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Prisoner Education Guide

Prison Legal News: December, 1998

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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 of a new movement against the prison system in the United States.

On September 25-27, 1998, over 3,000 people gathered in Berkeley, California to attend a conference focusing on issues surrounding U.S. prisons. Titled "Critical Resistance: Beyond the Prison Industrial Complex," the conference brought together a wide range of prison activists in an attempt to build a sustained anti-prison movement.

The last twenty years have seen a dramatic expansion in the size of what is euphemistically called the "corrections" system. Presently over 1.8 million people are incarcerated a threefold increase since 1980 in U.S. prisons and jails. On a per capita basis more people are incarcerated in this country than any other and the prison population is expected to double again by the year 2005. The increase has hit people of color and women the hardest and can be primarily attributed to harsher sentencing of non-violent ...

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 too many speakers. The session actually extended into the time frame for the first scheduled panel discussions, and this affected us directly because we were presenters in the first panels.

Our panel was attended by a diverse group of very interested people, each of whom sought information that would help them in their own specific endeavors to make a difference. As panel participants, we enjoyed immensely the opportunity to share what we know via hard-fought experience with others who hold the same beliefs in the dignity and value of all people. Our panel was entitled, "Legal and Cultural Strategies for Challenging the Prison Industrial Complex."

The conference will never go down as "smooth" and "well oiled", but the organizers' hearts were in the right place and everyone was in agreement that a large problem exists, and that a solution must be found.

If the conference stumbled, it stumbled in the ...

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 at this private prison (a for profit business owned by Corrections Corporation of America) assaulted prisoners with rubber bullets, smoke tear gas, and percussion grenades. Further assault was inflicted by club wielding CCA personnel in protective riot gear, armed with hi-tech shock/stun shields. CCA officials over-reacted using unauthorized force to inflict punitive retribution rather than listen to prisoner concerns.

Initially, 50 prisoners refused to leave the exercise yard until the warden heard their complaints. However, Assistant Warden Luna met with prisoners and issued an ultimatum to disperse. When two dozen prisoners opted to remain, they were sealed off and assaulted with potentially lethal force. No violence was initiated by prisoners in their efforts to draw attention to conditions at this private facility.

Alaska has been warehousing prisoners with CCA in Arizona since February 1995 to ease overcrowding in Alaska's prison. Prisoner issues were related to food quality, health ...

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 of registered sexual offenders by geographic area, such as by county or by zip code.

Interestingly, while failure to register is a felony with a maximum five year prison sentence, using the publicly available registry information for vigilantism (or other misuse) is only a misdemeanor not much of a deterrent for some.

Every prisoner, not just sex offenders, should be concerned about the precedents being set with sex offender laws. Because it won't take much for the various legislatures to extend these laws to the rest of us and make every convicted felon register for the rest of his or her life and have his/her name published on a list that any busybody can acquire and distribute.

-- S.S., ID Prisoner

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 because Hathorn was not a licensed dentist.

Carrie Proctor, the sheriff's senior staff attorney, said Hathorn had attended dental school but didn't graduate. She said the quality of his work was never questioned. "This guy was a good dentist," she said.

Gainesville lawyer Horace Moore Sr. is representing Stanley, who is asking for $15,000 in damages. Moore said 37 other former jail detainees are prepared to join the suit if a judge certified it as a class action.

"A criminal background check would have shown that [Hathorn] had been convicted of doing this before," said Moore.

Hathorn, 30, began working at the jail on September 27, 1996, as an employee of Correctional Medical Services (CMS), which had a contract to provide medical services to the jail.

Sheriff Ergle cancelled the CMS contract on January 1, 1997, and began hiring his own medical staff, including Hathorn.

Medical logs ...

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 PLN 's special needs. However, PLN 's computers aren't capable of running today's software. PLN 's income barely covers our day to day operating expenses. To pay for large expenditures that aren't a part of our normal monthly budget we have to turn to our readers for additional donations. If you haven't sent in your donation yet, please do so.

