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Prisoner Education Guide

Prison Legal News: February, 1998

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Volume 9, Number 2

In this issue:

  1. Juvenile Crime Pays (p 1)
  2. Bureau of Prisons Gag Rule Enacted (p 3)
  3. From the Editor (p 4)
  4. Washington "Bulk Mail" Ban of PLN Struck Down (p 5)
  5. Where to Now For Prison Smoking? (p 6)
  6. Resources for Smoking Litigation: Health Effects of Smoking; Legal Cases on Smoking (p 7)
  7. Actual Injury Required in Legal Mail Claim (p 8)
  8. KS S.Ct. Affirms Trust Account "Service Fee" (p 8)
  9. No Immunity for Delaying Arthritis Treatment (p 9)
  10. Deaf Prisoners in Washington Seek Class-Wide Relief (p 9)
  11. Union Denounces Prison Labor (p 9)
  12. Florida PRIDE Employees Denied Minimum Wages (p 10)
  13. PRIDE Eyes Private Markets (p 10)
  14. No Immunity for Florida Private Jail (p 11)
  15. PLRA Requires Winning Prisoner to Pay 25% of Defendants' Atty Fees (p 12)
  16. Exposure to Cold States Claim Exhaustion Requirement of PLRA Not Retroactive (p 13)
  17. PLRA Attorney Fee Restrictions Not Retroactive (p 13)
  18. WSP Ban on Gift Subscriptions Enjoined (p 14)
  19. Trial Required in Oklahoma Beating Case (p 15)
  20. News in Brief (p 16)
  21. New York Prisoner Settles Excessive Force Case for $25,000 (p 17)
  22. Legal Papers Must be Returned to Owner; Prisoner Legal Mail Banned (p 17)
  23. 7th Circuit Defines "Serious Medical Needs" (p 18)
  24. Inadequate Prison Security Violates 8th Amendment (p 18)
  25. Damages Suit Stayed While Habeas Pursued in Disciplinary Hearing Challenge (p 19)
  26. Idaho Court Access Class Action Suit Proceeds (p 19)
  27. Iowa Prison Nurse Liable in Birthing (p 20)
  28. West Virginia Prisoners Lose Computers (p 20)
  29. Cold Cell Violates 8th Amendment (p 21)
  30. Grand Jury Indicts 45 Texas Prisoners (p 22)
  31. Rhode Island Ban on Royalties to Felon Authors Struck Down (p 22)
  32. Second Circuit Rules on Appointment of Counsel (p 22)

Juvenile Crime Pays

According to a study by the Office of Juvenile Justice and Delinquency Prevention (OJJDP), from 1991 to 1995 the population of youthful offenders held in privately-operated facilities grew 10% to an estimated 35,600. The juvenile justice system has become enormously profitable as youths are channeled from the schoolhouse to the jailhouse in ever-increasing numbers. In 1997 Equitable Securities Research released a report entitled "At-Risk Youth: A Growth Industry," which indicates there are 10,000 to 15,000 private juvenile justice service providers; publicly traded juvenile corrections companies made $75 million in net profit in 1996 alone. An estimated $3 billion is spent each year on services for juvenile offenders at the federal, state and local levels, and up to $50 billion is spent annually on programs for at-risk youth.

Private-sector companies that primarily provide adult corrections services are jumping on the "jails for juveniles" bandwagon: The Corrections Corp. of America (CCA) and Wackenhut operate seven juvenile facilities each, and the Corrections Services Corp. operates six. In May 1997, Cornell Corrections, another adult prison contractor, announced its interest in acquiring the privately-held Abraxas Group, a leader in juvenile supervision services that provides residential, educational and treatment programs to over 1 ...

Bureau of Prisons Gag Rule Enacted

Effective June 20, 1997, the Department of Justice and its Federal Bureau of Prisons (BOP) enacted changes to 28 CFR (chapter V, subchapter A, Part 501) governing general management and administration of BOP prisons. The new rules allow the federal government to target BOP prisoners who are deemed to present a threat to "National Security" for the purpose of eliminating the ability of those prisoners to communicate with the outside world.

