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Prisoner Education Guide

Prison Legal News: November, 1998

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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, president of a company that supplies promotional goods to movie studios, was desperately trying to track down a long-overdue shipment of thousands of promotional vests for a 1996 movie, The Island of Dr. Moreau . New Line Home Video, which had ordered the vests from Kelly's company, Kaioti Gear, was hounding him daily and threatening a lawsuit over the delay. Meanwhile, Kelly's supplier was demanding more money, making excuses about disgruntled workers in foreign factories, and showing Kelly a pile of shredded material instead of the finished vests.

"The workers were on strike and they had thrown all the materials out of the factory because we weren't paying them enough money," is the explanation Kelly remembers getting from the supplier, Edward R. Dovner, a Massachusetts businessman.

But there was no strike by foreign workers, no overseas sweatshop. Instead, there were five Virginia prisons where, for several months in ...

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 has liabilities of $5.1 million but only $3.5 million in liquid assets it could call on to pay its bills, including less than $150,000 in cash.

The audit report criticized VCE for lacking "adequate processes to review and evaluate joint venture contracts... lacks the ability to manage its cash flow... because the joint venture contracts lack sufficient monitoring controls and procedures."

The audit team "found over twenty customers [in VCE's Customer Master File] who did not appear to be government entities or non-profit organizations.... VCE management was unable to provide justification, letters of understanding, or other support establishing the credibility and validity of these customers... VCE s failure to validate its customers and subsequently conduct business with unallowable customers exposes the Commonwealth to unnecessary potential legal liabilities and contradicts public policies."

VCE's cash flow problems, say the report, began in the fall of 1996 when ...

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 of his flat time and good time was almost five years, yet he had not been released.

At the time of the offense, Article 42.18, § 8(c), Texas Code of Criminal Procedure, made persons convicted of the specific offenses listed in the statute ineligible for mandatory release. It stated that persons convicted of all other offenses shall be released when the sum of their good time and flat time equaled their sentence. IWC was not included in the list. Two similar lists included IWC effectively making a person convicted of IWC potentially subject to mandatory release before becoming eligible for parole. A later legislature stated that the intent of the previous legislature was to include IWC in the ineligible-for-mandatory-release list. In 1997 the list was amended to include IWC.

The Texas Attorney General issued an opinion that persons, such as Schroeter, convicted of IWC which occurred in the four ...

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 up and we must speak for ourselves.

Who can understand and describe, as we can, the abusive ways we are kept in line? The issue of sexual abuse and harassment comes to light only when an incident occurs that is so outrageous that even the system can't get away with ignoring it. And that is rare.

But women prisoners know that the foundation for that abuse is laid everyday: when male guards patrol our housing units, where we have no privacy to change clothes, bathe, or use the bathroom. When male guards joke about doing strip searches in place of the women guards or when whey pat search us daily. When male guards yell at women prisoners (as they do all the time), raising the unspoken threat of violence, and often triggering memories of how a young girl was frightened and overpowered by an adult male who misused his ...

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 Equity -- Restorative Justice (CERJ),in conjunction with CURE-NY, has produced a 24-page primer on Restorative Justice. it's pages are packed with a wealth of criminal justice statistics and information -- well worth the effort to obtain a copy, even if you have little interest in Restorative Justice.

The booklet contains information and statistics about drug treatment and its effectiveness as an alternative to imprisonment. Also included are statistics and info supportive of prison education. All of the information is supported by an extensive bibliography of source material cited.

All in all, you'd be hard pressed to find as much quality crimina1 justice information in as small a package anywhere else.

Copies of the booklet are available for $1 (10 for $5, 50 for $10). Mail orders with your name, address info, and quantity desired to: Kim Pathways; 16 Young Road; Katonah, NY 10536 (email cureny Copies will ...

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 designated areas and not promptly responding to motion sensor alarms.

The escape was the latest in a series of embarrassing incidents at the problem-plagued facility, which houses approximately 1,500 prisoners from Washington, D.C. [see PLN , Oct. 1997; June 1998]. CCA previously had been under a court order to remove maximum-security prisoners from the medium-security prison. Michael Quinlan, the company's director of planning, promised that CCA would learn from its mistakes and would improve staff training at the facility.

