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Prisoner Education Guide

Prison Legal News: April, 1998

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Volume 9, Number 4

In this issue:

  1. Rural Prison as Colonial Master (p 1)
  2. French Robertson Prisoner Wins Suit (p 3)
  3. Texas Warden Not Victim of Staff Assault (p 4)
  4. In Memory - Reverends Ernest Bromley and Maurice McCrackin (p 4)
  5. Mystery of Guard's Death Unlocked (p 4)
  6. From the Editor (p 4)
  7. Weights Banned in California (p 5)
  8. The Limits of the Law (p 5)
  9. Third Circuit Applies ADA to Prisoners; Supreme Court Grants Review (p 6)
  10. Even Nominal Damages May Justify Attorney Fee Award (p 6)
  11. $9,500 Award for Involuntary Psychotropic Drugging Affirmed (p 7)
  12. MA and WA Parole Suits Not Cognizable Under § 1983 (p 8)
  13. Folsom New Year's Riot Over Haircut Policy (p 9)
  14. Community Notification Upheld by Three Circuits (p 9)
  15. $1.1 Million Award in Sexual Assault (p 10)
  16. Failure to Protect Informant Claim Set for Trial (p 10)
  17. $225,000 Jury Award in CDC Shooting Affirmed (p 10)
  18. BOP Sentence Reductions Cannot Be Denied Based Upon Firearm Enhancements (p 11)
  19. BJS Reports Prison Litigation Statistics (p 11)
  20. PLRA Termination Provisions Constitutional (p 12)
  21. Prolonged SHU Confinement May Implicate Liberty Interest But No Damages (p 12)
  22. BOP Exceeds Statutory Authority in Denying Sentence Reduction (p 13)
  23. News in Brief (p 14)
  24. Pretrial Detainees Not Covered by FLSA (p 15)
  25. Damage Award and Attorney Fees in Censorship Suit Affirmed (p 16)
  26. U.S. Liable for Loss of Prisoner's Property (p 16)
  27. 4th Circuit Establishes Detainee Excessive Force Standard (p 17)
  28. PA DOC Not 'Victim' for Restitution Purposes (p 17)
  29. Heck Applied to Segregation Claims (p 18)
  30. No Immunity for Hearing Officer's Failure to Examine CI Credibility (p 19)
  31. No Immunity in Jail Suicide for Medical Contractor (p 19)
  32. $450,000 Award in Sexual Assault Case Not Excessive (p 20)
  33. 5th Cir. Holds IFP Dismissals Are With Prejudice (p 20)
  34. No Immunity for Smoke Exposure (p 20)
  35. Florida Prisoners Have Property Interest Under DOC Rules (p 21)
  36. Refusal to Waive Interest States Claim (p 21)
  37. Alaska Computer Printer Ban Questioned (p 22)
  38. Conditions in Camden County Jail Unconstitutional (p 22)

Rural Prison as Colonial Master

In 1964, a tsunami swept over Crescent City, California completely destroying the downtown. Only nine people died, but the town -- nestled just below the Oregon border -- never recovered. It was rebuilt as a shabby imitation of California's worst planning examples; empty parking spaces and box-like buildings dominate the landscape.

In 1985 another tsunami hit -- this time the tidal wave was political. The California Department of Corrections (CDC) rolled in, and with little opposition, built the sprawling, $277.5 million Pelican Bay State Prison, one of the newest, meanest super-max prisons in the system. Pelican Bay is now an international model of sensory deprivation and isolation; half the prisoners are deemed incorrigible and locked in their cells 23 hours-a-day. The prison is also Crescent City and Del Norte county's largest employer -- and, some say, its new colonial master.

The new prison has political clout which is all the more exaggerated due to Crescent City's extreme isolation and poverty. Only 4 of the area's 17 sawmills were still in operation when the prison arrived, commercial salmon fishing was dead, and during the mid-1980s, 164 businesses had gone under. By the time the CDC came scouting for a new ...