Section 501.2, titled "National security cases", states that "Upon direction of the Attorney General, the Director, Bureau of Prisons may authorize the Warden to implement special administrative measures that are reasonably necessary to prevent disclosure of classified information upon written certification to the Attorney General by the head of a member agency of the United States intelligence community that unauthorized disclosure of such information would pose a threat to the national security and that there is a danger that the inmate will disclose such information. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to prevent ...

From the Editor

Greetings and welcome to another issue of PLN . Several readers have pointed out that PLN editorials are needlessly long. Naturally, my feelings were bruised. The truth hurts. From now on, though, the limit on PLN editorials is 500 words (a half-page) rather than 1,000.

So maybe I should get right to the important stuff. First of all, I'd like to thank PLN s DTP/Layout person, Matt Esget, who has accomplished miracles. Matt has done what no others before him could do he makes the PLN run on time. Secondly, I'd like to thank all of you for generously responding to PLN 's third annual fund-raiser. As of Jan. 7, 1998 you have sent $1,328 in donations which is short of the $6,000 PLN needs to offset publishing expenses this year.

Where does it all go? Things are gettin' expensive "out there" folks. Even the little things add up quickly. PLN 's monthly phone bill nears $200. The amount we spend on postage stamps just on PLN related mail tops $150 a month.

Which reminds me. One PLN reader in California's Pelican Bay state prison (undoubtedly a hellish place to do time) writes to ...

Washington "Bulk Mail" Ban of PLN Struck Down

Since PLN began publishing in 1990 it has experienced sporadic attempts at censorship by the Washington DOC. This has ranged from a statewide ban of the first three issues to harassment of the editors. Unable to articulate a threat to "legitimate penological goals" that PLN might pose, censorship attempts have ...

Where to Now For Prison Smoking?

Where To Now For Prison Smoking?

By Paul Wright

As noted in last month's article, "Smoking, Lies and Hypocrisy," notes, the tobacco settlement between the states and the tobacco industry will have no impact on prisoners, assuming it is actually implemented. When the supreme court decided Helling v. McKinney and held that exposing a nonsmoking prisoner to Environmental Tobacco Smoke (ETS, a.k.a. second hand smoke), a known carcinogen, violates the eighth amendment ban on cruel and unusual punishment, one would have thought it signaled the end of prison smoking. Since 1993 a large number of county jails have banned smoking but only some prison systems have. The prison systems that have banned smoking are: MN, NE, IN, ID, MA, OR, UT and TX with the latter being the largest state to do so.

While some DOC's cited litigation and health factors as the reason behind the smoking ban (i.e., NE); others stated they had banned smoking as a measure to further punish prisoners (i.e. Texas).

When Prison Smoking is Banned

Prison officials tend to be the most ardent opponents of prison smoking bans. To hear their testimony before legislatures, ending smoking in prison will ...

Resources for Smoking Litigation: Health Effects of Smoking; Legal Cases on Smoking

Health Effects of Smoking: The American Lung Association offers a detailed, comprehensive series of booklets and reports which detail the negative health effects of smoking, exposure to second hand smoke, etc. Contact: ALA, 1740 Broadway, New York, NY 10019-4374. 1-800- Lung-USA.

Legal Cases on Smoking: Anyone litigating smoke related issues should obtain a copy of Summary of Legal Cases Regarding Smoking in the Workplace and Other Places . This 66 page synopsis of all significant cases dealing with smoking litigation includes a chapter dealing with prisons. In addition to court cases the summary includes law review articles, government reports, newspaper and magazine articles and much more. This is an invaluable resource that will save countless hours of research. Cost is $10. Contact: Tobacco Control Resource Center, 102 The Fenway, Boston, MA 02115.

Other important materials that courts have relied upon to rule in favor of prisoner litigants challenging ETS exposure is a 1986 report by the U.S. surgeon general which states that ETS causes lung cancer in non-smokers, killing up to 5,160 non-smokers a year. In 1993 the Enviromental Protection Agency classified ETS as a known carcinogen." The American Lung Association can provide copies of these and other materials ...

