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Prison Legal News: November, 1998

Issue PDF
Volume 9, Number 11

In this issue:

  1. Virginia Prisons 'Wide Open to Business' (p 1)
  2. State Audit Exposes VCE Mismanagement (p 3)
  3. Texas May Not Retroactively Stop Mandatory Release (p 4)
  4. Notes from the Unrepenitentiary (p 5)
  5. Restorative Justice Booklet Available (p 5)
  6. Youngstown Break-Out Leads to Political, Financial Fall-Out (p 6)
  7. Fired SCI Greene Guards Regain Jobs (p 6)
  8. News in Brief (p 7)
  9. No Refund of PLRA Fees (p 8)
  10. PLRA Termination Provision Constitutional in Eleventh Circuit (p 8)
  11. MT Prisoners Win Damages and Fees in Riot Suit (p 9)
  12. No Exhaustion Required in Guard Attack (p 9)
  13. Failure to Exhaust Administrative Remedies Not Jurisdictional (p 9)
  14. State Auditor Blasts Texas Correctional Industries (p 10)
  15. DC Circuit Resurrects Hewitt v. Helms (p 12)
  16. Abuses Continue at Private INS Facility (p 13)
  17. NY Seg Case Dismissed on Remand (p 13)
  18. With Advocates Lke These: Capitulation, Collaboration and CURE-Ohio (p 14)
  19. Texas Prisoners Bake to Death (p 16)
  20. No Immunity in Failure to Protect Informant Suit (p 16)
  21. Hawaii Prisoners Challenge 'Sex Offender' Label (p 18)
  22. NC AG Opinions Reversed in Consecutive Sentence Servitude (p 19)
  23. Washington Good Time Loss Implicates Due Process (p 19)
  24. Medical Restraint Requires Doctor's Supervision (p 20)
  25. Successive Texas Habeas Corpus Defined (p 20)
  26. ADA/RA Apply to Jails and Give Deaf Right to TDD (p 21)
  27. No Qualified Immunity for Private Health Care Provider (p 21)
  28. Liberty Interest Created By Fine (p 22)
  29. Holding Pretrial Detainee in Prison May Violate Due Process (p 22)
  30. Colorado Supreme Court Holds Utility Commission Lacks Jurisdiction Over Prison Phone Gouging (p 23)
  31. BOP Sentence Reduction Granted to Non-Violent Offender (p 23)
  32. Trial Required in Kosher Diet Claim (p 24)
  33. D.C. Smoking Injunction Reversed (p 24)
  34. Segregation Requires Less Due Process (p 25)
  35. $28,719 Assessed Against Pro Se Litigant (p 25)

Virginia Prisons 'Wide Open to Business'

Slave Labor Meets Hollywood

In a warehouse near the Baltimore airport in 1997, California businessman Trek Kelly observed a supplier peeling tags off crates of merchandise. Later he found a tag that had been overlooked. A tag with the words "Virginia State Prisons" printed on it.

At the time, Kelly ...

State Audit Exposes VCE Mismanagement

Aweek after the Island of Dr. Moreau scandal broke, the Virginia Auditor of Public Accounts released an audit of Virginia Correctional Enterprises (VCE) covering the period between July 1, 1996 and May 11, 1998. The report said that VCE posted an operating loss of $412,000 in FY 1997 and ...

Texas May Not Retroactively Stop Mandatory Release

The Texas Court of Criminal Appeals has held that Texas cannot reinterpret a law to retroactively deny a state prisoner mandatory release. Randy Sullivan Schroeter, a Texas state prisoner, was convicted of indecency with a child (IWC) in 1994 and sentenced to three years imprisonment. By July, 1997, the sum ...

Notes from the Unrepenitentiary

Arecent issue of PLN called for articles and information from women prisoners. I hope women throughout the state and federal prison systems will respond to this request. If we are ever to change the hideous situations we face at the hands of the prosecutors, judges, and prisoncrats, we must speak ...

Restorative Justice Booklet Available

Review by Dan Pens

Long time readers of PLN know that I have an interest in Restorative Justice. I have reviewed and recommended several publications on the topic. I bring your attention now to a very well-produced and affordable booklet that offers an introduction to the subject.

The Campaign for ...

Youngstown Break-Out Leads to Political, Financial Fall-Out

On July 25, 1998 a half-dozen prisoners, including four convicted murderers, cut through two fences and escaped from the CCA-operated Northeast Ohio Correctional Center in Youngstown, Ohio. According to Warden Jimmy Turner the successful break-out was due to errors by prison employees -- including guards leaving their posts, not watching their ...

