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Prison Legal News: December, 1998

Issue PDF
Volume 9, Number 12

In this issue:

  1. Critical Resistance: A Step Forward (p 1)
  2. Notes From Other Conference Participants (p 3)
  3. Rehabilitation or Corporate Profit (p 4)
  4. Them Today, Us Tomorrow (p 4)
  5. Ex-Prisoner Sues Over Phony Jail Dentist (p 5)
  6. From the Editor (p 5)
  7. Physical Injury Requirement Inapplicable to First Amendment Claims (p 6)
  8. PLRA Termination Provision Unconstitutional in Ninth Circuit (p 6)
  9. PLRA Attorney Fee Provision Not Retroactive to Pre-PLRA Services (p 7)
  10. New Mexico CCA Disturbance Not Reported for Hours (p 8)
  11. Medical Cost-Cutting by Private Care Provider Opens Liability (p 8)
  12. SWAT Team Ends Juvenile Center Standoff (p 8)
  13. Utah Prison Guard Faces Sodomy Charges (p 9)
  14. Updated AIDS Bibliography Published (p 9)
  15. Bay Area Students Protest Prison Spending (p 9)
  16. Corrupt Cleveland Cops/Guards Sentenced (p 10)
  17. Qualified Immunity No Protection for ADA Injunctive Claims (p 10)
  18. No Right For Media to Witness Execution (p 11)
  19. Legal Services Corporation Restrictions Affirmed (p 11)
  20. Pro Se Tips and Tactics - Motions to Dismiss (p 12)
  21. No Liberty Interest in Ohio Visiting Rules (p 14)
  22. Prison Writing in 20th-Century America (Book Review) (p 14)
  23. Guard Awarded $300,000 for ETS Exposure in ADA Suit (p 15)
  24. Texas Prisons Not Immune In Tort Claims Act Suits (p 15)
  25. Prisoners' Legal Services of NY Victim of Budget Ax (p 16)
  26. Texas Prisons Subject to Civil Liability (p 17)
  27. Discipline for Possessing Legal Papers Vacated (p 17)
  28. No Interlocutory Appeal of Disputed Facts (p 18)
  29. Blanket Jail Strip Search Policy Unconstitutional (p 18)
  30. Untimely Jury Demand Must be Fairly Considered (p 20)
  31. Segregated Prisoners Retain Religious Congregation Rights (p 20)
  32. Seventh Circuit Split on Self-Defense in Prison (p 21)
  33. Denial of Social Security Benefits to Prisoners Upheld (p 21)
  34. Rule 12(b) Dismissal Requires Inability to Prove Claim (p 22)
  35. Deportation Moots Federal Habeas Appeal (p 22)
  36. Preliminary Injunction Granted in Kosher Diet Claim (p 23)
  37. Court Responsible for Prisoner Access to Teleconference (p 23)
  38. News in Brief (p 24)
  39. RFRA Still Applies to Federal Government (p 25)
  40. Movant Bears Summary Judgment Burden (p 25)
  41. Consent Decree Termination Requires Fact Finding (p 26)
  42. Bureau of Prisons Transsexual Policy Challenged (p 26)

Critical Resistance: A Step Forward

Critical Resistance: A Step Forward in the Struggle Against Prisons

by Micah Holmquist

In the mid 1960s the Berkeley campus of the University of California was home to Free Speech Movement which set the stage for many of the social movements that would follow. Today it may be the epicenter ...

Notes From Other Conference Participants

Notes from Other Conference Participants

The conference was many things to many people. Perhaps, its biggest fault was that it tried to be all things to all people. The opening plenary, attended by more than 800 participants, had some inspiring moments. Unfortunately, it trailed off sod bogged down after far ...

Rehabilitation or Corporate Profit

Peaceful efforts, by Alaskan prisoners, on August 30, 1998, to address grievances and concerns repeatedly ignored at the Central Arizona Detention Center, in Florence, Arizona, were mercilessly squashed following a sit down demonstration in the prison exercise yard.

What was initially a peaceful, sit-down demonstration turned ugly when prison officials ...