Actual Injury Required in Legal Mail Claim

In the December, 1995, issue of PLN we reported Bieregu v. Reno , 59 F.3d 1445 (3rd Cir. 1995) where the third circuit held that a prisoner need not show harm to a court claim when the confidential) of his legal mail was repeatedly violated. After Bieregu was decided the supreme court held that prisoners claiming a violation of their right of access to the courts must show "actual injury" to a court claim, such as the loss of rejection of a "non-frivolous" claim challenging the length or conditions of confinement. See: Lewis v. Casey , 116 S.Ct. 2174 (1996) [ PLN , Aug, 1996]

Lorenzo Oliver is a New Jersey state prisoner who filed suit after letters he sent a state appeals court, the state attorney general and the DOC commissioner were returned to him without mailing and in some cases had been opened outside his presence. The letters eventually reached their destinations. The district court dismissed the suit, holding Oliver was required to show actual injury with regards to his legal mail claim. The appeals court affirmed.

The third circuit held that Lewis overruled Bieregu . In order to make a court access claim involving legal mail to the courts prisoners ...

KS S.Ct. Affirms Trust Account "Service Fee"

KS S.Ct. Affirms Trust Account "Service Fee"

In two separate cases the Kansas supreme court affirmed a state DOC policy, KAR 44-5-115, which imposes a $1 monthly surcharge on prisoners for administering their prison trust accounts. A state district court held that assessing service fees violated the prisoners' due process rights because the funds were paid to a crime victims compensation fund rather than used to defray the costs of actually administering the trust accounts. The district court also held the policy was illegal because it exceeded the DOC's statutory authority. The district court ordered the fees refunded and enjoined further collection.

The Kansas supreme court reversed and remanded. "We conclude the assessment of a $1 monthly service fee for administering inmate's trust accounts is not violative of the inmates' due process rights." Kansas prisoners receive interest on their trust fund accounts which would offset the fee.

The court held the prisoners lacked standing to challenge the fees being sent to a victim compensation fund rather than to defray the administration of the accounts. "The injured parties are the taxpayers of Kansas" not the prisoners who, presumably, don't pay taxes. The court held that suits to ...

No Immunity for Delaying Arthritis Treatment

Afederal district court in West Virginia held prisoners had a clearly established right in 1994 to prompt medical treatment and to have prescribed treatment followed. Oscar Finley, a West Virginia state prisoner suffers from arthritis and has a physician's recommendation that he not be placed in handcuffs. Despite the recommendation, Finley was handcuffed by prison guards, suffered extreme pain and was denied medical attention for six days. Finley filed suit claiming this violated his eighth amendment rights. The defendants claimed Finley did not have a "serious medical need" sufficient to invoke the eighth amendment.

The court denied the defendants summary judgment, holding material facts were in dispute requiring a trial to resolve. Finley made a prima facie case that he had a medical condition requiring treatment, that the condition affects his daily activities and he suffers pain as a result. Therefore summary judgment was inappropriate.

The court held that prisoners' right to prompt medical attention for serious medical needs was clearly established in 1994. Thus, the defendant prison officials were not entitled to qualified immunity from money damages. The court granted several of Finley's motions to compel discovery and set a trial date. See: Finley v. Trent , 955 ...

Deaf Prisoners in Washington Seek Class-Wide Relief

by David C. Fathi, Jeff B. Crollard and Leonard J. Feldman

Lawyers representing two deaf prisoners in a lawsuit against the Washington Department of Corrections (WDOC) are seeking to broaden the suit into a class action on behalf of all deaf and hearing impaired prisoners in the custody of WDOC.

Duffy v. Riveland began in 1992, when Sean Duffy filed suit in federal court, alleging that WDOC's failure to provide him with a qualified sign language interpreter for a prison disciplinary hearing violated his rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973 (RA), and Revised Code of Washington (RCW) 2.42.120. The district court granted summary judgment against Duffy, but the Ninth Circuit reversed and remanded for further proceedings. See Duffy v. Riveland , 98 F.3d 447 (9th Cir. 1996). [PLN. Jan. 1997].