French Robertson Prisoner Wins Suit

On October 20, 1997, federal court jurors ruled that Texas prison guards assaulted French Robertson prisoner Andre Dunkins in 1996, but awarded no monetary damages.

Dunkins, who represented himself, convinced jurors that prison guards Ted Vinita and Robert Steele slapped him repeatedly July 17, 1996, while Sgts. Richard Aynes and Monte Baker watched. But jurors ruled that Dunkins suffered no injuries and awarded him no compensation. The verdict form revealed something was written and erased on the page concerning compensation before a zero was scribbled down.

Dunkins claimed that Sgt. Aynes accused him of being a snitch because he thought Dunkins had reported on guards for smoking in the unit, a violation of state rules. Dunkins also said that Steele repeatedly slapped him as Vinita "made it plain" that he would be killed if he filed a use of force grievance.

A prison spokesman reported that Dunkins signed a form during the grievance process saying he didn't want to pursue his claims. As a result, said the prison spokesman, an investigation of the guards was not pursued by prison officials.

Court observers were impressed by Dunkins' presentation and arguments in the case. He defeated two lawyers from the Texas ...

Texas Warden Not Victim of Staff Assault

Texas Warden not Victim of Staff Assault

In your July 1997 News in Brief section, you reported an incident on the French Robertson Unit [a Texas state prison near Abilene]. The News in Brief item erroneously stated that Ron Drewery [who you said is a prisoner] and another prisoner were victims of staff assault. I do not know the name of the other prisoner involved, but Ron Drewery was the warden at the time of the incident, not a prisoner. |Editor's reply: Ooops]
--   T.Q., French Robertson Unit

In Memory - Reverends Ernest Bromley and Maurice McCrackin

On December 18, 1997, Reverend Ernest Bromley passed away. Less than two weeks later, on December 30, 1997, Bromley's partner, comrade, and Brother, Reverend Maurice McKrackin ("Rev Mac" to all) followed him. Both had a long painful fight with cancer.

Ernest and Mac also both had a long history of activism in the Civil Rights struggle. Both were ardent war resistors who refused to pay taxes destined for the military. During the Persian Gulf War, while both were well into their eighties, they climbed the White House fence and put red dye into the fountain to signify spilled blood. Through their years of resistance they were jailed numerous times, and always refused to cooperate by withholding their names, often fasting until released from jail.

Both were active and supportive of prisoners' rights. Reverend Mac, legally blind and in a wheelchair, daily attended our federal civil trial in Knecht v. Collins , 903 F.Supp. 1193 ( SD OH 1995) [ PLN Vol. 7, No. 2], offering words of encouragement and his presence to give us strength.

We won that trial. But we have all lost two men known in their community and by those in the struggle as "Saints on Earth". If ...

Mystery of Guard's Death Unlocked

The guard who was murdered [during an escape attempt at the Wyoming state penitentiary in June 1997] was in a cage built for the "Shift Commander" when he was stabbed to death. The cage is made of brick, concrete, steel, and bullet-proof glass. HE DIDN'T LOCK THE DOOR! But the news media hasn't mentioned this fact once.

-- B.K., Wyoming

From the Editor

Greetings and welcome to another issue of PLN . If you haven't seen, ordered, or read a copy of The Celling of America (TCOA), well... you don't know what you're missing. It took a while, but I finally got my copy. I let my cellie read it and he quite literally couldn't put it down. He ordered copies to send to family and friends. Then he loaned the book to a guy down the tier, who came back later also wanting order forms. The same thing is happening all over: the multiplier effect.

Common Courage Press only printed 3,000 copies, thinking that would be a year's supply. But because we at PLN have put so much work into promoting the book -- and because it does a great job of promoting itself once people have seen it -- it looks like the book will go into a second printing soon.

Our first "live" promotion was in January at Modern Times Books in San Francisco. I thank the many PLN readers and supporters in the Bay Area who attended. Daniel Burton-Rose did a live reading and Paul Wright "appeared" via speaker phone, hosting a question/answer session. The ...

