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Prisoner Education Guide

Prison Legal News: March, 1998

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Volume 9, Number 3

In this issue:

  1. Kafka in the Desert: Palestinian Detainees Struggle (p 1)
  2. Israeli Soldier Jailed for Refusing to Guard Palestinian Detainees (p 3)
  3. Tales from the Washington IMU Crypt (p 4)
  4. From the Editor (p 4)
  5. Reaching the Breaking Point (p 5)
  6. Fingers in the PIE (p 5)
  7. BJS Reports on Sentencing and Imprisonment (p 6)
  8. Doing Life: Reflections of Men and Women Serving Life Sentences. Portraits and Interviews (p 6)
  9. Peruvian Lawyers Arrested (p 7)
  10. Pro Se Tips and Tactics (p 8)
  11. California Irradiates Prison Visitors (p 9)
  12. WSP Mail Rules Upheld (p 10)
  13. Washington Porn Ban Challenged (p 10)
  14. BOP Porn Ban Held Unconstitutional (p 10)
  15. Struggle at Folsom (p 11)
  16. Spanish Speaking Prisoners Entitled to Interpreters (p 12)
  17. Court Questions PLRA IFP Provisions (p 14)
  18. Attorney Fee Award in Smoking Suit Affirmed (p 14)
  19. Arizona Court Fee Law Upheld (p 15)
  20. AZ Jail's Discriminatory Treatment of Muslims Requires Trial (p 15)
  21. Slavery in South Carolina (p 16)
  22. Ohio Death Row Uprising (p 17)
  23. West Virginia Jailers Sentenced to Prison (p 17)
  24. Turning the Screws in California (p 18)
  25. Sixth Circuit Discusses Habeas IFP (p 19)
  26. Tax Court Required to Assist in Witness Subpoena (p 19)
  27. News in Brief (p 20)
  28. Ad Seg May Require Due Process (p 21)
  29. Snitch Jacketing States 8th Amendment Claim (p 21)
  30. Supervisors Liable for Excessive Force (p 22)
  31. Ohio Students Rally in DC (p 22)
  32. Health Care Contractor Subject to Monell Liability (p 23)
  33. Evidence Must Support Disciplinary Ruling (p 23)
  34. Survivors Manual (p 24)
  35. Zain Fallout Continues (p 24)
  36. Failure to Protect Informant Violates 8th Amendment (p 25)
  37. Class Action Certification Clarified (p 25)
  38. New Jersey DOC Required to Follow Own Rules (p 26)
  39. Pelican Bay $600,000 Wrongful Death Settlement (p 26)

Kafka in the Desert: Palestinian Detainees Struggle

Imagine, if you will, an isolated prison in the desert. Surrounding the one conventional prison building is a large compound, divided into barbed wire enclosures, each holding several dozen prisoners in tents. The compound is walled in, and guarded by military police. The prisoners, however, are civilians. They have not been charged with a crime. Nor have they received a trial. They are imprisoned under half-year detention orders issued by the military which are capable of indefinite renewal and which contain no charges beyond the assertion that "this person constitutes a danger to security." Such an order can be issued based merely upon a person's expression of political views critical of the army or the government.

There is no need to imagine any of this. Not for the nearly 300 Palestinian "Administrative Detainees" imprisoned at Megiddo, an Israeli military prison located in a desolate corner of northern Israel. For those Palestinians, Megiddo is reality.

Some of the nearly 300 detainees have already served three or four years, with no idea how long their imprisonment will continue. Under "Emergency Regulations" which Israel inherited from the British colonial regime, no evidence is required to prove the that the detainees constitute a ...

Israeli Soldier Jailed for Refusing to Guard Palestinian Detainees

Yuval Lotem, a 40-year-old lieutenant in the Israeli Army reserve, like most Israeli men is called up for active duty several weeks a year. In early July 1997, Mr. Lotem was called to active duty and assigned guard duty at the Megiddo prison. When he arrived there, he observed two young Palestinian prisoners taking out the garbage. The two youths were ringed by military police officers and a platoon of reservists carrying tear-gas canisters, helmets, and clubs.

"When I saw that, I sensed how right I was when I refused to be a part of it," Mr. Lotem said of his refusal to serve at Megiddo to protest the detention of Palestinians without trial. "If they've done something wrong, why aren't they being tried?"

Mr. Lotem, who helps direct films for a living, was jailed for 26 days in an army stockade for resisting service at Megiddo. He said he thought about his 5-year-old daughter while he served the 26 days.

"I'm willing to sit in jail time after time so that I can look her in the eye and say, 'I didn't do it,"' he said. "That's much more important than seeing her for ...

Tales from the Washington IMU Crypt

Reader Mail

In case you'd like to report on recent events at Shelton [in one of Washington state's three "IMU" Control Units] here are the basics. In the first week of September [1997] a female guard told guys on F-tier to get ready for yard. [Only] One guy was let out and another guy questioned her about the delay in his yard. She smart-mouthed the guy and then went on break without running the other yards.