Back in the district court, Duffy was consolidated with C.A. v. Lehman , another case brought by a deaf prisoner challenging WDOC's failure to provide qualified interpreters and other accommodations needed by deaf persons in prison. On December 1, 1997, lawyers for both plaintiffs filed a motion for leave to file an amended complaint on behalf of a plaintiff ...

Union Denounces Prison Labor

Iowa DOC officials are aggressively marketing prison labor to private firms, with a goal of placing prisoners in at least 650 private-sector jobs. Iowa prisoners currently make license plates, produce furniture for government offices, and do telemarketing to promote Iowa tourism.

They also make sandwiches for sale in vending machines, and work for companies such as Heartland Communications (telemarketing) and Misty Harbor (building components for mechanical boat-lifts).

Union officials denounced the scheme to expand prisoner labor into more private-sector jobs.

"If prison labor is wrong in China," said Mark Smith of the Iowa AFL-CIO, "it sure as hell is wrong in Iowa."

Source: Socialist Worker [published bi-weekly, subscriptions are $25 ($40 Institutional) from: Socialist Worker; PO Box 16085; Chicago, IL 60616].

Florida PRIDE Employees Denied Minimum Wages

The court of appeals for the eleventh circuit affirmed summary judgment against Florida state prisoners who claimed entitlement to the federal minimum wage under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. The court held that the private, non profit corporation established by statute, independent of the state, to operate the prison industries of the Florida Department of Corrections (FDOC) was a "state instrumentality." Given this finding, the court held that prisoners who work for industries operated as state instrumentalities are not covered by the FLSA.

Since 1981 the FDOC prison industries have been operated by Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). PRIDE operates 52 businesses at 21 Florida prisons, employing 2,838 of Florida's 61,992 state prisoners, and 362 free people. It manufactures and produces a wide range of products and services which it sells both internationally and to government entities throughout this country, generating annual revenues in excess of $70 million. It also produces agri- and aquacultural products which it sells on the open market. PRIDE pays its executives, outside lawyers and lobbyists handsome salaries and fees, while paying its prisoner employees between 50 cents and $1.50 per hour ...

PRIDE Eyes Private Markets

Florida's prison industry program, known as PRIDE, is developing a pilot program to allow private manufacturers to "outsource" contracts that would have PRIDE furniture plant workers produce furniture for eventual sale on the open market.

Success there could lead to more "outsourcing" contracts which would have PRIDE workers doing everything from processing seafood to making mattresses for private industry.

"Our marketplace in the past has been tax entities -- cities, counties, the state and school boards," says PRIDE business development project manager Brian Connet. "We see the [tax entity] market actually shrinking and since the number of inmates is increasing, we need to find other avenues to put inmates to work."

However, PRIDE's foray into the private marketplace rankles some labor unions and business leaders.

"Prison labor is one thing," says Phil Neuenfeldt of the AFL-CIO. "But prison labor that provides unfair labor to the outside world and keeps pressure on wages downward is not a good thing."

A Florida labor broker told reporters that some clients already have indicated they won't be needing the services of her company's contingent laborers much longer because they plan to take advantage of PRIDE's outsourcing program. "This makes it ...

No Immunity for Florida Private Jail

The district court for the middle district of Florida held that the sheriff, the county and a private corporation operating the county jail were liable for detaining an arrestee for 30 days without a probable cause hearing. The court also held that monetary damages were the proper remedy and that the private operator was not entitled to qualified immunity.

On September 18, 1992, Thomas Blumel was arrested by a Florida sheriff's deputy for allegedly violating a restraining order obtained by his estranged wife as an adjunct to a divorce action. Blumel was booked into the county jail, which was operated by the Corrections Corporation of America (CCA) under contract with the county.

The day after his arrest Blumel was brought before a county judge for a "first appearance," which is normally intended as a probable cause hearing. However, the judge in this instance was not the same judge who issued the restraining order, so he could not rule on the contempt. Blumel was neither released nor offered bail because his arrest was a warrantless arrest.