Weights Banned in California

by W. Wisely

On January 2, 1998, Gregory Harding, Chief Deputy Director of the California Department of Corrections, issued an Administrative Bulletin announcing the end of weightlifting in the free world's largest prison system.

The weightlifting ban includes prisons, Community Correctional Facilities, and camps. According to the bulletin, "[e]ffective February 2, 1998, recreational weight lifting activities are prohibited from all institutions/facilities operated by CDC.

Although weights will be banned, the new policy does not apply to dip bars, pull-up bars, or sit-up boards. The weightlifting equipment taken from prisoners will be used by guards, donated to local schools, or thrown away.

According to the bulletin, the ban will be incorporated into state administrative regulations at some unspecified future date. However, under California law, an agency may only add, amend, or repeal a regulation after publishing notice and holding a public hearing.

The ban on weightlifting will cost California taxpayers millions of additional dollars to take care of prisoners. As life prisoners age without the opportunity for weight bearing exercise, they will lose density in their long bones in addition to muscle mass. This combination will result in an increased risk of hip fractures. The cost for surgery ...

The Limits of the Law

Human law is law only by virtue of its accordance with right reason, and by this means it is clear that it flows from eternal law. In so far as it deviates from right reason it is called an unjust law; and in such a case, it is no law at all, but rather an assertion of violence.

St. Thomas Aquinas, Summa Theologiae (c. 1260)

It is tempting for many to regard the law as a thing that is almost sacred, as an expression of the highest secular thought. Courts of law bear a striking resemblance to churches of religion. Both are often situated in large, imposing, intimidating buildings. Both feature large center aisles to accommodate large masses of people. Both have raised places in the front; an altar in church, a bench in court. Both priests and judges wear large, flowing black robes.

Where one places a deity at the altar, the other places a being upon an elevated bench, who is said to possess god-like powers over life, liberty and property.

A church administrator is called "Reverend" or "Your Eminence"; a judge is addressed as "Your Honor." Yet while one may opt for faith in a church, faith ...

Third Circuit Applies ADA to Prisoners; Supreme Court Grants Review

The court of appeals for the third circuit held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, applies to state prisoners. The supreme court later granted review to decide whether the ADA applies to state prisoners. Ronald Yeskey is a Pennsylvania state prisoner who was denied admission to the DOC's Motivational Boot Camp Program due to a history of hypertension, despite his sentencing judge's recommendation that he enter the program. Yeskey filed suit claiming his exclusion from the program violated the ADA. The district court dismissed the suit under Fed.R.Civ.P. 12(b)(6), holding the ADA was inapplicable to state prisons. The court of appeals reversed and remanded.

At the outset the appeals court noted the importance of this issue in light of the growing number of older, disabled and HIV positive prisoners. The court gave a detailed discussion to the congressional intent behind enactment of the ADA, namely to eliminate discrimination against the disabled. The court noted ADA cases should be analyzed in conjunction with the Rehabilitation Act (RA), 29 U.S.C. § 794(a), which is a forerunner of the ADA, prohibiting discrimination against the disabled by entities receiving ...

Even Nominal Damages May Justify Attorney Fee Award

The court of appeals for the seventh circuit held that a verdict of only $500 did not, by itself, justify a denial of an attorney fee award, even though the suit broke no new ground in law regarding police abuses. Although not a prison case, the principles enunciated are applicable ...

$9,500 Award for Involuntary Psychotropic Drugging Affirmed

$9,500 Award for Involuntary Psychotropic Drugging Affirmed 

The court of appeals for the eighth circuit affirmed an award of $9,500 in damages to an Arkansas state prisoner who was forcibly drugged with anti-psychotic medications without due process. The court also held that the defendants were not entitled to ...