About an hour later they let another guy out on the tier [and he] refused to lock back up because he'd been denied part of his yard time. It took about 7 hours, but he eventually cuffed up and left the tier. But not before being shot in the forehead with what's called an "electrical impulse gun". It fires a load of hard rubber balls like buck shot. He was bleeding and required stitches when he left the tier.

A week later a guy was released from his cell without handcuffs. [He was then] told he received a "demotion" in level due to a so-called "observation report". These are infraction-type reports which only [line] staff decide. There's no actual ...

From the Editor

Beginning the first of March, 1998, the PLN book The Celling of America: An Inside Look at the U.S. Prison Industry will be on sale in bookstores nationwide. To date the feedback we've received on the book has been very positive. If you've read the book please write and let us know what you think of it, good or bad. We welcome comments so that we can improve any future books we publish. If you haven't ordered a copy yet just send $19.95 for each copy that you want, and $3 for priority mail postage, to PLN and it will be sent to you immediately. We hope that the book will inform and enlighten people about the reality of the prison industrial complex.

So far PLN 's annual fund-raiser has brought in $2,697.24 in donations, which is still short of the goal of $6,000. If you haven't contributed to the PLN fund-raiser yet, it's not too late. All donations are tax deductible for those who pay taxes. Every little bit helps, so don't think that small donations don't count.

Recently a few readers have written in to ask ...

Reaching the Breaking Point

A guy was mad over having his letter rejected because his girlfriend said something [in the letter] about sex. He was also tired of being lied to about getting out of IMU [Intensive Management Unit, Washington state's version of a 23/7 Control Unit].

So last week [just before Thanksgiving] he goes to the shower, breaks the lights out in the shower, breaks the door down somehow, and gets out on the tier where he commences to break lights, cell door windows, and [pries] door frames apart using a metal bar he tore off the shower.

After this, he goes upstairs, stands on the railing, and breaks a hole in the false ceiling. Once he's done, he climbs up into the ceiling, breaks through the wall separating B-tier from A-tier, and breaks another hole into the false ceiling over there.

Once he drops through [the hole in the ceiling] on A-tier, he proceeds to bust things up over there as well. He passed the metal] bar into different cells so they could do the same.

By this time there's a squad of 20 to 30 guards in front of A- and B-tier, fully equipped with electric shields ...

Fingers in the PIE

I thought you might be interested in the Prison Industry Enhancement (PIE) program that was implemented at select Virginia prisons in 1997. The program allows the VDOC to contract outside of Virginia for prisoners to perform labor at minimum wage. I worked in the program until I found out how the money was being allocated. I enclose a copy of my pay stub that shows this allocation [received by PLN but not reproduced here].

Prisoners in this PIE program receive 25 percent of their gross pay; the DOC gets 25 percent; the Criminal Impact Compensation Fund gets 10 percent; and the withholding tax is about 8 percent.

It is interesting to note they take only 10 percent for the victims compensation fund (the federal guidelines say they can take out up to 20 percent for this type of fund). I doubt the 10 percent will even pay the salaries of those bureaucrats who decide who is eligible to receive compensation. The money does not go to the victim of the prisoner working in the PIE program. Instead it goes into a fund, and the bureaucrats sift through mounds of applications to decide who gets how much.

In addition, if the ...

BJS Reports on Sentencing and Imprisonment

The Bureau of Justice Statistics (BJS) released two reports that may interest PLN readers: Prisoners in 1996 (NCJ 164619, June 1997) and Felony Sentences in the United States, 1994 (NCJ 165149, July 1997).

The report on prisoners provides state-by-state (and federal) prison population statistics through year-end 1996. Highlights:

During 1996, the number of female prisoners rose by 9.1 percent, nearly double the 4.7 percent increase of male prisoners.
California (147,712), Texas (132,383), and the federal BOP (105,544) together held 1 in every 3 U.S. prisoners.
On December 31, 1996, 1 in every 118 men and 1 in every 1,818 women were under the jurisdiction of state or federal correctional authorities.
In 1996, the number of state and federal prisoners increased by 5 percent, lower than the 6.8 percent growth rate in 1995 and below the annual average growth rate of 8.1 percent since 1985.

The report on felony sentences reveals a stark difference between how felony convictions are disposed of by state and federal courts. Unlike the report on prisoners, this one does not offer a state-by-state breakdown on sentencing figures. It combines all states into one category and compares that ...

Doing Life: Reflections of Men and Women Serving Life Sentences. Portraits and Interviews

by Howard Zehr

Book Review by Dan Pens

What does it mean to face a life prison sentence? That question holds a unique meaning in Pennsylvania, where more than 3,000 men and women are doing life. In Pennsylvania the only way out of a life sentence is commutation, and those are exceedingly rare. A PA lifer is six times more likely to die in prison than to ever get out alive.

Zehr gained access to lifers in several PA prisons. He interviewed and photographed about 70 men and women for this book. The reason? As Zehr states in the book's brief forward: "We tend not to see victims or offenders as real people.... Offenders are faceless enemies who embody our worst fears."