Them Today, Us Tomorrow

The state of Idaho has overhauled its sex offender registration program. Offenders must now register upon release or when they move, and annually thereafter. There is a $10 administrative fee (read: tax) charged for the privilege. More significantly, for a nominal fee of $5, any person may obtain a list ...

Ex-Prisoner Sues Over Phony Jail Dentist

When Timothy Stanley, 32, was in the Marion County (FL) Jail in January, 1997, facing drug charges, he needed some dental work done. According to the jail's medical log, Sheriff Ken Ergle's "dentist", Illya Fitzgerald Hathorn, pulled one of Stanley's teeth. Now Stanley is suing the jail ...

From the Editor

By now PLN subscribers should have received a fund raiser letter from PLN . We are requesting donations from our readers in order to upgrade PLN 's aging computer equipment. Two PLN supporters have recently donated up to date software, including a state of the art mailing list program customized to ...

Physical Injury Requirement Inapplicable to First Amendment Claims

The court of appeals for the Ninth circuit held that the "three strikes" provision of the Prison Litigation Reform Act (PLRA) does not apply to cases pending at the time of the law's enactment and that the PLRA's physical injury requirement does not apply to First Amendment claims ...

PLRA Termination Provision Unconstitutional in Ninth Circuit

The court of appeals for the Ninth circuit held that the section of the Prison Litigation Reform Act (PLRA), which requires immediate termination of previously granted prospective relief in litigation challenging prison conditions, violates separation of powers principles. This decision is unique because it is contrary to that of every ...

PLRA Attorney Fee Provision Not Retroactive to Pre-PLRA Services

The Court of Appeals for the Sixth Circuit ruled in favor of attorneys for Michigan women prisoners, holding; (1) that attorney fee provision of the Prison Litigation Reform Act (PLRA) does not apply retroactively, (2) that prisoners were prevailing party entitled to attorney fees, and (3) that payment of both ...

New Mexico CCA Disturbance Not Reported for Hours

The warden of a private prison in New Mexico said that prison staff may have delayed notifying state police about a disturbance that sent five guards to a hospital August 7, 1998.

"It may be my fault we didn't respond quickly enough," said Donald A. Dorsey, warden of the ...

Medical Cost-Cutting by Private Care Provider Opens Liability

Afederal district court in New York held that a jail prisoner had stated a claim for violation of his Eighth Amendment rights when he was denied medical care as a part of the county's effort to cut medical costs by contracting the jail's medical care to a private ...

SWAT Team Ends Juvenile Center Standoff

SWAT teams were called in to saw through a 3- to 4-inch thick steel door to reach four teens who had barricaded themselves in an office after allegedly leading an uprising at a juvenile detention center. The power saw cut through the door about an hour after authorities gave up ...

Utah Prison Guard Faces Sodomy Charges

In a bizarre case involving the use of DNA fingerprinting, a 34-year-old Utah prison guard was charged with sexually assaulting two prisoners at the Utah State Prison in Draper.

After months of allegedly being forced to perform oral sex on the guard, a 21-year-old male prisoner was able to spit ...

Updated AIDS Bibliography Published

The ACLU National Prison Project has announced the publication of its 1998 AIDS in Prison Bibliography. According to the Bureau of Justice Statistics report HIV in Prisons and Jails, 1995 , the overall rate of AIDS cases among prisoners was more than six times the rate in the general population. From ...

Bay Area Students Protest Prison Spending

About 2,500 high school students from throughout the San Francisco Bay Area left class on Thursday, October 1, 1998 to attend a rally. They converged on a Bayfair train station in San Leandro. From there, protesters marched to an Alameda County Sheriff's Department substation chanting, "Education, not incarceration ...

Corrupt Cleveland Cops/Guards Sentenced

In the July 1998 issue of PLN , we reported the arrest of 51 Cleveland area police and jail guards who were lured into an FBI sting with promises of high-paying "moonlighting" jobs as security guards for illegal drug shipments. On August 19, 1998, 49 of the defendants, all of whom ...