A month after Blumel was arrested the judge who issued the restraining order finally held a hearing on the matter. As a result the ...

PLRA Requires Winning Prisoner to Pay 25% of Defendants' Atty Fees

In the first published ruling on this issue, a federal district court in New York required a winning prisoner to pay 25% of the reduced attorney fees assessed against the losing prison official defendants. Kevin Clark is a New York state prisoner who sued prison officials who had violated his ...

Exposure to Cold States Claim Exhaustion Requirement of PLRA Not Retroactive

A federal district court in Illinois held that a prisoner's allegations of exposure to extreme cold while confined to a cell states an eighth amendment claim. The court also declined to apply the exhaustion of administrative remedies requirement of the Prison Litigation Reform Act of 1996 (PLRA) retroactively in this case.

In December, 1995, Anthony Mitchell was confined to a segregation cell at Stateville Correctional Center. During this period the temperature in Mitchell's cell ranged between 32° and 50°F, causing his extremities to go numb and preventing him from sleeping. Mitchell claimed that none of the defendants took any remedial action regarding his complaints.

Mitchell filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against three Stateville prison officials. The defendants moved for dismissal under Fed.R.Civ.P. 12(b)(6) on the theory that Mitchell's allegations failed to state a claim for the violation of his constitutional rights. The defendants also argued that Mitchell's claim should be dismissed because he failed to exhaust his claim through the Illinois DOC administrative grievance process, as now required by § 803 of the PLRA.

The defendants inanely contended that "prisoners cannot expect all the ...

PLRA Attorney Fee Restrictions Not Retroactive

A federal district court in New York held that the restrictions imposed on recoverable attorney fees by the Prison Litigation Reform Act of 1996 (PLRA) do not apply retroactively and are not applicable to claims by attorneys retained prior to the PLRA's enactment for work performed after it took ...

WSP Ban on Gift Subscriptions Enjoined

In two separate, unpublished rulings, different federal magistrates in Spokane, Washington, held that a Washington State Penitentiary policy requiring that prisoners purchase all magazine subscriptions and books from their prison trust accounts was unconstitutional. Both courts enjoined the policy. WSP Policy 450.100 states that prisoners can receive publications from the publisher provided they "are paid for in advance by the inmate." This was clarified by superintendent Tana Wood via an administrative bulletin, stating this "means the publication must be paid for by the inmate with funds from his account. Gift subscriptions/publications (a subscription or publication paid for by someone other than the inmate) are prohibited."

Clayton Crofton filed suit challenging the constitutionality of the policy. In 1996 he obtained rulings in his favor on this issue. [We are publishing this information now to alert PLN readers of the courts' injunctions. PLN is among the publications to experience censorship at WSP on the grounds that the subscription was not purchased by the prisoner from his trust account. The trust account purchase requirement is also being challenged in Humanists of Washington v. Lehman , see PLN , Nov. 1997].

In Crofton v. Ocanaz , CY-95-3142- LRS, magistrate Suko concluded that the "Defendants fail ...

Trial Required in Oklahoma Beating Case

The court of appeals for the tenth circuit held that a prisoner's claim for declaratory and injunctive relief are mooted once he is released from incarceration and that questions of fact regarding the application of force by guards precludes summary judgment in their favor. The court also held that the medical director was not liable for alleged wrongful medical treatment; that the prisoner's Rule 35 motion for medical examination was properly dismissed; and that the district court properly refused to order recusal of the magistrate judge.

On June 2, 1993, a "fight" erupted between an Oklahoma state prisoner, Rickke Green, and several guards while Green was being escorted in handcuffs and leg irons from the yard to a cell block. Green alleges that the escorting sergeant became impatient with Green's progress and whacked him across the back with a nightstick, knocking him to the ground. The sergeant, who was quickly joined by two other guards, viciously attacked Green. The three guards savagely beat Green until a lieutenant ran over and stopped the assault.

Of course the guards have a different version of events. According to the escorting sergeant, Green precipitated the altercation by hitting him above the ...