Zehr invited the lifers he interviewed to choose street clothes to wear, then photographed them against a neutral background with their eyes engaged by the camera. The result? Readers of this book cannot help but view the subjects as real people -- not the faceless enemy.

I found the interviews unremarkable. Maybe I am jaded by the thought that "I've heard it all before." The photography, however, is striking and powerful. The book is attractive and ...

Peruvian Lawyers Arrested

Between November 18-21, 1997, in Lima, Peru, agents of the Peruvian political police, DINCOTE, arrested lawyers Ernesto Messa Delgado, Carlos Gamero Quispe, Luis Ramon Landaure and Teodoro Bendezu Montes. The arrestees' family members said they were given no reason for the arrests and noted that the detentions occurred after the lawyers had complained of "strange break-ins" at their law offices.

Attorney Diego Obregon Palacios, representing the detained attorneys, said that his colleagues were part of a list of more than 200 Peruvian lawyers who are being investigated by DINCOTE for "ties to terrorism" and who may be arrested in the near future. Obregon said the detained lawyers were being accused of acts of terrorism, apology for terrorism and treason to the fatherland, even though police had made no public statement concerning the charges. Obregon said their arrest was due to their defense of accused members of the Communist Party of Peru (PCP, AKA the "Shining Path"), and that they were being held for interrogation about the PCP.

All four arrested lawyers are members of the Association of Democratic Lawyers (ADL). In order to practice law in Peru one must be a member of the Bar Association. The ADL is composed ...

Pro Se Tips and Tactics

By John Midgley

In my last column, I began a discussion of summary judgment motions in prison cases, which I continue in this column. In prison cases, summary judgment motions are often made by defendants to try to get judgment without the need to go through a trial. Under Federal Rule of Civil Procedure 56 ("Rule 56"), summary judgment will be granted if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." (Emphasis mine.) In the last column, I discussed what summary judgment is, the role of discovery in summary judgment proceedings, and how to determine what are the material facts. In this column, I first discuss the legal standards that are used to decide summary judgment motions and then, in the context of the legal standards, discuss what a "genuine issue" is, and talk about how to show there are "genuine issues of material fact" sufficient to defeat a summary judgment motion.

Legal Standards For Deciding Summary Judgment Motions

Summary judgment, as it is written into Rule 56, is not supposed to be the same as a trial; rather, it is supposed to be a ...

California Irradiates Prison Visitors

The California Department of Corrections (CDC) has installed nine high-tech X-ray scanners in six prisons and has plans to install them throughout the 33-prison system. The devices, based on "back-scatter" X-ray technology, are used to search visitors. The machine produces a crude image of visitors' bodies without their clothing.

"I think it's absolutely outrageous," said Sacramento attorney Rita Barker, who regularly visits San Quentin. "You know how careful doctors and dentists are about X-rays; they don't take them unnecessarily. For the state to subject us to this is unconscionable."

Nicolet Imaging Systems, which makes the "Secure 1000", says it can detect nonmetallic objects such as concealed money, syringes, narcotics, and ceramic explosives. The machines, which sell for $116,000 each, are safe. The company maintains the machines are safe, claiming the amount of radiation exposure is equivalent "to being alive 14 minutes on the planet."

Radiation experts from the state Department of Health have inspected the devices in San Diego, where they are manufactured, but say they need to further study the design and operation of the equipment before reaching any conclusions.

The same devices were tested in North Carolina prisons in a pilot program that ended in ...

WSP Mail Rules Upheld

Joseph Allen filed suit challenging various aspects of the mail policy at the Washington State Penitentiary. After filing suit Allen did no discovery and when the defendants moved for summary judgment he did not bother responding. Not surprisingly, the court ruled against Allen. Surprisingly, the court decided to publish its ruling and establish a precedent. On the DOC's uncontested motion the court upheld a WSP ban on catalogs, sexually explicit materials, loose postage stamps, personal letters to and from Allen describing homosexual activity and books of stamps without Allen's name and DOC number on them. See: Allen v. Wood, 970 F. Supp. 824 (ED WA 1997).

Washington readers should note that the DOC's ban on sexually explicit material is being challenged in the ACLU sponsored suit Humanists of Washington v. Lehman. See: PLN, Nov. 1997.

Washington Porn Ban Challenged

Playboy Suit Not Frivolous: In an unpublished ruling the court of appeals for the ninth circuit held that a federal court in Spokane, Washington, erred when it dismissed as frivolous a lawsuit by prisoner Mark LaRue challenging the censorship of his subscription to Playboy . In his complaint LaRue alleged that his first and fourteenth amendment rights were violated when Washington prison officials confiscated his Playboy magazine under its ban on sexually explicit materials. [See Nov. 1997. PLN for the background on recent censorship in Washington state prisons.] LaRue also claimed the policy was arbitrarily enforced.

The appeals court held this was sufficient to state a claim under 42 U.S.C. § 1983. The case was remanded to the district court for further proceedings. Readers should note this is not a ruling on the merits and, as an unpublished ruling, cannot be cited as precedent. See: LaRue v. Blodgett , 1997 WL 412542 (9th Cir. WA). Case No. 96-35658.