Ohio lawmakers, however, weren't interested in apologies or excuses. State Senator Jeff Johnson observed that the escape highlighted a major distinction between privately-operated and public prisons. "I've been to Ohio prisons, and we have some problems," he said. "The difference is if the manager screws up and lets six people escape in broad daylight, we have the authority to get him out of there."

Also of concern ...

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 County", Sept. '98 PLN ].

The union might have quickly settled grievances that were filed by 11 other guards who were disciplined, "but we weren't going to settle anything without those two," said William Herbert, president of the AFSCME local that represents state prison guards.

Two senior guards, Lts .John Tustin and Scott Nickleson, were also fired, along with nine other senior guards who were demoted, suspended, or transferred. They held management positions and do not belong to the union. Herbert said they are negotiating their own deal with the state Civil Service Commission.

Reposky was transferred to SCI Waynesburg and Powell to SCI Pittsburgh. Neither received back pay for the three months they were out of work (and collecting unemployment compensation) but retain their seniority and pay rate.

DOC Spokesperson Michael Lukens said Reposky and Powell "realized what they've done [using excessive force against prisoners] is inconsistent with ...

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 the ban is to reduce prisoner health care expenses and arson.

CA: On August 11, 1998, prisoner Michael Benton was beaten to death at the California State Prison-Sacramento (AKA New Folsom). Prisoner Jiles Wallace has been placed in segregation as a suspect in the killing. Benton' murder was the fourth at New Folsom since December, 1997.

CA: On August 18, 1998, The Judicial Council of the Ninth U.S. Circuit Court of Appeals reprimanded federal judge James Ware. For years Ware, who is black, had told audiences he was inspired to become a lawyer after his 13 year onl brother was killed by white youths in his native Alabama in 1963. This was a lie as the victim's brother was another James Ware. The fraud was exposed by Alabama federal judge U.W. Clemon who heard judge Ware describe the incident on television. Clemon knew the victim's family ...

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 is an Illinois state prisoner and frequent filer of frivolous lawsuits. Lucien filed the instant suit challenging his classification as an escape risk. The district court conditionally granted Lucien's motion to proceed IFP but required that he pay $18 towards the filing fee. Lucien refused to pay the $18 and the court refused to file the complaint. Lucien appealed and the court of appeals affirmed.

Lucien filed his suit in the district court before the PLRA was enacted, when district courts had discretion in imposing partial filing fees as a condition to granting IFP status. The appeals court noted that when the lower court assessed the $18 filing fee Lucien had $60 in his prison trust account and another $144 entered his account before he notified the court of his refusal to pay. "Lucien thought $18 excessive-which implies he did not think much of his chances of success." The ...

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 row prisoners enjoyed virtually no outdoor exercise. Indeed, one prisoner's leg bone snapped as a result of lack of exercise. In 1981 a lawsuit was commenced and a class certified. Two years later the court approved a consent decree requiring prison officials to provide two two-hour exercises sessions per week, weather permitting.

After several years of non compliance, this court found prison officials in contempt, and entered a highly detailed remedial order. While the appeal was pending, the PLRA became law. In response, the Eleventh circuit remanded the ease to determine if the situation met the PLRA conditions that preclude termination. On remand the trial court concluded that § 3626(b)(2) is unconstitutional.

On the subsequent appeal the Eleventh circuit joined the Fourth, Plyler v. Moore , 100 F.3d 365 (1996), and the Eighth circuits, Gavin v. Branstad , 122 F.3d 1081 (1997), in holding § 3626(b)(2)'s ...

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, kicked and punched him without provocation. The district court issued a brief, vague ruling allowing the suit to proceed.

Without stating whether Rodriguez had exhausted his administrative remedies, the court notes several cases, most of them unpublished, which hold that § 1997e requires that prisoners exhaust administrative remedies before they file suit.

The court distinguished this case from the others. "Notably, however, the claims in the cases above all concern facts where corrections officers 'failed to protect' an inmate from being assaulted by other inmates. The cases cited do not concern claims alleging that corrections officers themselves assaulted the plaintiff, in contrast to the case at bar. Under Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970 (1994), assault claims are not claims that challenge the conditions of a prisoner's confinement, that is, assault claims are distinguishable from failure to protect claims and from claims regarding whether adequate ...