No donation is too small to make a difference. Every little bit helps. If you didn't receive a copy of our fundraising letter, or you're not a subscriber, and would like one, please send an SASE requesting a copy. In the fundraising letter we go into greater detail on PLN 's need for up to date computer equipment.

Beginning with this issue of PLN we are selling another book as part of our fundraising efforts. Prison Writing in 20th Century America is an anthology ...

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. The court also held that a jail guard's proselytizing to prisoners did not violate the establishment clause of the constitution when jail officials disciplined the guard and halted the practice as soon as they learned of it. This is the first circuit court ruling to consider, and reject, the application of the physical injury requirement to non Eighth Amendment claims.

Alvin Cannell was a Muslim pretrial detainee in the Multnomah county detention center in Oregon for a two month period in 1993. Roderick Lightner worked as a guard in Canell's unit three nights a week. Canell claimed Lightner actively tried to convert prisoners to Christianity; engaged prisoners in religious debate and discussion; and preached and sang Christian songs. Canell complained and Lightner was transferred to other duties. All told, Canell had to endure Lightner's proselytizing for 18 days over a six week period. Canell filed suit claiming ...

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 other circuit that has decided the issue, and will likely result in review by the Supreme Court.

In 1972, Arizona state prisoners commenced litigation in federal court asserting a myriad of unconstitutional conditions of their confinement. The parties quickly entered into a consent decree before an evidentiary record was established. Under then existing law, no findings of fact or conclusions of law were made.

The case lay dormant for more than two decades until 1994, when the state filed a motion to modify the consent decree. Thereafter, the PLRA became law, which included a provision, codified as 18 U.S.C. section 3626(b)(2), that mandated immediate termination of previously granted prospective relief, if the relief was granted in the absence of specific findings. The state then moved for termination under the PLRA, but the district court declared the termination provision unconstitutional. Both the state and the federal government ...

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 attorneys for mutual consultation was not "double-billing."

This case has been in the courts for over 20 years. Women in Michigan state prisons filed a lawsuit seeking prison conditions equal to those afforded men in Michigan state prisons, a Fourteenth Amendment claim, and adequate access to the courts, a First Amendment claim. They prevailed on the merits in 1979. Since then, the district court has struggled to extend federal-court oversight of the State as prison authorities moved glacially in compliance. In the March, 1995 issue of PLN we reported the women prisoners prevailing on claims seeking access to the courts and legal assistance. Glover v Johnson, 862 F.Supp. 180 (E.D.MI.1994). Again in the December 1995, issue of PLN we reported how prison authorities attempted to modify a consent degree to the detriment of the prisoners but failed. Glover v Johnson, 879 F.Supp. 752 (E.D ...

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 Torrance County Detention Center, operated by the Corrections Corporation of America (CCA).

Darren White, head of the state police, was critical of the delay in calling state police. "We're a little disappointed that our (public information officer) was first informed of any situation at the prison by a local media person," White said. "Until then, we were unaware of the situation."

Details of the "situation" are sketchy. Prison officials said only that some unarmed prisoners from Washington D.C. jumped the guards while being returned from a recreation area. Officials said the attack was unprovoked.

Apparently CCA officials did contact the New Mexico Corrections Department, which dispatched a 15-man tactical team to the CCA prison. But White said that his department should have been notified so that state police could have been dispatched to secure the prison's perimeter.

"The down time it takes to bring in additional resources ...

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 business. Raymond Llanes was imprisoned in the Westchester County jail in New York. He repeatedly sought medical care after experiencing intense abdominal pain but none was provided. Eventually Llanes was admitted to the jail infirmary and after a cursory examination a doctor told him he had "caught a draft."