WSP Mail Rules Upheld: Joseph Allen filed suit challenging various aspects of the mail policy at the Washington State Penitentiary. After filing suit Allen did no discovery and when the defendants moved for summary judgment he did not bother responding. Not surprisingly, the ...

BOP Porn Ban Held Unconstitutional

In the March, 1997, issue of PLN we reported the September 30, 1996, enactment of the "Ensign Amendment," named after its author Nevada congressman John Ensign (R). The law was enacted as a rider to the federal government's massive budget bill. No hearings or debate were held by congress nor was a committee report issued before the law was enacted.

In its entirety the Ensign Amendment states: "None of the funds made available in this act to the federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to a federal official having authority to obligate or expend such funds that such information is sexually explicit or features nudity." Pub. Law No. 104-208, § 614, 110 Stat. 3009 (Sep. 30, 1996).

At the time PLN predicted that the law would be struck down as unconstitutional. On August 12, 1997, U.S. district court judge Stanley Sporkin, in the District of Columbia, did just that, holding that the Ensign Amendment violated the first amendment. The suit was brought by three BOP prisoners, Joseph Amatel, Lee Moore and Daniel Levitan and three publisher plaintiffs, Playboy Enterprises ...

Struggle at Folsom

by W. Wisely

On August 11, 1997, almost 400 prisoners in California's New Folsom prison staged a one-day work strike to protest continuing elimination of privileges and programs. Six members of the Men's Advisory Committee were placed in administrative segregation, suspected of leading the strike.

"The [prisoners] were rather frustrated with things occurring to them in general," said Lt. Jay Schievelbein, a prison spokesperson. Schievelbein said the strike was apparently prompted by a statewide prison regulation prohibiting prisoners from wearing personal blue jeans, gray tee-shirts, and athletic shoes to visits. Prisoners are now forced to wear only state-issued denim pants, chambray shirts, and brown work boots.

Although seemingly inconsequential, this is just one of many restrictions the Department has imposed or plans including a ban on weigh-lifting, family visits, rehabilitation programs, vocational training, packages from home, and canteen.

"The [prisoners] in that facility have been a little bit uneasy with the taking of some of the things back from the prisoners," Schievelbein said. "This was a thing that broke the camel's back." The strike was the first known since a work stoppage by hundreds of prisoners at the maximum security prison in Lancaster, California, two years ago ...

Spanish Speaking Prisoners Entitled to Interpreters

In a wide ranging and extensive ruling a federal court in the District of Columbia held that by failing to provide interpreters to non English speaking Hispanic prisoners the DOC violated the plaintiffs' eighth and fourteenth amendment rights. As the first published ruling in a class action suit involving language discrimination against prisoners, this opinion warrants study by detention facility administrators as well as those who assist Limited English Proficiency (LEP) prisoners.

The DC DOC has about 9,000 prisoners in its custody, 188, or 2%, of whom are Hispanic. Eighty percent of the Hispanic prisoners have LEP and cannot function effectively in English on a daily basis. The number of Hispanic prisoners is expected to rise. The prisoners are spread out among eight prisons operated by the DC DOC. The prisoners claimed that they were not provided with interpreters for disciplinary parole and classification hearings; medical interviews; religious services; programs and educational classes or any other prison activity.

A 1991 study by the DOC identified substantial areas of liability involving LEP Latino prisoners and recommended remedial measures. Despite ample knowledge of its shortcomings in this area the DC DOC took no steps to resolve the problems until shortly before ...

Court Questions PLRA IFP Provisions

In a rare voice of dissent to the PLRA's filing fee provisions, Judge Reynolds of the U.S. district court in Wisconsin, described the filing fee requirements of the Prison Litigation Reform Act, then summed it up.

"This provision is mean spirited and unnecessary. In forma pauperis is fundamental to our nation's beliefs that justice is blind; that money is no prerequisite to access to the courts; that a litigant's claim -- not is social status determines how his cause will fare in the courts. To require prisoners to pay some sort of filing fee while non prisoner indigents pay nothing undermines these vital principles.... Finally, this new legislation forgets that in forma pauperis litigation has historically been a vital source of law enforcing, defining, and upholding the basic freedoms that define our nation.

"Certainly, many believe prisoner suits are out of control, and that this provision is a necessary response. Without it, the argument goes, prisoners have no incentive to refrain from bringing silly claims wholly without merit, as do other litigants. Identifying a problem, however, does not, in and of itself justify any solution, no matter how impractical, unjust, and counterproductive.

"On one hand, the filing ...

Attorney Fee Award in Smoking Suit Affirmed

The court of appeals for the eighth circuit affirmed an award of $11,299.17 in attorney fees to a prisoner who sued over being exposed to Environmental Tobacco Smoke (ETS, AKA second hand smoke). In the December, 1996, issue of PLN we reported Weaver v. Clarke , 933 F. Supp ...

