filed rather than the rules in effect when the disciplinary hearing took place.

Harold Scott is a New York state prisoner who was infracted in 1986 for weapons possession and disobeying a guard's orders. He was found guilty and sentenced to 60 days in segregation. No good time credits were at issue because he was already serving a life sentence. Scott filed suit under 42 U.S.C. § 1983 claiming his right to due process was violated at the prison disciplinary hearing. The district court dismissed the suit, holding that no due process liberty interest was implicated because 60 days in segregation did not impose an "atypical or significant hardship" as required by Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995). The court held it was immaterial that a harsher sentence could have been ...

New Trial After Magistrate Conducts Jury Selection

The court of appeals for the Eleventh circuit held that a magistrate presiding over jury selection, when the plaintiff objects, constitutes reversible error and is not subject to a harmless error analysis. Albert Thomas, a Georgia state prisoner, sued state prison officials. When the case went to trial a magistrate presided over the jury selection process despite the fact that Thomas had not consented to a magistrate at trial. During and after jury selection Thomas repeatedly objected to the magistrate conducting voir dire and overseeing the jury selection process. To no avail. The case went to trial before a district judge and the jury returned a verdict in favor of the defendants. Thomas was pro se.

The court of appeals reversed and remanded for a new trial. Federal judges are appointed under Article III of the U.S. constitution while magistrates act under the statutory authority of 28 U.S.C. § 636. The result is that unless the parties to civil and criminal litigation consent, trials, dispositive rulings, jury selection, etc., must be conducted by Article III judges.

In Gomez v. United States , 490 U.S. 858, 109 S.Ct. 2237 (1989) the supreme court held that magistrates cannot conduct ...

Trial Required in New Jersey Diabetic Care Suit

Afederal district court denied New Jersey prison authorities their motion for summary judgment against diabetic prisoners' class action suit under 42 USC § 1983. The prisoners' complaint was that the medical care provided by the Adult Diagnostic and Treatment Center (ADTC) to treat their diabetic conditions is "uniformly and grossly inadequate as to constitute deliberate indifference to serious medical needs in violation of the Eighth Amendment to the United States Constitution."

The diabetic prisoners made two distinct claims underlying their complaint; (1) inadequate diet and, (2) inadequate medical care.

The prisoners' complaint with respect to diet is "that failure of the Defendants to provide a diet tailored to and adequate for the needs of insulin dependent diabetic inmates, in combination with other inadequacies in the care provided for their diabetes, constitutes deliberate indifference to serious medical needs."

The Defendants argued that the facts presented by them demonstrated the diabetic diets provided by the ADTC are constitutionally adequate. The court found to the contrary and noted the "Defendants lamely cite deposition of a food supervisor at ADTC, someone remarkably unlikely to be qualified to give an opinion as to what constitutes a medically appropriate diet for a diabetic." On this fact alone ...

Prisoner Attendance at Depositions Discussed

The court of appeals for the Sixth circuit held that a district court erred when it issued an order permitting a prisoner plaintiff to attend the pretrial deposition of prison officials conducted by his lawyer. In doing so, the court set forth standards lower courts should consider when reviewing motions for prisoners to attend depositions. Joseph Smith, an Ohio state prisoner, sued various prison officials for violating his constitutional rights. Counsel was appointed by the court and discovery began.

Various defendants were scheduled to be deposed at the prison Smith was located at. Smith sought to attend the deposition which the Ohio Department of Rehabilitation and Correction (DORC) refused. The DORC has a policy prohibiting prisoners from being present when their lawyers depose DORC employees. The claimed reasons for the policy are: to maintain staff authority; prevent prisoner aggrandizement; avoid unnecessary tension; protect staff morale and preserve limited resources. Smith filed a motion for an order to attend depositions in the case. The district court, relying on In Re Collins , 73 F.3d 614 (6th Cir. 1995), granted the motion. DORC officials then sought a writ of mandamus. The proceedings in the district court were stayed pending the outcome of ...

California Lifers Covered by Tolling Statute

The court of appeals for the Ninth circuit held that California prisoners serving sentences of life with the possibility of parole fall within California Civil Procedure Code § 352(a)(3), which tolls the statute of limitations for persons "in execution under the sentence of a criminal court for a term less than for life." Andres Martinez filed suit in federal court claiming prison officials used excessive force against him during a cell extraction. The district court dismissed the suit as time barred because it was filed after California's one year statute of limitations had run. The court of appeals reversed and remanded.

The court held the district court's dismissal was a final, appealable order. The court noted that state law governs both the statute of limitations and the tolling of the statute in federal 42 U.S.C. § 1983 actions.