MA and WA Parole Suits Not Cognizable Under § 1983

The first and ninth circuit courts of appeal have applied Edwards v. Balisok , 117 S.Ct. 1584 (1997)[ PLN , July, 1997] to bar section 1983 actions challenging decisions by state parole boards, holding the § 1983 claims are not viable until or unless the underlying parole board decision has been overturned or reversed via habeas corpus proceedings.

The court of appeals for the ninth circuit held that a challenge to a parole board's reliance on false information to deny parole had to be brought as a habeas corpus action rather than as a 42 U.S.C. § 1983 action. Richard Butterfield is a Washington state prisoner. He filed suit under § 1983 seeking only money damages claiming members of the Indeterminate Sentence Review Board (ISRB) violated his right to due process by considering false information in his prison file in order to deny him parole. The district court dismissed the suit for failure to state a claim under Fed.R.Civ.P. 12(b)(6), holding the action was barred by Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364 (1994)[ PLN , Sep. 1994]. The appeals court affirmed.

Heck does not allow § 1983 actions which, if successful, would invalidate ...

Folsom New Year's Riot Over Haircut Policy

by W. Wisely

Over 1,000 prisoners at California's medium security Folsom prison threw flaming toilet paper and sheets over the tiers, banged cell doors, and refused to eat on New Year's Day in protest over new grooming restrictions the Department of Corrections plans to implement.

According to a Mexican-American man just released from the prison who was interviewed by the Sacramento Bee , only white prisoners participated in the protest. "They started to chant, 'No haircuts,'" said the man who refused to give his name. Prisoners at Folsom were told in September that the new grooming rules would take effect in February, prison spokesman Lt. Scott Moeszinger said.

"Massive and sudden changes can bring massive resistance," said Lance Corcoran, vice president of the prison guards' union. "I worked in the joints for 10 years and I've seen how things go. Once, inmates held a huge sit-down strike because they thought we'd been serving them pancakes too many days in a row."

At San Quentin prison, the men were concerned with slightly more weighty matters than breakfast. "We do have a little bit of life here, debased as it is, but there's stuff to do," said ...

Community Notification Upheld by Three Circuits

In the December, 1997, PLN we reported Doe v. Gregoire , 960 F. Supp. 1478 (WD WASH. 1997), wherein a district court ruled that Washington's "community notification" statute violates the ex post facto clause insofar as releasing information to the public regarding sex offenders whose convictions pre-dated the enactment of the community notification law. That ruling, however, has since been overturned in Russel v. Gregoire , 124 F3d 1079 (9th Cir. 1997). Similar community notification statutes (also known as "Megan's Law") have also been upheld by the 2nd and 3rd circuits.

By far, the lengthiest and most detailed ruling is E.B. v. Verniero , 119 F.3d 1077 (3rd Cir. 1997), which upheld New Jersey's. "Megan's Law" in a 50-page decision (including a 17-page dissent).

The Verniero court provides an exhaustive history and analysis of caselaw relating to the distinction between "remedial" and "punitive" exercises of state power. Anybody contemplating a challenge to a state's community notification law -- or interested in the shift in the balance between state law enforcement interests and individual rights -- should read this ruling.

The court upheld "Megan's Law" public notification of information about released sex offenders, saying that the NJ statute ...

$1.1 Million Award in Sexual Assault

The court of appeals for the fifth circuit held that recovery under the Texas Tort Claims Act is authorized for the negligent failure to prevent an intentional tort by a government employee. The court affirmed the judgment below and a $1.1 million damage award for the prisoner plaintiff.

In ...

Failure to Protect Informant Claim Set for Trial

A federal district court in Kansas held that disputed facts required a trial to resolve whether prison officials were deliberately indifferent to a prisoner's safety. Mark Dowling is a prisoner informant in Lansing, Kansas. On August 11, 1994, Lt. Gordon Brown received a note stating Dowling would be killed or injured by Dan Lyman, another prisoner, because he informed prison officials of Lyman's drug violations. Lyman was denied yard privileges and his cell was searched. Brown told oncoming shift supervisors of the threat and his actions. Lyman's cell was searched again and he was again denied yard access. The next day Lyman was interviewed and he denied the accusations in the note. Dowling was never told of the note and no other protective measures were taken.