Arizona Court Fee Law Upheld

Afederal district court in Arizona upheld the constitutionality of a state statute that requires prisoners to pay the full filing fee in state court actions they initiate. The Arizona legislature enacted A.R.S. § 12-306(c) and A.R.S. § 12-302(B) which eliminates the waiver of filing fees in all state court actions, except dissolution of marriage and child support cases, brought by state prisoners. Instead, prisoner plaintiffs must pay an initial filing fee of 20% of their prison trust fund account and 20% of their accounts monthly balance each month thereafter until the fee is paid in full. The Arizona statutes are almost identical to the filing fee provisions of the federal Prison Litigation Reform Act (PLRA). In a footnote the court observed that the PLRA was modeled on the Arizona statutes at issue in this lawsuit and both were drafted by Arizona Attorney General Grant Woods.

Arizona prisoners filed a class action lawsuit challenging the constitutionality of the Arizona laws, claiming they violated their right of access to the courts and equal protection of the law. The court rejected both claims.

The court held that because the statutes do not prevent prisoners actually filing a lawsuit, they ...

AZ Jail's Discriminatory Treatment of Muslims Requires Trial

The court of appeals for the ninth circuit held that a district court erred when it granted summary judgment to jail officials regarding claims of discriminatory treatment by a Muslim jail prisoner. Benjamin Freeman was held in the Maricopa county jail in Arizona for nine months. Freeman, a practicing Muslim, filed suit claiming he was prevented from attending weekly Jumah services. Freeman also claimed that only Muslim prisoners were shackled and handcuffed on their way to religious services, required to sign attendance sheets, be subjected to abusive slurs by jail officials and not given a 10-15 minute notice before services ended. Prisoners of other religious faiths were not subjected to these practices. The district court granted the defendants summary judgment and dismissed the suit.

The court of appeals affirmed in part, reversed in part and remanded. Freeman had originally filed suit under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, which was struck down as unconstitutional in City of Boerne v. Flores , 117 S.Ct. 2157 (1997)[ PLN , Sep. 1997]. The RFRA standard was more favorable to prisoner litigants.

The appeals court proceeded to analyze Freeman's claims under the pre-RFRA standard of O' Lone v. Estate ...

Slavery in South Carolina

What is the difference between a good slave and a bad slave? The South Carolina Department of Corrections (SCDC) knows: Good slaves "continue to work and stay out of trouble".

Below is the full text of a memorandum addressed to the South Carolina "inmate population" and signed by SCDC Director Michael W. Moore:
On January 20, 1998, changes will be made in inmate pay. You will continue to receive your inmate pay as long as you are working on a job. However, if you are in lock-up or unemployed on this date, you will not be paid for the rest of your sentence.

Any new inmate entering the South Carolina Department of Corrections after January 19, 1998, will not be paid.

On January 20, 1998, if you are a paid inmate, your pay will be frozen at your current pay. It will not increase after that date. However, if you are found guilty of a major disciplinary or criminal offense within SCDC, you will lose all of your pay for the rest of your time in prison.

Again, your current pay will not be affected as long as you continue to work and stay out of trouble. A new policy ...

Ohio Death Row Uprising

In the November '97 PLN , we reported "Tensions Rise in Ohio Prisons." Our coverage of the September 5, 1997 uprising on Ohio's death row at the Mansfield Correctional Institution (MANCI) was based entirely on published press reports, and as such was woefully inadequate. PLN has since obtained several first-hand accounts, which we report here.

At 5 p.m. on September 5 a prisoner working as a porter overpowered a guard and took his keys. That guard and two others working in the area then fled. All of the pod cell doors were opened using the guard's keys.

There are conflicting reports about what happened next. One source says he saw two prisoners beating a third. Another source said that "No one was doing anything" but just milling around and that guards could have come into the unit any time and peacefully regained control. Not much else happened for five hours.

Just before 10 p.m. about 60 highway patrol cops and 50 prison guards stormed death row. One prisoner says he looked through the window of his cell and saw men in gas masks. Then came a loud banging like the firing of shotguns. A tear gas canister ...

West Virginia Jailers Sentenced to Prison

Former Grant County, West Virginia, sheriff John Leatherman, 39, was sentenced October 14, 1997, to six years in the state penitentiary on a civil rights count and one year in the county jail on a battery count. Leatherman pleaded no contest in a case where female jail detainees were forced into sex acts with law enforcement officials.

A former Petersburg, Grant County, city police officer, Rodney Weister, 27, was sentenced the same day to five years in prison for raping one female detainee four times. After sentencing, Leatherman and Weister were put in the Grant County holding facility where, later that night, Weister reportedly tried to hang himself.

A third defendant, former Grant County jail guard Estes Sites, 23, pleaded guilty to a bribery charge and was given a 1-year suspended jail term and a $1,000 fine. Sites allegedly forced a woman in his custody to perform oral sex.

Weister had no official business at the jail, but sometimes went there when his friend Sites was working. He had been a Petersburg city policeman for about four months. According to state police investigators, Weister was hired despite a police record for public intoxication and several other misdemeanors.

The victims ...