Fired SCI Greene Guards Regain Jobs

After months of negotiation with the union, the Pennsylvania DOC agreed to reinstate two guards who were fired from its Greene County prison. George Reposky and Mark Powell were fired and other guards were disciplined in May 1998 for using excessive force against SCI Greene prisoners. [See: "Whitewash in Greene ...

News in Brief

CA: Effective September 1, 1998, smoking and tobacco possession by prisoners is banned at the California Rehabilitation Center in Norco and 12 state prison reception centers. The tobacco ban was ordered by Governor Pete Wilson as a first step towards ending smoking by prisoners throughout the prison system. Wilson claims ...

No Refund of PLRA Fees

The court of appeals for the Seventh circuit held that the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA) are constitutional and prisoners do not get a refund of the partial filing fees they pay if they later refuse to pay the entire fee. Rudolph Lucien ...

PLRA Termination Provision Constitutional in Eleventh Circuit

The court of appeals for the Eleventh circuit held that the termination provision of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b)(2), does not violate the separation-of-powers doctrine, the due process clause, nor the equal protection clause of the fifth amendment.

For years Florida death ...

MT Prisoners Win Damages and Fees in Riot Suit

On April 2, 1998, a federal jury in Montana ruled that state prison officials had violated the Eighth amendment rights of 13 prisoners. In September, 1991, a riot occurred at the Montana State Prison in Deer Lodge. Five prisoners in protective custody were killed by other prisoners during the uprising ...

No Exhaustion Required in Guard Attack

A federal district court in New York held that 42 U.S.C. § 1997e of the PLRA did not require a prisoner to exhaust administrative remedies before filing suit over being beaten by prison guards. Candido Rodriguez is a New York state prisoner who filed suit claiming prison guards beat ...

Failure to Exhaust Administrative Remedies Not Jurisdictional

A federal district court in California held that 42 U.S.C. § 1997e(a) is not a jurisdictional prerequisite for federal courts to hear prisoner lawsuits; administrative exhaustion under that statute is not required when a prisoner seeks money damages as relief and the prison grievance system does not provide ...

State Auditor Blasts Texas Correctional Industries

by Matthew T. Clarke

The Texas State Auditor has issued a report on Management Controls at Texas Correctional Industries (TCI) concluding that its management controls are so poor TCI cannot fulfill its statutory mandates of training prisoners for post-incarceration jobs and reducing the costs of incarceration.

In Fiscal Year 1996-7 ...

DC Circuit Resurrects Hewitt v. Helms

The court of appeals for the DC Circuit held that prisoners challenging placement in administrative segregation (ad seg) are not required to petition for habeas corpus relief. The case was remanded for further record development regarding what occurred at the prisoner's ad seg hearing, so a determination could be ...

Abuses Continue at Private INS Facility

The Immigration and Naturalization Service (INS) continues to experience problems at a privately -operated detention center in Elizabeth, New Jersey. In June 1995 detainees rioted at the facility, which was then run by Esmore Correctional Services. The detainees mostly asylum-seekers who had not been charged with any crime complained of ...

NY Seg Case Dismissed on Remand

In the March, 1998, issue of PLN we reported Sealey v. Giltner , 116 F.3d 47 (2nd Cir. 1997) in which the second circuit reversed and remanded Sealey v. Coughlin , 857 F. Supp. 214 (ND NY 1994). The case involves Emmeth Sealey, a New York state prisoner who spent 152 ...

With Advocates Lke These: Capitulation, Collaboration and CURE-Ohio

In the May, 1998, issue of PLN we reported on the November 1, 1997, statewide work strike in Ohio. The purpose of this article isn't to rehash last year's events but to examine basic questions of advocacy versus activism, opportunism and collaboration. While this article focuses on today ...

Texas Prisoners Bake to Death

More than one hundred people have died during a searing heat wave in Texas this past summer, including at least three prisoners. Dozens of convicts have been treated for heat-related health problems. "I've been with the system 13 years and this has been the most extreme heat we've ...

No Immunity in Failure to Protect Informant Suit

In the April, 1998, issue of PLN we reported Dowling v. Hannigan , 968 F. Supp. 610 (D KS 1997). The case involved Kansas state prisoner and informant Mark Dowling, who claimed prison officials were deliberately indifferent to his safety when one of his victims slashed him with a razor knife ...

Hawaii Prisoners Challenge 'Sex Offender' Label

Hawaii prisoners labeled as "sex offenders" and ordered to participate in a sex offender treatment program as a pre-condition of parole eligibility have a protected liberty interest in receiving minimal due process before being thus labeled.