On August 12, 1994, Lyman attacked Dowling with a razor knife, slashing his face and throat while a sergeant Dunn looked on. Lyman later confessed to writing the note. Dowling filed suit claiming prison officials violated his eighth amendment right to personal safety by failing to protect him from the attack. The court denied the defendants' motion for summary judgment, holding disputed material facts required a trial to resolve.

The court ...

$225,000 Jury Award in CDC Shooting Affirmed

The court of appeals for the ninth circuit affirmed a jury award of $225,000 to a prisoner shot by guards, who then received inadequate medical care. The court rejected the defendants' argument that the eleventh amendment barred the damage award. Todd Ashker, a California prisoner at the Pelican Bay ...

BOP Sentence Reductions Cannot Be Denied Based Upon Firearm Enhancements

The court of appeals for the third circuit held that the Federal Bureau of Prisons (BOP) cannot use a firearm enhancement under the Sentencing Guidelines, by itself, as the basis for declaring a prisoner ineligible for a statutorily authorized sentence reduction.

This case involved a federal prisoner serving time for conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. During his incarceration the prisoner completed the BOP's drug treatment program. Under 18 U.S.C. § 3621(e)(2)(B), the Violent Crime Control and Law Enforcement Act of 1994, the prisoner should be entitled to a sentence reduction of up to one year for completing the program. However, the BOP ruled the prisoner ineligible for the reduction because his sentence included a two level enhancement as a result of a firearm that was found at his vacation home by one of the arresting officers. The prisoner petitioned a district court, pursuant to 28 U.S.C. § 2241, for a writ of habeas corpus compelling his early release, but the trial court denied relief.

By its plain language, the benefits of § 3621(e)(2)(B) clearly apply exclusively to prisoners "convicted of [ ] nonviolent offense[s ...

BJS Reports Prison Litigation Statistics

The Bureau of Justice Statistics (BJS) released the report Prisoner Petitions in the Federal Courts, 1980-96 in October, 1997. According to the report, the rate at which state and federal prisoners filed petitions in U.S. district courts (habeas and section 1983 petitions combined) fell 17 percent between 1980 and 1996, the year Clinton signed the Prison Litigation Reform Act (PLRA). Although the total number of filings grew from 23,230 in 1980 to 68,235 in 1996, the rate decreased from 72.7 per 1,000 prisoners to 60.5 per 1,000 prisoners during the 16-year period.

The BJS analysis of prisoner petitions shows the number filed per 1,000 prisoners during 1995 to vary substantially from state to state -- ranging from highs of 149 petitions per 1,000 prisoners in Iowa, 142 in Arkansas and 125 in Mississippi, to lows of 20 per 1,000 in Massachusetts, 22 in North Dakota and 25 in Ohio.

Prisoner civil rights filings declined nationwide by nearly 10 percent to 38,252 in 1996 from 42,144 in 1995. The decline continued in the first quarter of 1997, when prisoner civil rights filings fell to fewer than 7,000, which sets ...

PLRA Termination Provisions Constitutional

The court of appeals for the eighth circuit held that the "immediate termination" provisions of the Prison Litigation Reform Act (PLRA) does not violate the separation of powers doctrine, the due process clause, or equal protection. A contrary finding by an Iowa district court was reversed.

In 1978 Iowa state prisoners brought a class action challenging the constitutionality of the conditions of their confinement. Six years later the parties reached a settlement, which was supplemented in 1988. This settlement was characterized by the parties as a consent decree.

On April 26, 1996, the PLRA became law. Section 802(a) of the act, codified as 18 U.S.C. § 3626, allows for the immediate termination of prospective relief in existing settlements involving prison conditions, and limits any future prospective relief to the constitutional minimum. Three weeks after enactment of the PLRA, Iowa moved to terminate the Iowa settlement. However, the trial court denied the state relief, holding that the immediate termination provisions of the PLRA violates the principle of separation of powers by requiring federal judges to reopen final judgments.