Turning the Screws in California

by W. Wisely

Each year, the California Department of Corrections asks the Legislature for an ever-increasing piece of the state's tax pie based in part on claims that violence in the prison system is increasing. The truth is, violent incidents inside have been steadily declining the past decade, the legacy of incentives begun in the early 1970s. In the past few months the Department has quietly taken back many of those incentives. In what many believe is an attempt to spark violence inside in order to justify a bigger budget, the Department is turning the screws on California's 155,000 prisoners.

On October 16, 1997, Gregory Harding, Chief Deputy Director of the Department of Corrections, issued a notice of change to the state's administrative regulations governing prisoner grooming standards. Prisoncrats intend to turn the clock back more than twenty years by prohibiting male prisoners from having hair longer than three inches. Facial hair would be limited to a trimmed mustache, no more than one-quarter of an inch from the corner of the lips.

Female prisoners would be allowed hair any length, but they will have to wear it up above the collar. Females will not be allowed ...

Sixth Circuit Discusses Habeas IFP

The court of appeals for the sixth circuit has outlined the procedures habeas corpus petitioners seeking In Forma Pauperis (IFP) status must follow. Every circuit to consider this issue has held that the Prison Litigation Reform Act's (PLRA) filing fee provisions do not apply to indigent habeas corpus petitioners. Thus, habeas petitioners unable to pay the appeals court filing fee can seek leave to appeal without payment of the $105 filing fee under Fed.R.App.P. 24(a).

Habeas petitioners can seek a waiver of the filing fees in the district court under 28 U.S.C. § 1915(a)(1). "By exempting § 2254 and § 2255 [the federal habeas statutes in 28 U.S.C.] from the provisions of § 1915(b) and the three strikes provision of § 1915(g)... we provide a prisoner the ability to seek § 2254 and § 2255 relief as a pauper under § 1915(a)(1). This conclusion requires that the prisoner submit an affidavit of indigency in compliance with § 1915(a)(1). However, a prisoner is not required to file a trust account statement because the information contained in the trust account is only necessary for the payment formula of § 1915(b)... If the prisoner is ...

Tax Court Required to Assist in Witness Subpoena

The court of appeals for the ninth circuit held that a tax court's refusal to honor subpoenas filed by an indigent pro se prisoner litigant, without prepayment of the witness and mileage fees, violated the prisoner's right of access to the courts. Douglas Hadsell is an Oregon state prisoner. In 1992 the IRS commissioner assessed three notices of deficiency against Hadsell claiming that in three tax years he had failed to file timely tax returns and failed to pay the correct amount of taxes. The commissioner claimed Hadsell owed the IRS $13,000 in back taxes and penalties. Hadsell filed a petition in the U.S. Tax Court seeking a redetermination of the deficiencies and the court allowed him to proceed In Forma Pauperis (IFP).

The trial took place in the Oregon State Penitentiary's board room (Hadsell's tax problems appear completely unrelated to any criminal activity). Before trial Hadsell petitioned the tax court to waive the witness and mileage fees required by tax court rules and allow him to subpoena three witnesses without payment of the necessary fees as he was indigent as a result of his imprisonment. The court denied the request and none of ...

News in Brief

AZ : In November, 1997, the state DOC announced that the construction of a 4,150-bed prison complex at Gila Bend, a 200-bed juvenile prison at the same location and an 800-bed addition to a Yuma prison was $19 million over budget. The combined projects were supposed to cost $190.5 million but cost overruns have already added at least 10% to the initial estimate.

Brazil : On December 27, 1997, police shot and killed 9 unarmed prisoners that had surrendered after a botched hostage-taking escape attempt at the prison of Fortaleza.

Brazil : On December 30, 1997, prisoners at the Sorocaba prison seized 699 visitors as hostages after a botched escape attempt led to a shoot-out. The hostage-taking began when 15 prisoners dressed as women attempted to leave with visitors. Guards recognized the disguised prisoners and opened fire, killing an escapee and a woman visitor. The remaining escapees then took 699 visitors and 17 guards hostage. On January 1, 1998, the hostage-taking ended when riot police stormed the prison, injuring 4 policemen and 10 prisoners. Designed to hold 500 prisoners, Sorocaba held 900 at the time of the incident.

CA : On December 2, 1997, Mark Philyaw, a security guard jailed for outstanding ...

Ad Seg May Require Due Process

The court of appeals for the second circuit held that a district court wrongly concluded that administrative segregation (ad seg), in and of itself, does not violate due process. The court held prisoner plaintiffs must be given an opportunity to develop a factual record for their ad seg claims.

Emmeth Sealey is a New York state prisoner who was infracted for fighting, assault and weapons possession. At a disciplinary hearing Sealey was found not guilty but on the basis of confidential information he was placed in ad seg as an alleged threat to prison safety and security. Sealey was provided with an ad seg hearing where he requested, and was denied, witnesses. Sealey administratively appealed, and Donald Selsky, the NY DOCS director of special housing and prisoner discipline, reversed the finding and ordered a new hearing. Sealey was again sentenced to ad seg after which he filed suit claiming his right to due process was violated by the denial of witnesses. The district court dismissed the suit holding that under Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995) Sealey had no due process right not to be placed in ad seg. See: Sealey v. Giltner , 857 ...