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 for money damages; and that section 1997e(a) does not require prisoners to file state tort claims seeking monetary relief before filing suit for inadequate medical care.

Bill Lacey, a California state prisoner, claimed that his knees were injured in the course of his prison employment and that he did not receive adequate medical care when he requested it. Lacey bypassed the first formal level of the prison's grievance system. He later filed suit under 42 U.S.C. § 1983, seeking only money damages for relief. The defendant prison officials moved to dismiss the suit, claiming the court lacked subject matter jurisdiction to hear the lawsuit because Lacey had failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) before filing suit. The court denied the motion to dismiss.

The court held that under Weinberger v. Salfi , 422 U.S. 749 (1975) § 1997e(a) does not ...

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, the Texas Department of Criminal Justice (TDCJ) incarcerated over 140,000 prisoners in approximately 150 prisons. Almost all medically fit TDCJ prisoners were required to work. TCI operated 44 factories and three warehouses, providing jobs for 8,000 prisoners, manufacturing uniforms, mattresses, shoes and other items for TDCJ and furniture, license plates, and jail steel for other governmental agencies. Total sales was nearly $96,000,000.

The current monthly financial information on TCI factories is inaccurate because they are produced using an accounting system that does not adequately allocate costs to products. Outdated costs of materials are used in reports. The calculation of overhead costs is severely flawed. Thus, TCI cannot tell if its calculated costs reflect actual costs. Furthermore, prices are often set at 10% below competitors' prices, regardless of production costs. Therefore, TCI cannot tell if any of its factories make a profit.

TCI's financial statements are ...

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 made as to whether he received all the process he was due.

In October 1992, a prisoner in the medium-security unit of the District of Columbia's Lorton prison became embroiled in a confrontation with a guard. The prisoner allegedly hit the guard with a urine/feces mixture, and threatened to "get" him. A search of the prisoner's cell turned up a sharpened toothbrush.

The prisoner was subsequently charged with three disciplinary infractions. However, no hearings were ever held, nor was any punishment expressly imposed. Instead, the day after the incident, the prisoner was transferred to ad seg at Lorton's maximum-security facility.

Two days later, the prisoner was brought before Lorton's "Housing Board" to determine the propriety of his assignment to ad seg. However, the prisoner received no notice of the hearing. While the record appeared to indicate that the prisoner was arguing against involuntary protective confinement ...

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 severe abuse and human rights violations by the poorly-paid and under-trained Esmore staff. [ PLN , Sept. 1995]. The company lost its contract to operate the center, changed its name to Correctional Services Corporation and relocated to Florida.

The INS facility reopened in 1997 under the management of Corrections Corporation of America (CCA), and was soon lauded as a national model for privately-operated detention services. But now the former assistant warden at the center, Steve Townsend, has filed suit claiming he was fired by CCA after informing the INS that detainees were forcibly sedated and improperly restrained. Townsend said that both his supervisor and CCA corporate office ordered him to "illegally cover up and conceal such actions."

Initially the INS denied that detainees had been involuntarily sedated, but later admitted the allegations were true after reviewing medical records from the facility. The agency then decided the failure to report the sedation's ...

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 days in administrative segregation while undergoing various "investigations." He filed suit claiming the ad seg violated his due process rights. The district court dismissed the case. The appeals court reversed and remanded, instructing the lower court to develop a factual record to determine if Sealey had a liberty interest in remaining free from segregation.

On remand the case went to trial before a jury which found that Sealey's segregation placement was administrative, not punitive, and that a hearing officer violated Sealey's procedural due process rights. Sealey was awarded $1 in nominal damages. The district court then granted the defendants judgement as a matter of law under Fed.R.Civ.P. 50(a) and (b), holding that Sealey had no liberty interest under Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995) in avoiding ad seg placement. The court held that Sealey had failed to show ...

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's prison reform movement the issues are neither new nor restricted to prison groups.