On appeal the prisoners argued that § 3626 represents a congressional effort to reopen final judgments of Article III courts, and that ...

Prolonged SHU Confinement May Implicate Liberty Interest But No Damages

A federal court in New York held that periods of confinement in a state Department of Correctional Services' special housing unit (SHU) for periods of 12 months or longer may implicate liberty interests requiring procedural due process protections. The court also held that the Prison Litigation Reform Act (PLRA) precludes damages for mental anguish for illegal confinement in an SHU, limiting any award to a nominal amount.

This case began when two DOCS prisoners were involved in an altercation with another prisoner. As a result, the prisoners were charged with unspecified offenses, given individual Tier III disciplinary hearings, and punished with 12 months loss of good time each, plus 15 and 12 months, respectively, in SHU confinement. This punishment included a concomitant loss of privileges.

The prisoners challenged the validity of their initial hearings through the administrative process because they were denied the right to call witnesses. The results were eventually reversed, but after rehearings the same punishment was imposed. Without challenging the second convictions administratively, the prisoners brought a 42 U.S.C. § 1983 civil rights claim against the prison officials involved, alleging due process violations with respect to both the initial and subsequent rehearings, and the defendants moved ...

BOP Exceeds Statutory Authority in Denying Sentence Reduction

Afederal district court in the District of Columbia held that the Bureau of Prisons (BOP) had exceeded its statutory authority by defining "violent" offenses to preclude a sentence reduction for convictions the courts have consistently defined as "non-violent." In 1994 congress enacted 18 U.S.C. § 3621(e)(2)B) which states: "The period a prisoner convicted of a non violent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." [ PLN , Dec. 1994]

In implementing this statute the BOP issued Program Statement 5162.02 which defined as "violent" offenses numerous crimes that are statutorily and judicially defined as non violent. Several courts have held the BOP exceeded its statutory authority in promulgating P.S. 5162.02. See: Downey v. Crabtree , 100 F.3d 662 (9th Cir. 1996)[ PLN, May, 1997].

William Miller was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Miller completed the BOP's drug treatment program but was denied the one year sentence reduction because in PS 5162.02 ...

News in Brief

Brazil: On January 10, 1998, eight prisoners at the Linhares prison in Espirito Santo state were killed in a brawl. Francisco Assis Rangel, the prison operations chief, said "They killed one another with metal bars and pieces of wood." No details were given as to the cause of the brawl.

Columbia: On January 11, 1998, hundreds of prisoners at the San Isidro prison in Popayan took 567 visitors hostage to protest inhumane conditions at the prison. The prisoners demanded better health care; a mattress for each prisoner; potable drinking water and education facilities. The siege ended on January 13 when the government agreed to meet the prisoners' demands.

GA: On December 27, 1997, private prison guards William Rogers and Matthew Joyner were arrested in Dalton and charged with drunk driving and filing a false report that prisoners in their care had escaped. Employed by Federal Extradition Transportation of Memphis, TN, the guards were escorting nine prisoners from Memphis to Georgia, the guards began drinking and fighting in the van. During the argument Rogers pushed Joyner out of the van. Joyner then told police the prisoners had overpowered the guards and hijacked the van with one guard held hostage. Police found ...

Pretrial Detainees Not Covered by FLSA

Pretrial Detainees Not Covered By FLSA

The court of appeals for the eleventh circuit held that pretrial detainees who perform services at the direction of jail officials for the benefit of the facility are not covered by the federal Fair Labor Standards Act (FLSA), 28 U.S.C. §§ 201-219. This decision was based primarily on the theory that pretrial detainees are not "employees" under the FLSA. The court also concluded that such "forced" labor did not violate the Eighth Amendment to the U.S. Constitution.