Snitch Jacketing States 8th Amendment Claim

Afederal district court in New York held that a prison guard calling a prisoner a snitch with the intention of causing the prisoner harm by other prisoners states a claim for violation of the eighth amendment. Anthony Watson, a New York state prison, filed suit claiming a guard told prisoners he was a snitch, after which he was attacked by another prisoner and had his throat slashed while another guard looked on and did nothing.

The defendants moved to dismiss Watson's complaint, which the court granted in part and denied in part. The court dismissed, without prejudice, Watson's claims against the prison warden and captain, holding that Watson's letter of complaint to the warden about being called a snitch was insufficient to establish supervisory liability.

In Farmer v. Brennan ,511 U.S. 825, 114 S.Ct. 1970 (1994) [ PLN , July, 1994] the supreme court held prison officials can be held liable under the eighth amendment if they know a prisoner faces a substantial risk of harm and disregard that risk by failing to take reasonable measures to prevent it.

The court cites several judicial decisions recognizing "the serious implications of being labeled a snitch in prison." It ...

Supervisors Liable for Excessive Force

The court of appeals for the eighth circuit affirmed an award of compensatory and punitive damages against a guard who beat a handcuffed and unresisting prisoner, the four guards who held the prisoner down during the attack, the lieutenant who supervised the beating and the warden who had repeatedly ignored ...

Ohio Students Rally in DC

Students from Dayton Ohio's Colonel White High School were outraged when they read about Kemba Smith in Emerge magazine. Smith, a 24-year-old Virginia woman, was sentenced to 24 years in federal prison without the possibility of parole for refusing to cooperate with federal prosecutors who wanted her to testify against her drug-dealing boyfriend.

"Free Kemba! Free Kemba!" the students chanted on the steps of the U.S. capitol. They were joined by members of the Congressional Black Caucus, Kemba Smith's parents, Smith's 3-year-old son, and representatives of FAMM (Families Against Mandatory Minimums).

"Kemba's only crime," said high school junior Michelle Payn "was that she was blinded by love and thought that she couldn't turn the man she loved into the police when they wanted her to."

"We want her out of prison," said 16-year-old student D'Wan Taylor. "And we want to help other non-violent offenders that may be in the same predicament she's in.'

Source: The Marion Star ,Associated Press

Health Care Contractor Subject to Monell Liability

The court of appeals for the eleventh circuit held that private companies performing traditional government functions are liable under 42 U.S.C. § 1983 but enjoy the protection of Monell v. Dept. Of Social Services of New York , 436 U.S. 658, 98 S.Ct. 2018 (1978). Junior Buckner was a pretrial detainee in the Clayton county (GA) jail when he developed a psychological condition called "conversion reaction" that made him unable to walk. The jail contracted with a private company, Prison Health Services (PHS), to provide medical care. While PHS "treated" Buckner they did not diagnose his condition and it became permanent.

Buckner filed suit claiming that the county, sheriff and PHS were deliberately indifferent to his psychiatric medical needs. The district court granted the defendants summary judgment holding that under Monell a plaintiff must show the municipality itself injured the plaintiff by having a policy or practice which caused the plaintiff's injury. The court held Buckner had not shown the existence of any such injurious policy by either the county or PHS.

The court of appeals affirmed. This ruling is significant for anyone suing county or city governments over constitutional violations and, more importantly, any private companies ...

Evidence Must Support Disciplinary Ruling

Afederal district court in Indiana granted an Indiana state prisoner's petition for habeas corpus, finding that no evidence supported a disciplinary committee's "guilty" finding of possessing intoxicants. Timothy Hayes was infracted for possessing intoxicants after a guard found a bottle of an "orange substance" in Hayes' cell. The infracting guard claimed Hayes told him the substance was polyurethane he had obtained from the prison school.

At the hearing no physical evidence was presented, no evidence was presented proving the substance in question was an intoxicant and the bottle alleged to have contained the substance was not presented. The hearing officer found Hayes guilty as charged and revoked 90 days of good time credits and demoted his credit earning class. The finding was administratively affirmed and Hayes then filed a habeas corpus petition in federal court contending no evidence supported the decision. Indiana does not provide any state judicial review of prison infractions which is why Indiana prisoners file challenges directly in federal court.

The court noted Indiana prisoners have a due process liberty interest in their good time credits. In Superintendent v. Hill , 472 U.S. 445, 105 S.Ct. 2768 (1985) the supreme court held that reviewing ...

Survivors Manual

How do you survive in a concrete coffin?

With the proliferation of Control Unit (aka SuperMax) prisons in the U.S., an increasing number of prisoners struggle for an answer.