News in Brief

CA : Joe Sandoval, 60, resigned as secretary of California's Youth an Adult Correctional Agency on August 15, 1997, saying he wanted to spend more time with his family. Upon his resignation governor Pete Wilson appointed Sandoval to the state's Narcotic Addict Evaluation Authority. The position pays $38,000 a year. The Authority meets one day a week.

CO : In September, 1997, Boulder County jail prisoner Joshua Kann was sentenced to two years in prison for throwing urine on jail guards. Kann was charged with second degree attempted assault under a new law making it a felony for prisoners to throw bodily fluids on guards.

CO : On October 30, 1997, Brian Hood and Joey Byers escaped from the Fremont Correctional Center by cutting through a double fence with bolt cutters. Both prisoners were serving life sentences for murder. Hood was recaptured 16 hours later by construction workers who found him hiding in a housing development.

FL : On October 21, 1997, a state jury awarded former St. Lucie County jail prisoner Teresa Weatherford $12,000 in damages because she fell and injured herself outside a shower at the jail. The sheriff's office announced it planned to recoup its money ...

New York Prisoner Settles Excessive Force Case for $25,000

Michael Slater, a New York State prisoner, will receive $18,000 in settlement of an excessive force civil rights claim against two guards at Clinton Correctional Facility in Dannemora, New York. The settlement also provides for an additional $7,000 in attorney fees and costs to be paid to Prisoners ...

Legal Papers Must be Returned to Owner; Prisoner Legal Mail Banned

The court of appeals for the eighth circuit held a district court erred when it ordered prison officials to allow prisoner co-plaintiffs to correspond with each other about their case. The court affirmed an injunction requiring prison officials to return to its owner legal papers in the possession of jailhouse lawyers if the latter is transferred to another unit.

Iowa state prisoners, and jailhouse lawyers, George Goff and Dudie Rose filed suit against a prison ban on legal correspondence between prisoners in different units. The district court ordered prison officials to allow prisoners to correspond with other prisoners on legal matters and ensure legal papers were returned to their owner if the jailhouse lawyer assisting them was moved to a different unit. The court of appeals affirmed in part, reversed in part and remanded.

Goff and Rose were co-plaintiffs in a prior suit against prison officials when Goff was transferred to a different unit. Under a then recent prison policy Goff and Rose could not correspond with each other or the prisoners they were assisting in their legal matters. The court held that Goff and Rose lacked standing under Lewis v. Casey , 116 S.Ct. 2174 (1996)[ PLN , Aug. 1996 ...

7th Circuit Defines "Serious Medical Needs"

The court of appeals for the seventh circuit announced that medical conditions that cause pain, but are not life threatening, constitute serious medical needs for eighth amendment purposes. In doing so, the court clarified this area of law for the seventh circuit.

Carlos Gutierrez is an Illinois state prisoner who developed an infected cyst on his back. Gutierrez sought treatment for the cyst over a period of months during which it became infected and he experienced delays in getting treatment. Gutierrez filed suit claiming the inept and delayed treatment violated his eighth amendment right to medical care. The district court granted the defendants' motion for judgment on the pleadings, holding that Gutierrez's cyst did not constitute a "serious medical need" for eighth amendment purposes.

The appeals court affirmed, not because it agreed with the district court's analysis but because Gutierrez "pleaded himself out of court."

In Estelle v. Gamble , 429 U.S. 97, 97 S.Ct. 285 (1976) the supreme court held the eighth amendment requires that prisoners receive adequate medical care for their serious medical needs. Prison officials violate the eighth amendment when they show "deliberate indifference" to those needs. To prevail on this type of claim ...

Inadequate Prison Security Violates 8th Amendment

Afederal district court in Puerto Rico held a prison security officer could be held liable for a prisoner's murder when he knew of inadequate staff supervision and non functioning cell locks, among other things, and did nothing to improve security. Angel Orta Fernandez, a Puerto Rico prisoner, was killed by other prisoners. His family filed suit claiming prison officials were deliberately indifferent to his eighth amendment right due to uncontrolled and violent conditions at the Bayamon Correctional Institution. The defendants sought summary judgment, which the court granted in part and denied in part.