Llanes was later readmitted to the infirmary and examined by a different physician who had him taken immediately to a local hospital where he had surgery for a peptic ulcer. Llanes was hospitalized for a month. The treating physician ordered that Llanes be provided with a "soft" diet which the jail refused to provide. Llanes refused to eat many of the meals he was served, until his release from jail, because they were not consistent with what the doctor had prescribed. As a result, he became weak, dizzy, fell and fractured 12 ribs and his head. Llanes filed suit claiming that ...

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 their negotiations and began using tear gas and small explosive charges to dislodge the four barricaded teens.

The incident began at 7:15 a.m., July 15, 1998, at the Donald E. Long Juvenile Detention Center in Portland, Oregon, when more than a dozen youths in a closed custody unit allegedly attacked guards with chains and wooden legs from smashed furniture. Four staff members were treated for minor injuries.

A caller who described himself as one of the four teens barricaded in the office told a Portland television station the disturbance began after a fellow prisoner was beaten by guards for dropping a tray of food.

"The staff tried to assault a student, so we beat the staff up," the boy told the station. The way I see it, I stuck up for my fellow inmates."

Police spokesperson Cheryl Kanzler did not confirm whether a prisoner dropped a tray of ...

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 the guard's semen into a rubber glove. He preserved the sample on ice in his cell for five days, until he was able to smuggle it to a visit and hand it over to his girlfriend.

The woman contacted police and DNA testing later purportedly matched the semen to a blood sample provided by 34-year-old Jerry Gene Kessler, a sergeant who supervised prisoners in the kitchen.

Kessler was charged June 5, 1998, with six counts of first-degree felony forcible sodomy and one count of second-degree felony forcible sexual abuse. He faces up to life in prison, if convicted.

Kessler began abusing the 21-year-old prisoner in January, 1998, according to charging documents. The guard took the prisoner to a locked area in the basement of the prison and said if he refused to cooperate, Kessler would have the victim sent to the hole or have other prisoners beat him, say ...

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 1991 to 1995 the number of male state prisoners infected with HIV increased 28 percent, while the number of female prisoners infected increased 88 percent.

The 1998 AIDS in Prison Bibliography provides a variety of information on this expanded population of prisoners. The Bibliography includes:

an extensive list of corrections policies on HIV/AIDS, including those of the Federal system and 43 state systems;

a section on HIV/AIDS education materials for prisoners and correctional staff;

citations to more than 200 articles in criminal justice, medical and legal journals;

a directory of community-based organizations that provide services and advocacy for prisoners living with AIDS/HIV.

The 68-page Bibliography is available for $10 prepaid. Please direct orders to: Jackie Walker; AIDS Information Coordinator; ACLU National Prison Project; 1875 Connecticut Avenue NW, Suite 410; Washington, DC 20009.

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."

Prison rights activist Angela Davis followed the marchers in her car. She said she would have walked with them if she had not injured her leg earlier.

"It was absolutely amazing to see so many young people it was really inspiring," said Davis. "If they don't leave their classrooms for dramatic demonstrations like this, they may not have classrooms."

Ms. Davis helped organize the Critical Resistance conference at UCal Berkeley the weekend before the student march. [See cover story, this issue.] According to a report released there by the Justice Policy Institute, California's higher-education budget shrank by 3 percent over the last decade while spending on prisons jumped 60 percent.

"They're just trying to keep us in jail," said student protester, Ivan Garcia. "They aren't trying to say, you know, 'Go to college.'"

An article in the next day's San Francisco Chronicle reported, "Some school ...

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 had pleaded guilty, were paraded one-by-one before U.S. District Judge Donald C. Nugent for sentencing.

Some sobbed. Some brought weeping mothers and fathers. Some were angry, and most were contrite. Judge Nugent asked each one to explain why they had been willing to throw away their law enforcement careers. Then he sentenced them.

Twenty-five former Cuyahoga County Jail guards were sentenced to a total of 81 years and 7 months, or an average sentence of 3 years and three months. Most were given 2 1/2 years. The longest sentence was 9 years, 4 months.