On October 16, 1997, the Call and Post , a black community newspaper in Cleveland, ran a letter announcing a work strike on November 1, 1997, to protest the abusive practices of the Ohio parole board which is massively extending prisoners' sentences. The timing of the strike, a Saturday, was questionable. A communiqué by the Ohio Prisoner Rights Union called on all Ohio prisoners to remain in their cells and refuse all prison activities "until the government of the state of Ohio guarantees the 39,000 prisoners being discriminated against through the new sentencing laws (HB 2, 1996) and at the hands of the Ohio parole authorities, that we too will receive equal justice."

The Ohio Department of Rehabilitation and Correction (DORC) responded by issuing a memo from DORC chief Reginald Wilkinson threatening even further collective repression ...

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 ever experienced," said Bob Koenig, risk manager for the Texas Dept. of Criminal Justice.

The only air-conditioned areas in state prisons are classrooms and work sites that require lower temperatures to operate computers. All other areas, including the sweltering cell blocks, have to be cooled by fans. Prisoners must purchase their own fans, which sell on the commissary for $7.95. Those who can't afford them go without -- in indoor temperatures that have reached an estimated 130 degrees.

Two convicts died on un-air-conditioned buses while being transferred to different units, one in May and one in June. And on July 9, 1998, Emile Duhamel, a mentally ill prisoner on death row, died due to heat-related causes. He was taking medication that made him especially sensitive to high temperatures; guards had taken away his fan. According to prison officials Duhamel died of natural causes. His body was cremated before his ...

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. The court denied the defendants' motion for summary judgment and set the case for trial.

In a last ditch effort to avoid a trial the defendants filed another motion for summary judgment, rearguing the Eighth amendment claim and this time claiming they were entitled to qualified immunity from money damages. This motion was denied.

The court noted the record on the Eighth amendment claim had not changed since its last ruling. Whether the defendants' actions rose to the level of deliberate indifference required a trial to resolve because material facts were in dispute.

The court denied the defendants qualified immunity from damages, holding that since at least n 1990 ~ prisoners have a constitutional right to reasonable protection from attacks by other inmates." The disputed record made a ruling on the immunity issue inappropriate. The case was again set for trial. See: Dowling v. Hannigan , 995 F. Supp. 1188 (D KS ...

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 treatment program (SOTP) and requiring prisoners identified as sex offenders to complete the program before they could be considered for parole. The Hawaii statute defines a sex offender as someone "having been convicted, at any time, of any sex offense or [who] engaged in sexual misconduct during the course of an offense."

Even though parole eligibility for sex offenders hinges on completion of the SOTP, the state characterizes the program as '"voluntary" and participants are required to complete and sign a "SOTP contract and consent to treat" form prior to admission into the program.

Hawaii prisoners B.A.J. Neal and Marshall Martinez were labeled as sex offenders, refused to attend the SOTP, and denied parole eligibility. Neal was indicted in 1990 on robbery, kidnapping, and sexual assault charges. As part of a later plea agreement, the sexual assault charges were dismissed. Martinez was convicted of attempted rape in 1984 ...

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 of Corrections' compliance to Attorney General opinions instead of the prescribed state statute in computing consecutive sentences for parole purposes.

N.C. State statute G.S. 15A-1354(b) has always stipulated that when multiple sentences are imposed in a single session of court they must be aggregated to reflect the statutory minimums of each sentence for purposes of parole eligibility. However, Attorney Genera1 Easley in 1992 issued opinions interpreting the statute as authorizing the Department of Correction to only set a parole eligibility date on one sentence at a time by which the prisoner was eligible for "paper parole" to his next sentence. The prisoner's actual parole eligibility date to society was withheld until he began service of his final sentence. This generally resulted in the prisoner having to maxout each sentence in succession and precluded advancement to lower custody levels.

The appeals court, by a per curiam order ...

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 involve the loss of privileges for petty rule violations. The sanctions are limited and do not allow for the loss of good time credits nor the imposition of segregation punishment. Washington Administrative Code (WAC) disciplinary rule 137-28-260(657) allows for the loss of good time credits and segregation punishment if a prisoner is found guilty of having received more than four minor infractions in a six month period. Significantly, minor infractions do not require any type of hearing nor do they provide for prisoner defendants to call witnesses on their behalf.

Derek Gronquist, a Washington state prisoner, challenged the loss of good time credits after a 657 disciplinary hearing where he was found guilty of committing four minor infractions during a six month period. In a Personal Restraint Petition (PRP) Gronquist raised three challenges to the hearing: 1) that one infraction did not qualify as a countable offense; 2) that ...