Qualified Immunity No Protection for ADA Injunctive Claims

In the October, 1998, issue of PLN we reported Rouse v. Plantier , 987 F. Supp. 302 (D NJ 1997) which involves a class action lawsuit challenging the adequacy of treatment that diabetic prisoners receive in New Jersey state prisons. In that case the court denied the defendants' motion for summary ...

No Right For Media to Witness Execution

In the November, 1997, issue of PLN we reported California First Amendment Coalition v. Calderon , 956 F. Supp. 883 (ND CA 1997), where a district court in California issued an injunction requiring that California execution witnesses be given an opportunity to witness the execution procedure from the time the victim ...

Legal Services Corporation Restrictions Affirmed

By Paul Wright

In the October, 1997, issue of PLN we reported Legal Aid Society of Hawaii v. Legal Services Corporation, 981 F. Supp. 1288 (D HI 1997), which held that some congressional restrictions on groups that accept Legal Services Corporation (LSC) funding were unconstitutional. The court of appeals for ...

Pro Se Tips and Tactics - Motions to Dismiss

1. Rule 12(b)(6) Motions To Dismiss For Failure To State A Claim

In some prison cases filed pro se by prisoners, the defendants will file a "motion to dismiss for failure to state a claim." In cases filed in federal court under 42 U.S.C. §1983, a ...

No Liberty Interest in Ohio Visiting Rules

Afederal district court in Ohio held that Ohio state visiting rules do not create a liberty interest in visitation. Melissa Blair is a former Ohio prison guard married to Ohio prisoner Lemont Blair. The Blairs' visiting privileges were suspended after prison officials discovered that Melissa had lied about her prison ...

Prison Writing in 20th-Century America (Book Review)

H. Bruce Franklin,Editor, Penguin, 1998

by Daniel Burton-Rose

Closing a conversation about how hideous and abysmal prisons are these days, the great ex-con sociologist John Irwin remarked to me with a muted note of pleasure which I found somewhat unethical at the time: "Yeah, but one thing, there's ...

Guard Awarded $300,000 for ETS Exposure in ADA Suit

Afederal district court in New York held that an asthmatic prison guard was "disabled" under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., but compensation under 42 U.S.C. § 1981a(b)(3) could not exceed $300,000. The court further held that the guard ...

Texas Prisons Not Immune In Tort Claims Act Suits

A Texas appellate court held that the prison system and its employees are not entitled to common-law immunity, official immunity, or sovereign immunity for a claim under under the Texas Tort Claims Act (TTCA), Texas Civil Practice & Remedies Code §101.021(a), when a prisoner fell down a staircase after ...

Prisoners' Legal Services of NY Victim of Budget Ax

September 13, 1971 Bloody Monday. New York Governor Nelson Rockefeller unleashes a firestorm of bullets and shotgun blasts into Attica's D-Yard. Eight minutes and 3,000 rounds of ammo later, 29 prisoners and 10 hostages lay fatally gunshot in spreading pools of blood. Another 89 are wounded.

May 18 ...

Texas Prisons Subject to Civil Liability

ATexas appellate court has held that the prison system was subject to liability when a prisoner slipped and fell in a prison butcher shop.

Doyle Dean Cobb, a Texas prisoner, filed a state lawsuit under the Texas Tort Claims Act, Texas Civil Practice & Remedies Code §101.021(a), after he ...

Discipline for Possessing Legal Papers Vacated

AColorado state appeals court held that no evidence supported an infraction against a prisoner found guilty of bartering and possessing another prisoner's legal papers. John Tebbetts, a Colorado state prisoner, was infracted and found guilty of "bartering'' after prison officials found letters from four prisoners seeking legal assistance from ...

No Interlocutory Appeal of Disputed Facts

The Court of Appeals for the Ninth Circuit held that prison officials may not appeal a district court's denial of their motion for summary judgment based on qualified immunity when the denial is due to disputed issues of material fact.

Larry Thomas, a California state prisoner filed suit under ...

Blanket Jail Strip Search Policy Unconstitutional

Afederal court in Utah has held that a blanket strip search policy by a jail may be unconstitutional. Kristin Foote, a motorist, was stopped, arrested, and taken to a county jail by two Utah Highway Patrol officers, one of whom was a drug recognition expert. Foote was pat searched by ...