Five former East Cleveland police officers were sentenced to an average of 4 years each. Seven Cleveland cops were sentenced to an average of 3 years, 5 months. Three Cleveland Heights cops were sentenced to an average of 4 years, 2 months. Two Brooklyn (Ohio) cops were each given 3 years, 5 months, as ...

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 judgment on the prisoners' Eighth Amendment claims and set the case for trial. The court had dismissed the plaintiffs' claims under the American with Disabilities Act (ADA), 42 U.S.C. § 1201, because the defendants were entitled to qualified immunity. The court held it was not clear when the case arose that the ADA applied to state prisoners.

After the court issued its ruling the defendants and the plaintiffs filed motions for reconsideration which the court granted to the plaintiffs and denied to the defendants. The court treated the cross motions for reconsiderations as motions for reargument under local rule 7.1(g). The court held the defendants' motion for reargument was not in compliance with the Rule which provides that a party may, within ten days of the entry of an order adverse to that party, move for reargument upon a showing that dispositive factual matters or controlling decisions ...

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 is placed in the gurney until after pronouncement of death. The court of appeals for the ninth circuit reversed and remanded.

California prison officials adopted an execution procedure that allows media witnesses to view the procedure only after the victim has been strapped to a gurney and IV lines inserted. Prison officials claimed this was necessary to prevent the identification of the staff members carrying out the execution. The district court held this procedure violated the First Amendment rights of media witnesses.

The court of appeals, as an initial matter, held that a district court's ruling on the constitutionality of a state statute is reviewed de novo on appeal. The court also held that the plaintiff, an association of 250 print and broadcast journalists, had standing to sue.

The court noted that the supreme court has repeatedly held that the press has "no constitutional right of access to prisons ...

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 the Ninth circuit affirmed in part, reversed in part and remanded the case to the lower court with instructions to dismiss the case.

The LSC was created in 1974 as a private non profit corporation to distribute government funds to independent legal programs that provide legal services to the poor. In 1996 congress imposed severe budget cuts on the LSC and enacted extensive limitations on what groups could do if they accepted LSC money. [ PLN , July, 1996] See: 1996 Budget Act, § 504(a). Among the limitations imposed are those which forbid any legal group receiving LSC funds from representing state, federal or county and city prisoners; participating in any class action suits; representing immigrant aliens; challenging abortion laws or anything else on the wish list of items dear to the hearts of reactionary legislators. The district court had enjoined the restrictions on prisoner litigation by holding that while groups receiving ...

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 motion to dismiss for failure to state a claim is filed under Federal Rule of Civil Procedure 12(b)(6), which I will call by the shorthand "Rule 12(b)(6)." This column provides a brief overview of Rule 12(b)(6) motions to dismiss and some ideas on how to defend against them.

Rule 12(b)(6) is a sub-part of part of Rule 12(b). Rule 12(b) states in general that all defenses should be put in the defendants' answer, but it also gives the defendants the option to raise some defenses by motion before an answer is filed. Thus defendants can, instead of answering right away, raise one or more Rule 12(b) defenses by motion, and only if the defendants lose that motion will they be required to file an answer to the complaint.

One of the defenses Rule 12(b) allows to be raised ...

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 employment when she submitted her application to visit Lemont. Ohio Department of Rehabilitation and Correction (DORC) rules state that a person's current or former status as a DORC employee, vendor or volunteer or contract employee can be considered in denying visitation privileges. Melissa was told she could not visit Lemont.

The Blairs filed suit and sought a Preliminary Injunction (PI) allowing them to visit pending the outcome of the suit. The court denied the motion. The court held that Ohio Administrative Code (OAC) § 5120-9-15 does not create a liberty interest in visitation. In relevant part, the OAC states: "(B) In general, visits by the inmate's spouse... shall be permitted."

In Kentucky Department of Corrections v. Thompson , 490 U.S. 454, 109 S.Ct. 1904 (1989) the United States supreme court held that prisoners have no constitutional right to visitation. However, such a right can be created by state ...