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 medical approval during his confinement at the Iowa Medical and Classification Center psychiatric hospital in violation of his Eighth and Fourteenth Amendment due process rights. Buckley sued the medical director for the Iowa Department of Corrections alleging that the director was responsible for the policies and operating procedures of the hospital under which hospital guards developed treatment plans for patients. Buckley's six treatment plans included treatment for 1 ) schizophrenia -like psychosis, 2) refusal to comply, 3) poor sleeping habits, 4) poor money management, 5) failure to follow smoking policies, and 6) failure to meet expectations. Buckley alleged the director's policies and practices allowed guards, rather than trained medical personnel, to develop and implement treatment plans. Buckley also alleged the treatment plans lacked sufficient specificity to guide the staff administering treatment.

The district court found the director was responsible for development of policies and operating procedures, the policies allowed ...

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 Code of Criminal Procedure (TCCP).

Larue Evans, a Texas state prisoner, filed a petition pursuant to Article 11.07, T.C.C.P., seeking credit for time spent in jail pursuant to parole revocation warrants prior to the actual revocation. He had filed a previous Article 11.07 petition challenging various aspects of a previous parole revocation hearing. The previous petition had been denied without a written order.

The trial court recommended that relief be denied on the second petition, citing the general prohibition against successive petitions contained in Article 11.07, Section 4(a), T.C.C.P. and Evans's failure to show he qualified within one of the narrows exceptions to the general prohibition. The Texas Court of Criminal Appeals held that the first petition "is not a challenge to the conviction under Article 11.07, § 4, because it does not call into question the validity of ...

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 (TDD) and TDD directory or a sign-language interpreter according to a federal court in Illinois.

Steve Hanson, profoundly deaf with only a limited ability to read lips or understand written communication, was arrested along with about ten other people for possession of cannabis. Hanson informed the arresting officers that he was deaf. They responded by placing him in a police van with other arrestees without informing him of the charges against him.

Hanson was booked into jail and .verbally informed of the charges but not how much bail was needed to secure his release. He informed guards that he was unable to use a conventional telephone and requested alternate assistance. None was given. The jail had a TDD, but the sheriff's policy strictly forbid prisoners using it.

Within four hours of the arrest, all of the prisoners transported and processed into the jail with Hanson were released on bail ...

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 attack.

Diane Nelson was arrested around 11:00 p.m. on March 6, 1994. Having suffered a heart attack the previous October, she was prescribed twice daily Procardia XL and given nitroglycerine. However, when arrested, she was unable to locate her medications which she had last taken at 6 p.m.

When booked into the jail, Nelson informed medical personnel of her heart condition and the medications needed. The nurse noted this and that the medications needed to be continued if verified; however, it was too late at night to verify them. Over the next thirty hours, Nelson repeatedly attempted to get medication from multiple nurses. Her condition deteriorated. Her skin became pasty and she began sweating profusely. She complained of difficulty breathing, chest pains and shooting pain in the arm. The nurse refused to interrupt her breakfast at a nearby diner to check Nelson. An hour later, she collapsed ...

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 sent to a state prison. In 1993 Robbins' conviction was reversed. Robbins was transferred between state prisons and Rikers Island jail several time, during which he spent ten months in state prisons.

Robbins filed suit under 42 U.S.C. § 1983 claiming that being held in prison, rather than jail, after his conviction was reversed, violated the due process clause. He sought damages, claiming he suffered stress and mental anguish from being far away from his family; missed court appearances related to his retrial; was tested for TB each time he was transferred between state and city facilities; faced an increased risk of violence and physical harm during the transfers and he was required to work in prison.

The court denied the defendants motions to dismiss and for summary judgment, holding Robbins was entitled to a trial to prove his claims and collect damages if he was successful.

The due ...

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 the Colorado DOC and Sprint Communications Company violated state public utilities law by overcharging for prisoner calls. The PUC dismissed the petition, holding it had no jurisdiction over the prisoners' complaint because the DOC was not a public utility nor a provider of non-optional operator services as a reseller of toll services. The PUC held that Sprint did not require a separate tariff to charge prisoners as it was properly operating under its long distance tariff.