Untimely Jury Demand Must be Fairly Considered

Untimely Jury Demand Must Be Fairly Considered

According to the Seventh Circuit, a district court must fairly consider a pro se prisoner's untimely request for jury trial. The court also held that the prisoner's failure to answer defendants' motion for summary judgment may have been caused by confusion ...

Segregated Prisoners Retain Religious Congregation Rights

Prisoners in disciplinary segregation (keeplock) in the Second Circuit have a clearly established right to attend religious services according to a New York federal district court. The court also required the attorney general's office to explain why it should not be sanctioned for repeated misconduct.

In July, 1985, Sullivan ...

Seventh Circuit Split on Self-Defense in Prison

The court of appeals for the Seventh circuit held that a federal prisoner criminally charged with assault could not assert a defense of self defense when he had the time and opportunity to seek protection from guards.

Charles Haynes was a prisoner at the federal prison in Oxford, Wisconsin. While ...

Denial of Social Security Benefits to Prisoners Upheld

The court of appeals for the Ninth circuit held that a statute denying Social Security benefits to prisoners is constitutional. Robert Butler is a 77 year old Nevada state prisoner. Butler was granted social security retirement benefits in 1983. He was later incarcerated and the Social Security Administration (SSA) determined ...

Rule 12(b) Dismissal Requires Inability to Prove Claim

The Second Circuit has held that a civil rights claim may only be dismissed under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim if it is beyond doubt that the plaintiff can prove no set of facts which entitle him to relief. A Rule ...

Deportation Moots Federal Habeas Appeal

The Court of Appeals for the Seventh Circuit has ruled that deportation, during the appeal from the denial of a petition for a writ of habeas corpus by a state prisoner, moots the appeal.

Fabio Diaz, a citizen of the Dominican Republic, was an Indiana state prisoner. During his incarceration ...

Preliminary Injunction Granted in Kosher Diet Claim

Prisons must provide a diet which conforms to prisoners' sincerely held religious beliefs according to a federal court in Colorado. Charles Beerheide, Sheldon Perlman, and Allen Fistell, Colorado state prisoners who are Orthodox Jews, filed suit under 42 U.S.C. § 1983, alleging that the prison violated their First Amendment ...

Court Responsible for Prisoner Access to Teleconference

The Court of Appeals for the State of Wisconsin held that the court is responsible for a pro se prisoner's access to a telephone to attend a court-ordered teleconference hearing.

Debra Christie, a Wisconsin prisoner, filed a pro se state petition for a writ of habeas corpus alleging the ...

News in Brief

AZ : On July 30, 1998, Tempe Jailer Chris Perry was suspended for 16 hours after an internal investigation found he had punched prisoner Jon M. Harding on the head three times after Harding bit him. Perry was cleared of excessive force charges arising from two other incidents. Perry was also ...

RFRA Still Applies to Federal Government

The court of appeals for the eighth circuit held that the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, still applies to the federal government. In the September, 1997, issue of PLN we reported City of Boerne v. Flores , 117 S.Ct. 2157 (1997), in which the United States ...

Movant Bears Summary Judgment Burden

The court of appeals for the Second Circuit held that the party moving for summary judgment bears the burden of showing it is entitled to judgment and a district court erred in dismissing a prisoner's court access claims. The court also held that the plaintiff had no liberty interest ...

Consent Decree Termination Requires Fact Finding

Consent Decree Termination Requires Fact Finding 

The court of appeals for the Eighth circuit held that a district court failed to articulate its reasons for terminating its jurisdiction over a consent decree and remanded the case for an evidentiary hearing and an articulation of reasons for its decision.

In 1982 ...

Bureau of Prisons Transsexual Policy Challenged

Bureau Of Prisons Transsexual Policy Challenged

Afederal district court in the District of Columbia held that trans-sexualism is a "serious medical condition" for which prisoners have a constitutional right to treatment. Dee Farmer is a federal prisoner who sued the Bureau of Prisons (BOP) challenging as unconstitutional the BOP policy ...