In 1992, Hawaii enacted a law authorizing the creation of a prison sex offender ...

NC AG Opinions Reversed in Consecutive Sentence Servitude

By Roger Grubb

The North Carolina Court of Appeals handed North Carolina prisoners a long sought victory in how consecutive sentences are computed by the Department of Correction for purposes of determining parole eligibility.

On August 5, 1997, the Court reversed a lower court ruling that had upheld the Department ...

Washington Good Time Loss Implicates Due Process

AWashington state appeals court held that prisoners have a due process right to challenge the validity of prior minor infractions at disciplinary hearings that involve the loss of good time for allegedly incurring more than four minor infractions in a six month period. Washington prisoners can receive "minor infractions" which ...

Medical Restraint Requires Doctor's Supervision

The Eighth Circuit has held that the law was clearly established in 1988 requiring specific approval from a doctor when a prisoner is placed in segregation and restraints for psychiatric treatment purposes.

Eddie Buckley, an Iowa state prisoner, sued alleging that he was routinely subjected to segregation and restraints without ...

Successive Texas Habeas Corpus Defined

The Texas Court of Criminal Appeals has held that a state post-conviction petition for a writ of habeas corpus (petition) which does not challenge the prosecution or judgment does not count as a first petition for purposes of the state law restricting successive petitions, Article 11.07, Section 4, Texas ...

ADA/RA Apply to Jails and Give Deaf Right to TDD

The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., (ADA) and Rehabilitation Act of 1973, 29 U.S.C. § 794, (RA) apply to jails and require that deaf prisoners be given access to alternate assistance in using a telephone, such as a Telephone Text Device ...

No Qualified Immunity for Private Health Care Provider

Afederal district court in Florida denied qualified immunity to a private provider of health care services to a county jail. Health care personnel failed to give a prisoner with a history of heart attacks her heart medication and ignored her complaints of chest pains until she suffered a fatal heart ...

Liberty Interest Created By Fine

A federal district court in Nevada held that a Nevada prisoner had no liberty interest in remaining free of one year of disciplinary segregation. The court also ruled that the prisoner had a property interest in money taken from his account for restitution and therefore could challenge the adequacy of ...

Holding Pretrial Detainee in Prison May Violate Due Process

A federal district court in New York ruled that holding a prisoner in a prison ten months after his conviction was reversed may violate the due process clause and entitle him to damages. In 1991 Vincent Robbins was convicted of assault and attempted robbery in New York state court and ...

Colorado Supreme Court Holds Utility Commission Lacks Jurisdiction Over Prison Phone Gouging

The Colorado state supreme court held that the state Public Utilities Commission (PUC) had no jurisdiction over the Colorado Department of Corrections (DOC) with regards to inflated phone costs charged to prisoners. Several Colorado state prisoners filed complaints with the PUC claiming that the Inmate Telephone System (ITS) implemented by ...

BOP Sentence Reduction Granted to Non-Violent Offender

Afederal district court in Oregon granted a federal prisoner's petition for habeas corpus because the Bureau of Prisons (BOP) had wrongly denied him a one year sentence reduction. Kenneth Johnson is a federal prisoner who was convicted of possessing stolen explosives. He successfully completed a 500 hour drug and ...

Trial Required in Kosher Diet Claim

Afederal district court in Kansas held that a trial was required to resolve disputed issues of material fact in a Jewish prisoner's lawsuit over the denial of a Kosher diet. Jimmy Searles is a Kansas state prisoner. While housed at the Hutchinson Correctional Facility Searles requested a Kosher diet ...

D.C. Smoking Injunction Reversed

In the December, 1997, issue of PLN we reported Crowder v. District of Columbia , 959 F. Supp. 6 (D DC 1997), where a district court in the District of Columbia (D.C.) issued an injunction requiring that three prisoners in the D.C. prison system not be exposed to second ...

Segregation Requires Less Due Process

The court of appeals for the Seventh circuit held that prisoners facing only the prospect of disciplinary segregation are entitled to less due process than when the sanction imposed involves the loss of good time credits. The court also questioned, but did not decide, whether such disciplinary cases can be ...

$28,719 Assessed Against Pro Se Litigant

Afederal district court in Virginia assessed $28,719.25 in defendants' attorney fees against an unsuccessful pro se prisoner litigant but declined to impose Rule 11 sanctions. John McGlothlin, a Virginia state prisoner, filed suit claiming violation of his right to the free exercise of his religion by prison officials ...