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 going to be some amazing writing coming out of there soon."

Reading Prison Writing in 20-Century America, edited by long-time radical H. Bruce Franklin, I understood Irwin's statement better. Not only can prison writing be amazingly good stuff with all life's essentials stripped down and bare but at its best the writing conveys the fundamental inhumanities of the institution like nothing else can. These intimate records often portraits of the myriad creatures the prison damages set on paper by those it refined are definitely prison writing at its best.

Prison Writing is an oral history of the entire century the anthology spans. It's like listening to the plodding worksongs on prison plantations in the early part of the century, echoing all too directly still, or Iceberg Slim rapping his tales of '50s black ghetto life. Some poems capture brief moments of victory Norma Stafford writes to a ...

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 being ordered to carry a handleless 50-gallon trash barrel up a flight of stairs.

Kirk Wayne McBride, a Texas state prisoner, filed a state lawsuit under the TTCA, after he was injured by a fall down a flight of stairs. McBride had been ordered by a guard to carry a 50-gallon handleless trash barrel up the stairs. McBride complained that the unsafe condition of the barrel, caused him to fall backward and injure his back and testicles. He also claimed that guards were negligent in implementing the prison's policy of maintaining a safe workplace.

The defendants filed a motion for summary judgment which was granted by the trial court. Because the trial court did not state its reasons for granting the summary judgment, the court of appeals addressed each possible reason.

The court of appeals held that the defendants were not entitled to summary judgment based on inapplicability of ...

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, 1998 Bloody Monday II. Using the veto power of his office, New York Governor George Pataki slashes more than $300 million in human services and education spending from New York's $71.4 billion budget. Among the items hacked by Pataki's budget ax is the entire $4.8 million budget for Prisoners' Legal Services.

PLS was set up by the New York State Bar Association in 1976, as a reform mechanism following the Attica uprising. For the past 22 years, the state has funded PLS to assist prisoners, to act as a watchdog and deterrent to official misconduct and prisoner abuse, and to provide a "safety valve" to help prevent explosive and deadly incidents like Attica.

Due to the governor's veto, PLS immediately laid off about two thirds of its staff, with the remaining staff working part-time. No new cases were initiated. PLS scrambled to find substitute counsel ...

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 slipped in a prison butcher shop, cutting his hand on the saw he was using. Cobb alleged that the prison and supervising guards acted in a grossly negligent manner by allowing the dangerous conditions in the prison butcher shop to persist after they had knowledge of the conditions. The trial court granted defendants' motion for summary judgment.

On appeal, the court ruled that prisons could be sued for personal injury caused by a condition of real property (premises defect) if the claim met the requirements of the Texas Tort Claims Act. For an ordinary defect, the prison owes the prisoner the duty not to injure him through willful, wanton, or grossly negligent conduct. If the prison has knowledge of a dangerous condition and the prisoner does not, the prison has the duty to warn the prisoner or make the condition reasonably safe.

A premises defect is an imperfection or shortcoming ...

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 Tebbetts and offering to pay him for the services.

At the disciplinary hearing Tebbetts presented evidence that he did not request or accept any payment for his legal services. Tebbetts was also found guilty of the unauthorized possession of another prisoner's legal papers.

Tebbetts sought review of the infraction in state district court, which affirmed the DOC ruling. The court of appeals, in an unpublished opinion, vacated and remanded, finding the administrative record had not been received by the district court and was therefore insufficient for judicial review. On remand the district court again affirmed the DOC finding. The court of appeals again reversed and remanded this time with instructions to vacate the disciplinary action.

The court rejected the state's argument that Sandin v. Connor 515 U.S. 472, 115 S.Ct. 2293 (1995) had overruled Kodama v. Johnson , 786 P.2d 417 (Colo. 1990) which stated that ...