The prisoners then went to state district court which also dismissed their petition, holding that the PUC lacked jurisdiction over the DOC and Sprint to review the fairness of charges for prisoner phone usage. The supreme court affirmed.

The phone system under challenge in this case was in place between 1991 and 1995. It consisted of a debit system where prisoners could place 15 minute calls to phone numbers on an approved list and ...

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 alcohol treatment program offered by the BOP and requested a one year sentence reduction under 18 U.S.C. § 3621(e)(2)(B). The BOP denied his request, claiming Johnson had been convicted of a "violent" offense. Section 3621 sentence reductions are available only to prisoners actually convicted of a non-violent offense.

The court granted the petition, ruling that possession of stolen explosives is not a violent offense under 18 U.S.C. § 924(c)(3) or the federal sentencing guidelines. BOP Program statement 5162.02 defines numerous non violent offenses as "violent" in order to deny prisoners the one year sentence reductions under § 3621.

The Ninth circuit has previously held that the BOP cannot redefine as a "violent"' offense those crimes which are deemed non violent by the circuit courts, statutes and the sentencing guidelines commission. See: Davis v. Crabtree , 109 F.3d 566 (9th Cir. 1997) and Downey ...

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. Prison officials denied the request and demanded that Searles complete a form called "Request for Accommodation of Religious Practices" and attend Jewish services for three months before they would grant his diet request. Searles filed grievances, which were resolved in his favor because he had received a Kosher diet at two other state prisons and had attended Jewish services for several years at other prisons. Searles then filed suit seeking money damages for the four month denial of a Kosher diet which he claimed violated his right to the free exercise of religion.

The defendants moved for summary judgment claiming Searles was not sincere in his religious beliefs and that they were entitled to qualified immunity from money damages. The court denied the motion and scheduled a trial.

The court noted that prisons "may not substantially burden a prisoner's right of free exercise in the absence of a compelling ...

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 hand smoke, AKA Environmental Tobacco Smoke (ETS). The court of appeals for the District of Columbia circuit reversed, holding there was insufficient evidence the plaintiffs were exposed to dangerous levels of ETS or that prison officials were deliberately indifferent to the danger posed by ETS exposure.

Three D.C. prisoners filed suit claiming they were being exposed to dangerous levels of ETS which exacerbated existing medical problems. The district court agreed and issued a permanent injunction ordering the District of Columbia to provide these three prisoners with a smoke free environment. Damages were not awarded and this was not a class action suit. One of the plaintiffs was later released, which the appeals court ruled mooted the case as to his claim. The other two plaintiffs were transferred to a private prison in Ohio, which did not moot their claims.

The appeals court held that the district court had incorrectly ...

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 brought as habeas cases.

Armen Sylvester, an Indiana state prisoner, was infracted for inciting a riot, found guilty and sentenced to three years in segregation. No good time credits were lost. Sylvester filed a habeas corpus petition under 28 U.S.C. § 2254 claiming that the hearing officer's verdict was not supported by "some evidence" and he was denied due process when he was not allowed to present witnesses on his own behalf. The district court denied relief and the appeals court affirmed.

At the outset, the appeals court expressed doubt that habeas corpus was the proper means for Sylvester to challenge the disciplinary hearing outcome because he did not seek earlier release from custody. "Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of 'custody.' Although dramatically more restrictive confinement may be contested in a collateral attack under § 2254, see Graham v ...

$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. The lawsuit was dismissed by the court in a lengthy ruling. See: McGlothlin v. Murray , 993 F. Supp. 389 (WD VA 1997). The defendant prison officials then moved for attorney fees and sanctions.

In granting the defendants' motion for fees the court expressed its annoyance with McGlothlin having "bombarded" the court with motions and noted that cases such as this submerged truly meritorious claims by prisoners.

Essentially, the court assessed fees against McGlothlin because he made a lot of claims that he knew he couldn't substantiate with any evidence when the case went to trial. "In other words, plaintiff knew, but was unwilling to accept, the objective facts which belied any claim personal to him. He should be required to face the consequences of that unwillingness because it resulted in tremendous costs and expenses to the other side." The court faulted McGlothlin for pursuing claims he knew to be ...


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