Survivors Manual is a 72-page paperback written by and for people who live in Control Units. The manual was compiled and edited by prisoner rights activists Bonnie Kerness and Holbrook Teter. Most of the material in the book is written by control unit prisoners who were asked to write about what things they do to survive in long-term isolation. Any prisoner, whether doing control unit time or otherwise, can benefit from reading the combined wisdom and experience of the manual's contributors.

The book is available from California Prison Focus (CPF) for $7 including shipping. CPF is a nonprofit group that functions as a watchdog of the California department of corrections, and promotes solidarity between prisoners and people on the outside.

CPF is a solid organization. They could use all of the support, financial and otherwise, that you can offer. For a copy of the Survivors Manual , send $7 to: California Prison Focus; 2469 Mission Street, #28; San Francisco, CA 94110.

Zain Fallout Continues

Fred Zain was a crime lab serologist, who tested evidence for the West Virginia state police from 1979 to 1989, and was chief of serology his last five years. During that time Zain falsified evidence and testified about the results of tests he never performed.

In 1989, Zain took a letter of recommendation from the West Virginia governor and headed to Texas, where he was named head of serology at the Baxter County medical examiner's office in San Antonio. Zain worked there until 1992 when his West Virginia shenanigans came to light. [See: "Fraudulent Police Chemist Flees Justice", PLN Vol. 5, No. 10]

An investigation was triggered by the case of West Virginian Glen Dale Woodall, whose 1987 rape convictions were overturned after DNA tests showed he could not have committed the crime for which he had already served five years. In 1993, the WV supreme court invalidated as many as 138 felony convictions because of evidence tainted or fabricated by Zain. Woodall was awarded $1 million for his false incarceration. William O'Dell Harris, also convicted by flawed testimony from Zain, was later awarded $1.8 million.

In October, 1997, West Virginian Gerald Wayne Davis settled for a ...

Failure to Protect Informant Violates 8th Amendment

The court of appeals for the third circuit held that prison informants have an eighth amendment right to be protected from the consequences of their informing and that a lower court erred in failing to appoint counsel. Jerome Hamilton is a Delaware state prisoner. Since at least 1976 he has been the subject of attacks by other prisoners, including stabbings and beatings, in one case he was assaulted and stabbed by an irate mob of 20 prisoners. Hamilton has spent a great deal of time in protective custody as well as stints in federal and Virginia prisons for his own protection.

The instant case arose in 1992 when a guard told other prisoners that Hamilton was "a good telling mother f*****g snitcher" for informing on a drug trafficking operation that led to the arrest of several prisoners and guards in 1986. Three months later a classification committee recommended that Hamilton's request for protective custody (PC) be granted. A review committee then decided to take no action. Two months later Hamilton was assaulted and suffered two jaw fractures. Hamilton filed suit claiming prison officials were deliberately indifferent to his right to safety under the eighth amendment. The district court ...

Class Action Certification Clarified

The court of appeals for the ninth circuit held that a district court erred when it dismissed as moot a jail detainee's lawsuit challenging conditions on a jail chain gang, before ruling on the plaintiff's motion for class certification. Timothy Wade filed a lawsuit seeking only injunctive relief challenging chain gang work conditions at the Washoe county jail in Nevada. While his motion for class certification was pending, Wade was moved to a different jail and the district court dismissed the suit as moot. The court of appeals reversed and remanded for a ruling on the class certification motion.

The court noted that the district court never really ruled on the class certification motion, it essentially postponed that ruling in order to decide the defendants' motion for summary judgment. The appeals court treated the class certification motion as outstanding at the time of Wade's transfer. The court held that Wade had standing to appeal even though his class certification motion was never decided by the lower court. The court noted it could not review a decision before it was made. Therefore, the case was remanded to the district court to decide the outstanding certification motion; whether Wade ...

New Jersey DOC Required to Follow Own Rules

The appellate division of the superior court of New jersey held that a prisoner was entitled to reversal of a disciplinary sanction because the prison hearing officer disobeyed a court ordered prison rule requiring the prisoner to sign a form documenting what procedures take place at disciplinary hearings.

Melvin Johnson is a New Jersey state prisoner. He was infracted for allegedly assaulting another prisoner. At his disciplinary hearing Johnson sought to question the alleged victim, who denied being assaulted, and the hearing officer refused. Johnson was found guilty and sentenced to 120 days in segregation and 120 days loss of good time. After exhausting his administrative remedies within the DOC Johnson appealed to the state appeals court, which reversed the guilty finding for a new hearing.

At the outset the court criticized the illegible handwriting of prison employees. "Preliminarily, we note that our review of this matter has been grossly hampered by the undecipherability of most of the record. The various statements and reports which comprise the record all consist primarily of handwritten materials. We have no difficulty reading Johnson's handwritten materials. But a combination of illegible handwriting and of reproductions which are either smudged or blurred have made ...

Pelican Bay $600,000 Wrongful Death Settlement

California taxpayers coughed up another $600,000 to settle a use-of-force lawsuit at Pelican Bay State Prison. The biggest chunk of the award goes to the family of Jesse Castillo, who was shot and killed by guards while engaged in a fistfight on Pelican Bay's "A" Yard.

"It was ...


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