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 § 1983 after a floor guard ordered a picket guard to point a loaded rifle at him following a verbal altercation with the floor guard. Thomas was incarcerated at Pelican Bay State Prison. Thomas alleged the following facts: He was brought to a shower stall, found bugs there, and complained. The floor guard inspected the shower, pronounced it usable, and ordered Thomas to use it or return to his cell. Thomas asked to wait for another shower stall. The floor guard became hostile. Thomas asked to speak to a supervisor. The floor guard ordered a gun picket guard to "lay the dayroom down" an order which resulted in the guard chambering a round and pointing his rifle at Thomas.

The guards deny pointing the gun directly at Thomas. They moved for summary judgment based on qualified immunity. Thomas filed his opposition to the guards' motion for summary judgment late.

The district ...

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 a female jail guard. The guard and one of the officers suspected Foote to be under the influence of marijuana and alcohol so, prior to booking, the officer conducted tests for drug and alcohol influence. The officer requested a strip search and the guard complied. Foote was not placed in the jail's general population before being released.

In the 10th Circuit, prisoners retain a limited right to bodily privacy pursuant to Hayes v. Marriot, 70 F.3d 1144 (l0th Cir. 1995). Although Bell v. Wolfish, 441 U.S. 520 (1979) set forth four factors to consider when determining the reasonableness of a strip search, the only one at issue was the justification for initiating the search.

It is unreasonable "to assume that a person who is arrested for driving while under the influence of drugs has drugs concealed on his or her body simply because none were found in ...

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 on whether he needed to answer in light of the district judge's previous denial of the motion. Therefore, the prisoner should be given an opportunity to answer the motion.

Hollis Members, an Indiana state prisoner, filed a § 1983 action in federal court alleging that prison guards used excessive force in administering an injection. The defendants moved for summary judgment. Three days before Members's answer was due, the district judge granted the motion in favor of one defendant and dismissed all damage-seeking claims in the defendants' official capacity. The district judge also ruled that the defendants had not sufficiently supported their motion for summary judgment with respect to the other issues. The district judge then referred the matter to a magistrate for trial (which the appellate court interpreted as a reference for an evidentiary hearing because neither party consented to trial by magistrate).

The magistrate held a scheduling conference ...

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 Correctional Facility was still under construction and unable to accept general population prisoners due to a lack of programs. To alleviate systemwide overcrowding, the New York Department of Correctional Services (DOCS) transferred keeplock prisoners to Sullivan. Richard Salahuddin, a New York state prisoner, was one of the keeplock prisoners transferred from Auburn Correctional Facility to Sullivan. At Auburn, Salahuddin had been allowed to regularly attend Muslim services despite his keeplock status.

Upon arrival at Sullivan, Salahuddin immediately requested access to congregate Muslim services. Salahuddin was never allowed to attend the Muslim services despite repeated requests and his eventual release from keeplock. Salahuddin filed a § 1983 suit alleging denial of his First Amendment right to freedom of religion by a number of lower and higher-level prison officials. The defendants moved for and were granted summary judgment based on qualified immunity. Salahuddin appealed.

The Second Circuit held that keeplock prisoners in the ...

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 another prisoner, Nelson Flores-Pedroso, was playing dominoes in the prison cafeteria, Haynes emerged from the kitchen and poured scalding oil over Flores-Pedroso's head. Flores-Pedroso was severely burned over 18% of his body and is disfigured for the rest of his life. Haynes pleaded guilty to assault and was sentenced to 33 months imprisonment. His guilty plea reserved the right to argue on appeal that the district judge had erred in refusing to allow Haynes to tell a jury that the attack was justified as self defense. The court of appeals affirmed his conviction.

Haynes argued that Flores-Pedroso was a bully and a predator who coerced weaker prisoners into providing him with food, commissary items and sex. Flores-Pedroso had pressured Haynes to use his position as kitchen worker to do favors for him. When Haynes refused, Flores-Pedroso "threatened to make Haynes his 'bitch' (homosexual plaything)." For over a month Flores- ...