The court held that Grasso v. McDonough Power Equipment' Inc , 264 Cal.App.2d 597, 70 Cal.Rptr. 458 (1968) is still good law. Grasso held that California state prisoners serving a life sentence benefit from section 352(a)(3). Thus, Grasso is dispositive. "Because Martinez can claim the benefit of section 352(a)(3), his claim is ...

Garnishment Proceeding Part of Underlying § 1983 Action

The court of appeals for the Seventh circuit held that proceedings to garnish the wages of civil rights defendants against whom judgment has been entered are part of the underlying civil rights actions and district courts retain jurisdiction to enforce the judgment.

While not a prison case this ruling will ...

Fifth Circuit Expands Qualified Immunity Defense

In a lengthy opinion which may have dire consequences for prisoners seeking to resist qualified immunity defenses, the Fifth Circuit held that city jail guards had a duty, which was clearly established in 1989, to protect prisoners from suicide. However, the court also held that intentionally leaving a blanket used in the suicide in an isolation cell with the suicidal prisoner after having removed her belt and shoelaces did not constitute deliberate indifference.

This is a complex case with a convoluted history. It contains lengthy excerpts from the en bane opinion on a previous interlocutory appeal published at 74 F.3d 633 (5th Cir. 1996) [PLN, Oct. 1996]. Tina Hare was jailed after being arrested for petty larceny and forgery in July, 1989. She phoned her husband shortly after being booked into jail. Hare's husband contacted her parents who went to the jail to post bond. However, Police Captain Billy Clyde Burns would not allow Hare to post bond until he interviewed her.

Hare had been scheduled to enter a drug rehabilitation program the next day. Sitting balled up in a fetal position, Hare agonized through the interview. Experiencing withdrawal from dilaudid she expressed anxiety and concern about being ...

News in Brief

AZ : In early 1998, 16 DOC guards were fired or quit for sexually harassing other employees or engaging in sexual misconduct with other employees at the Florence prison complex. Eight other guards were disciplined. The misconduct included guards having sex with each other in towers; making obscene phone calls; putting shaving cream on phone receivers and throwing water on other staff members. No prisoners were victimized in these escapades.

AZ : On July 10, 1998, Gregory Stephens escaped from the Maricopa (Phoenix) county jail by climbing a razor wire fence, stealing a construction pick up truck and ramming it to freedom through two chain link fences. A long time drug addict, Stephens was awaiting trial on drug charges.

AZ : On July 9, 1998, former prison warden Thomas Raymond Sullivan was sentenced to 24 years in prison for molesting three girls ranging in age from 8 to 15. Sullivan was fired from his job as Perryville warden.

AZ : On June 20, 1998, former AZ DOC guard and Maricopa superior court security guard Joseph Parra was sentenced to 19 years in prison after pleading guilty to child molestation charges. Parra met the victim after having an affair with her mother, another AZ DOC ...

Kansas Prisoners Entitled to Halfway House Credits

The Kansas court of appeals held that prisoners whose halfway house status is revoked are entitled to credit for the time spent in the facility, but are not entitled to credit for time spent on house arrest. Bradley Cordill, a Kansas state prisoner, was assigned to a community corrections program for 18 months. That placement was revoked and Cordill sent to prison. Cordill then filed a motion under K.S.A. 21-4614A in state district court seeking credit for the time he spent in the halfway house, on house arrest and in jail. The district court denied the motion.

The court of appeals affirmed in part, reversed in part and remanded. The court held that Kansas prisoners are entitled to credit for time spent in any community corrections program under K.S.A. 75-5290. The court relied on State v. Brasfield , 22 Kan.App.2d 623, 921 P.2d 834 (1996) in reaching this conclusion. However, Cordill was not entitled to credit for the time he spent on house arrest.

Whether Cordill was entitled to jail credit under K.S.A. 21-4614A for time spent in a halfway house is an open question. The court held the district court erred ...

Amnesty International Seeks Human Rights Abuse Info

Amnesty International Seeks Human Rights Abuse Info 

Amnesty International (A.I.) is working on a comprehensive report on human rights in the United States, inclusive of prisons, jails, and immigration detention centers. The primary purpose of this report is to document where there is systemic violation of human rights.

This is intended to be a documentary report with policy recommendations for the governmental agencies. It is anticipated that the final report will be issued by the end of 1999. A.I. is not able to do litigation research or provide representation for individual cases.

Areas covered by the prison, jail and immigration portion of this report may include the following: verbal/physical brutality or sexual assault (by both correctional staff and prisoners); use of restraints, electro-shock equipment and gas/chemical sprays; facility overcrowding; race, sexual orientation, nationality or language barriers as a factor in implementing policy; treatment of children/families (including location of incarceration limiting contact with family); holding children in adult facilities; adequacy and cost of health care services.