The court held that a prison warden who assumed the job seven days before Orta was killed could not be held liable for his death. However, Ricardo SotoTorres, the prison security officer could be held liable. The plaintiffs did not claim that Soto had any personal knowledge Orta was in danger. Instead, "They cite the shockingly high number of inmate killings, the lack of functioning locks on the cells, a dearth of guards so low that the prisoners were basically unguarded, a contrastingly high level of gang control, as well as widespread corruption among the few guards present." Soto did not deny the allegations. Instead, he ...

Damages Suit Stayed While Habeas Pursued in Disciplinary Hearing Challenge

As the courts grapple with the question of when prisoners can sue for money damages under 42 U.S.C. § 1983 when challenging disciplinary hearings that result in lost good time and when they must pursue habeas corpus remedies, the seventh circuit issued a clarifying ruling on the sequencing of such suits. Roy Post, an Illinois state prisoner, was infracted for attempting to escape, found guilty and sentenced to one year in segregation and one year loss of good time credits. Post filed a 28 U.S.C. § 2254 habeas corpus petition seeking restoration of his good time credits and a simultaneous 42 U.S.C. § 1983 action seeking money damages for the time spent in segregation. The district court, in a two sentence order, dismissed both actions and denied Post a certificate of appealability.

The court of appeals granted Post a certificate of appealability and vacated and remanded both actions. Readers should note that this ruling was decided before the supreme court's decision in Edwards v. Balisok , 117 S.Ct. 1584 (1997), [ PLN , July, 1997], but it is not affected by it as the supreme court agreed with the reasoning in this case. Namely that Heck v. Humphrey ...

Idaho Court Access Class Action Suit Proceeds

Afederal district court in Idaho denied prison officials' motion to dismiss a lawsuit challenging inadequate court access and to decertify the case as a class action suit. In 1992 Idaho prisoners at two prisons filed a class action suit challenging the operation of prison law libraries. The defendants claimed that in light of Lewis v. Casey , 116 S.Ct. 2174 (1996)[ PLN , Aug. 1996] the court should dismiss the suit for lack of standing because none of the named plaintiffs claimed actual injury, as required by Lewis , to any pending legal claims. The court denied the motions.

Prior to Lewis prisoners challenging an inadequate prison law library did not have to allege, or prove, actual injury. The inadequacy of the law library itself constituted the injury. The Lewis requirement of "actual injury" applies to class action suits. The court notes that once a class is certified, a prisoner's transfer or release does not moot the claim as long as they had a legitimate claim when the class was certified. The plaintiffs claim the law library set up in Idaho prisons is inadequate for non English speaking prisoners. They provided affidavits showing "actual injury" to plaintiff class members who lost ...

Iowa Prison Nurse Liable in Birthing

The court of appeals for the eighth circuit held a prison nurse was properly found liable for ignoring a prisoner's complaint that she was in labor. The appeals court affirmed an award of $1,000 in compensatory damages but vacated an award of $3,500 in punitive damages.

Gloria ...

West Virginia Prisoners Lose Computers

Following the lead of prisoncrats in Washington, New Jersey, Wyoming, and Alaska, West Virginia DOC officials ordered the removal of all prisoner-owned personal computers from state prison cells.

Corrections Commissioner Bill Davis, who took office August 1, 1997, issued a memorandum to all state prison administrators in which he said, "I am philosophically opposed to incarcerated persons having the luxury of computers in their cells." Prisoners were given 30-days to ship their computers out or face having them confiscated. About 30 prisoners have computers at the maximum - security Mount Olive prison, said Davis. He was unsure if prisoners at other state prisons have computers in their cells.

Davis said that prisoners who own computers have used them to gamble, barter and do paperwork for other prisoners, leaving some prisoners in financial debt to others. Debt between prisoners is a very dangerous situation, cautioned Davis.

But taking computers away from prisoners will not curtail those activities because prisoners will find other means, said attorney Jim Sugerman of Mountain State Justice, a legal service for the poor.