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 he was not entitled to benefits while he was incarcerated pursuant to 42 U.S.C. § 402(X). An administrative law judge affirmed the SSA's decision. Butler filed suit in federal court and it was dismissed for failing to state a claim upon which relief could be granted. The court of appeals affirmed.

The appeals court noted that every court to consider the constitutionality of 42 U.S.C. § 402(X), this includes the Second, Fourth, Eighth, Tenth and Eleventh circuits, had upheld the law. Congress has wide discretion in administering welfare resources. The court held that § 402(X)'s ban on social security benefits to prisoners does not violate constitutional guarantees to due process, equal protection and protection against ex post facto laws and bills of attainder.

The court also held that Butler was provided with ample due process before his benefits were terminated because he participated in ...

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 12(b)(6) dismissal cannot be justified merely because it is improbable that the plaintiff can prove his allegations.

Stanley Chance, a 27-year old Connecticut state prisoner, suffered from severe overbite and other dental problems. Some of the prison dentists recommended that various teeth be pulled. Chance refused, believing that the teeth could be saved. Later, other prison dentists decided that some of the teeth could be saved and filled them. Chance lost the untreated teeth. He filed suit alleging that the delay in treatment of the lost teeth, due to the original prison dentists' refusal to treat them, caused him pain and resulted in their loss. Chance also alleged that the dentists recommended pulling because they would be paid extra for extractions.

The defendants moved for dismissal under Rule 12(b)(6). Under Rule 12(b)(6), the material allegations in the complaint must be taken as true and ...

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, Diaz lost 180 days of good time due to an alleged disciplinary offense. Diaz challenged the prison disciplinary proceedings via federal habeas corpus. The federal district court denied relief and Diaz appealed. During the pendency of the appeal, Diaz was deported to the Dominican Republic.

Previously, in Bryan v. Duckworth, 88 F.3d 431 (7th Cir. 1996), the Seventh Circuit had extended the rule of Sibron v. New York, 392 U.S. 40 (1968) to prison disciplinary cases. This allows habeas corpus petitions to remain active after the prisoner is released if there is the possibility that the conviction will have adverse future collateral consequences. However, since Bryan, the Supreme Court decided Spencer v. Kemna, 118 S.Ct. 978 (1998), [ PLN , Aug, 1998], holding that the possible future effects of a parole revocation were too speculative to prevent mootness of his federal habeas corpus action after he had been released ...

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 rights to free exercise of their religion when it failed to provide them kosher meals. The plaintiffs requested a preliminary injunction instructing the Colorado Department of Corrections (CDOC) to feed them kosher meals.

The court held that plaintiffs had a First Amendment right to practice their religion by "keeping kosher" and CDOC was not providing kosher food. CDOC had a policy to provide special religious diets through standard menu alternatives. CDOC also purchased a large amount of kosher items. However, its failure to prepare the kosher food in a kosher kitchen rendered the food non-kosher.

The court analyzed the request for preliminary injunction using four factors and held as follows: 1) The suit raised "questions so serious, substantial, difficult, and doubtful as to make them fair ground for litigation and thus for more deliberate inquiry." 2) The plaintiffs were suffering irreparable injury because their First Amendment rights were being violated ...

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 parole board failed to consider a sentence modification. The trial court issued the writ. The respondent filed a motion to quash the writ, claiming the sentence modification was a forgery, and the trial court decided to hold a hearing via teleconference. Christie failed to appear at the teleconference and the trial court granted the motion and dismissed the case. Christie appealed, claiming she had no access to a telephone and could not have arranged to appear at the teleconference.

The respondent claimed that, because Christie failed to file an affidavit or other evidence showing the sentence modification wasn't a forgery, the trial court's actions were correct. The court of appeals held that a motion to quash is not a motion for summary judgment requiring the opposing party to submit evidence. A motion to quash may only challenge the sufficiency of the petition assuming the petitioner's allegations are ...

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 being investigated for allegedly sexually harassing a female jailer.