This list is not meant to be all inclusive. Suggestions for other areas are welcome.

This project seeks to document instances of human rights abuses and how they fit within ...

Denial of Legal Materials Sent by Relatives Upheld

The court of appeals for the Eighth circuit, sitting en banc, held that Missouri prison officials were entitled to qualified immunity from money damages for denying a prisoner a package of legal materials sent by a relative. The court held it was immaterial that the policy was only randomly applied. In doing so, the court reversed the panel ruling at Weiler v. Purkett , 104 F.3d 149 (8th Cir. 1997).

Clyde Weiler, a Missouri state prisoner, filed suit after prison officials censored a package of legal materials sent by Weiler's son. Missouri prison rules allow prisoners to receive packages only from lawyers or approved vendors. "Privileged mail" defines such mail as that sent to or from lawyers, judges, courts or government officials. The district court granted summary judgment to the defendants. Weiler appealed and in an unpublished ruling the eighth circuit reversed, holding that genuine issues of material fact were in dispute and required a trial to resolve. Weiler had presented affidavits from ten prisoners that stated they had received packages of legal materials sent to them by relatives. On remand the district court denied the defendants qualified immunity from money damages, which was affirmed on appeal at 104 ...

Failure to Protect in Prison Fight Violates 8th Amendment

Failure To Protect In Prison Fight Violates 8th Amendment

In 1994, the duty of guards to protect prisoners in prison fights was clearly established by Farmer v. Brennan, 511 U.S. 825 (1994) according to a federal district court in Texas. The survivors of Randy Payne, a Texas prisoner who suffered fatal injuries in a prison fight, sued prison guards and other officials for failure to take any steps to protect him. Payne arrived in close custody at the newly-constructed TDCJ-ID Terrell Unit on August 5, 1994.

Whites in close custody were greatly outnumbered by blacks and Hispanics. Prison administrators knew the racial imbalance and policy of housing prisoners from the same hometown together encouraged gangs who extorted "protection" in the form of prison commissary items and/or homosexual acts from white prisoners. Guards were instructed to remain alert for suspicious activity.

Payne was confronted with a demand to pay protection or fight the day he arrived. He chose to fight. Several violent altercations ensued throughout a section of the pod, including the third level shower area. All of the prisoners Payne fought were either black or Hispanic. Some used combination locks in a sock and/or steel-toed boots as ...

Alabama Counties Not Liable for Jail Conditions

The court of appeals for the eleventh circuit, sitting en banc, held that Alabama counties cannot be held liable for the operation of county jails. In doing so the court overturned prior circuit precedent on this issue.

Phillip Turquitt was killed by another prisoner while being held in the Jefferson County, Alabama, jail. His estate filed suit against Jefferson county, the sheriff and several deputies in their individual capacities under 42 U.S.C. § 1983.

The county filed a motion to dismiss or for summary judgment, claiming that the sheriff, who is the jail's official policy maker, acts for the state rather than the county in administering the jail. The district court denied the motion. See: Turquitt v. Jefferson County , 929 F. Supp. 1451 (ND AL 1996), holding it was bound by Parker v. Williams , 862 F.2d 1471 (11th Cir. 1989). Parker held that in Alabama the sheriff is the county policymaker with regard to the operation of county jails.

Jefferson county filed an interlocutory appeal. The eleventh circuit granted an en banc hearing and unanimously vacated and remanded. This issue is important because suits against the states in federal court are barred by the Eleventh amendment. Counties ...

Nebraska Prisoners Have Right to Defend Against Suit

The Nebraska court of appeals held that prisoners have a due process right to defend themselves against lawsuits. Frances Thompson, an animal rights activist, and PLN subscriber, imprisoned in Nebraska, was sued by the University of Nebraska for unpaid student loans. Thompson filed a timely, pro se, answer to the plaintiff's complaint asserting various defenses. Thompson also filed a motion that hearings on the motions be held telephonically and if the matter went to trial that she either be physically transported to the court or that the trial be held telephonically. Both motions were denied.

A "trial" was held in Lancaster county court and Thompson was not allowed to appear. The proceeding lasted, literally, about two minutes. The court of appeals reversed and remanded.

The appeals court held that when a defendant files an answer, "the fact that the defendant does not appear for trial does not entitled the plaintiff to a judgment without proof of the facts constituting the plaintiff's cause of action, unless the facts admitted by the defendant in the answer make out a prima facie case in the plaintiff's favor." The plaintiff produced no evidence whatsoever to support its claim. "Therefore, the judgement ...


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