Prisoners need to learn how to use computers to get jobs when they are released, Sugerman said. "In modern times, this is the equivalent of ...

Cold Cell Violates 8th Amendment

The court of appeals for the seventh circuit held that extremely cold prison cells violate the eighth amendment but poor cell ventilation in summer does not. Anthony Dixon is an Illinois state prisoner in protective custody at Stateville. He filed suit claiming that in winter his cell was so cold ice formed on the walls and he could see his breath and was unable to perform simple activities such as write a letter. He claimed that in summer months inadequate ventilation made the cell air stagnant and fetid. The district court dismissed the suit on summary judgment.

The court of appeals reversed in part, affirmed in part and remanded. The court cites numerous cases where courts have found an eighth amendment violation when prisoners were exposed to cold and denied alternative means of keeping warm. Under the eighth amendment prisoners are entitled to adequate shelter, which includes warmth. "The question, however, is not simply whether the inmate had some alternative means of warmth, but whether the alternative was adequate to combat the cold.... Moreover, it is not just the severity of the cold, but the duration of the condition, which determines whether the conditions of confinement are unconstitutional.... A condition ...

Grand Jury Indicts 45 Texas Prisoners

A Jones County, TX, grand jury indicted 45 French Robertson and Middleton Unit prisoners in October, 1997, for felony crimes allegedly committed in prison during the previous two years.

Among the indicted were prisoners Michael Dwayne Purnell and Maximiliano Sanchez III, accused of assaulting French Robertson guard Michael D. Helms, who was himself indicted by a Jones County grand jury in June on manslaughter charges in connection with the death of prisoner Gray Lee Crenshaw. [See: Three TX Guards Indicted in Beating Death, PLN Vol. 8, No. 10]

Other prisoners were indicted for assaulting guards with a rock in a sock and a broom handle. Possession of weapons, retaliation, aggravated assault, possession of a prohibited substance, and escape.

Source: Albilene Reporter News

Rhode Island Ban on Royalties to Felon Authors Struck Down

The supreme court of Rhode Island held that the state's Criminal Royalties Distribution Act (CRDA) of 1983, Title 12, chapter 25.1 of the general laws of Rhode Island, is unconstitutional. The CRDA requires that any funds felons receive from films, books or articles must be placed in a criminal royalties fund from which crime victims and the state can seek reimbursement.

In Simon & Schuster v. N.Y. State Crime Victims Board , 502 U.S. 105, 112 S.Ct. 501 (1992) [ PLN , April, 1992] a unanimous U.S. supreme court struck down a similar "Son of Sam" law which would deprive felons of the financial incentive to exercise their first amendment rights. The court in this case held the Rhode Island statute was indistinguishable from that struck down in Simon & Schuster which held: "A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech."

The Rhode Island supreme court held: "We conclude that the Criminal Royalties Act is not narrowly tailored to serve the state's compelling interest in compensating victims of crime from the profits of crime. Moreover, the Act's focus on profits derived ...

Second Circuit Rules on Appointment of Counsel

The court of appeals for the second circuit held that a district court abused its discretion by denying a pro se prisoner's motion to appoint counsel under a local court rule that conditioned such appointment on the prisoner's claim surviving a motion for summary judgment. Burnell Hendricks, a New York state prisoner, filed suit claiming he was subjected to retaliatory prison transfers for filing grievances and law suits against prison officials. Hendricks filed four motions for appointment of counsel. The district court denied the motions under a now superseded local court rule that automatically denied counsel unless the claim survived summary judgment. Hendricks' lawsuit was later dismissed on summary judgment.

The court of appeals for the second circuit appointed counsel; vacated the dismissal and remanded the case. The court gave a detailed discussion to 28 U.S.C. § 1915(e) (formerly 1915(d)), which allows courts to request counsel to represent indigent litigants. The court noted that Hendricks was very effectively stonewalled by the New York attorney general's office when he attempted to conduct discovery to bolster his claims. In Hodge v. Police Officers , 802 F.2d 58 (2nd Cir. 1986) the court set forth the criteria ...


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