CA : On August 9, 1998, Astarte Rice-Davis, a prisoner at the women's federal prison in Dublin, escaped by walking away from the minimum security prison.

CA : On July 12, 1998, John Udy, a Division of Youth Corrections counselor, was fined $1,000 and sentenced to 18 months probation after pleading guilty to paying a 15 year-old female prostitute for sex. Udy claimed he did not know the girl's age.

CO : On September 23, 1998, former Bureau of Prisons guard Stephen Mills, 43, was sentenced to 33 months in prison for beating Florence prisoner Fred Davis. Mills claimed he didn't know Davis was handcuffed and restrained when he beat him. A federal jury convicted Mills on July 2, 1998. The sentence was the lowest one available under federal sentencing guidelines.

CO : On September 24, 1998, Michael Garcia, 23, a ...

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 supreme court held that congress had exceeded its powers under section five of the Fourteenth amendment, therefore the RFRA was unconstitutional as applied to state and local governments. The question left open by City of Boerne was whether the RFRA still applied to the federal government, for prisoners this means the Bureau of Prisons. This ruling holds that it does.

This case comes from a bankruptcy court proceeding where a district court held that a couples' tithe of $13,450 to their church was an "avoidable transaction" under the bankruptcy code. That ruling was reversed at Christians v. Crysta1 Evangelical Free Church (In Re Young) , 82 F.3d 1407 (8th Cir. 1996), where the appeals court held that the RFRA provided a defense to the district court's order that the church reimburse the $13,450 donation to a bankruptcy trustee. The supreme court vacated and remanded the case at ...

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 in remaining in the general prison population.

George Arce, a New York state prisoner, filed suit after spending 18 days in segregation while in transit to litigate a court claim. Under New York prison rules, prisoners temporarily moved to another prison for court proceedings are classified as "holdovers" and placed in segregation because officials at the receiving prison usually have insufficient information to determine if the prisoner can be safely housed in general population. Arce claimed the 18 days in segregation violated his right of access to the courts when guards destroyed his legal papers and retaliated against him for suing them. Arce moved for partial summary judgment on three of his claims. The district court granted the defendants' motion for summary judgment and dismissed the case. See: Arce v. Walker , 907 F. Supp. 658 (WD NY 1995).

The court of appeals affirmed in part, reversed and remanded in part ...

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 South Dakota prisoners filed a class action lawsuit challenging numerous conditions of their confinement. The district court found numerous conditions violated the Eighth and Fourteenth amendments. See: Cody v. Hillard , 599 F. Supp. 1025 (D SD 1984), rev'd in part, aff'd in part at 830 F.2d 912 (8th Cir. 1987)(en banc). In 1985 the district court approved a detailed consent decree between the parties covering numerous issues raised in the lawsuit. The decree had no time limit or expiration date.

On April 16, 1996, the defendant prison officials filed a motion under Fed.R.Civ.P. 60(b) to dissolve the consent decree and the court's supplemental orders to enforce the decree, claiming they were in substantial compliance with both. Readers should note that this case does not involve any aspect of the Prison Litigation Reform Act and its consent decree termination provisions. The plaintiffs ...

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 regarding the medical treatment of transsexuals. Farmer is a pre-operative male to female transsexual who is also infected with HIV. Transsexualism, formally known as gender dysphoria, is a medically recognized psychological disorder.

The defendants filed a motion to dismiss, or in the alternative, for summary judgment. Farmer's suit claimed that the BOP policy on transsexuals violated the Equal Protection clause of the Fifth Amendment because it failed to provide medical treatment for transsexuals, as opposed to other ill prisoners; and she claimed the BOP's failure to enact a new policy, or enforce its existing policy on transsexuals, showed deliberate indifference to her serious medical needs and thus violated the Eighth Amendment.

The court did not decide the equal protection claim, holding it was not prepared to make a factual determination as to whether transsexual prisoners are similarly situated to prisoners with other illnesses or whether transsexual prisoners with ...


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