This action was brought under the FLSA and 42 U.S.C. § 1983 by Frutoso Villarreal who was required by the sheriff of Gadsden County (Florida) to perform translation services, while he was a detainee in the county jail. Villarreal also claimed that because the sheriff had promised to "compensate him" for his services, but failed to do so, that the compelled performance constituted cruel and unusual punishment. The district court dismissed all claims.

The appellate court began its analysis with the premise that the purpose of the FLSA is to eliminate conditions detrimental to the minimum living standards of workers. After examining the FLSA definitions of "employee," "employer" and "employed," the court noted that ...

Damage Award and Attorney Fees in Censorship Suit Affirmed

The court of appeals for the eighth circuit affirmed a district court ruling awarding a prisoner $1 in damages and $500 in punitive damages against prison officials who censored racist religious publications pursuant to a "blanket ban" on such materials. The court also awarded the plaintiff $4,971 in attorney ...

U.S. Liable for Loss of Prisoner's Property

Afederal district court in Kansas held that federal prisoners can properly seek damages for the negligent loss of their property by prison employees pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671, et seq. Warren Melvin, a federal prisoner was moving to a different cell when he was called to work. Melvin left some of his property in his old cell and told a prison guard to lock the cell until he returned. The guard said he would, but opened the cell at dinner during which time Melvin's property was stolen. Melvin filed an administrative tort claim for $226.30 in compensation for his stolen property, which was denied. Melvin then filed an FTCA action in federal court.

The government admitted it would be liable for the loss of Melvin's property if the loss resulted from the negligent or wrongful acts or omissions of prison employees acting within the scope of their employment. But, the government argued Melvin's claim should be dismissed because Kansas bailment law imposes no duty on prison officials to safeguard prisoners' personal property. The case arose at the U.S. penitentiary at Levanworth, Kansas, which is why ...

4th Circuit Establishes Detainee Excessive Force Standard

The court of appeals for the fourth circuit, sitting en bane, held that the constitution does not prohibit the police from slapping pretrial detainees or inserting pens in their noses, while threatening to "rip it open," provided there is no sign of injury.

Initially, a district court granted summary judgment for the police on the theory that at most the pretrial detainee has suffered only de minimis injury as a result of being slapped and otherwise abused during the booking process. However, a divided panel of the fourth circuit reversed and remanded for trial. Riley v. Dorton , 93 F.3d 113 (1996). The panel reasoned, and the cops' counsel acknowledged at oral argument, that the use of force was motivated solely as punishment in response to a single verbal insult. Chief Judge Wilkinson dissented.

On rehearing en bane Wilkinson prevailed, holding "that the purely de minimis level of injury alleged by this inveterate malcontent does not constitute the kind of excessive force amounting to punishment."

The detainee was well represented on appeal by the Georgetown University Law Center. Amici curiae briefs were filed and oral argument presented in support of the cop by the Virginia DOC and the Virginia Sheriffs ...

PA DOC Not 'Victim' for Restitution Purposes

A Pennsylvania court of appeals held that the DOC was not a "victim" for restitution purposes and that prison expenditures on health care for a murdered prisoner were not compensation reimbursable to the DOC under a restitution statute. Three Pennsylvania state prisoners pleaded guilty to involuntary manslaughter and assault charges after a prisoner they had attacked died. As part of their criminal judgment and sentence the court of common pleas ordered the prisoners to pay $51,314 in restitution to the DOC to compensate for the hospital and medical expenses the DOC incurred in treating the victim for five days between when the assault occurred and when he died. The appeals court vacated the restitution order.

18 PA.C.S. Section 1106(c)(1) imposes mandatory restitution to the victim, the state crime victim compensation board and any government agency that provides reimbursement to a victim as a result of the defendant's criminal conduct. In Commonwealth v. Runion , 541 PA 202, 662 A.2d 617 (1995) the Pennsylvania supreme court construed section 1106's definition of "victim" to exclude "The coverage of restitution to all government agencies required to provide services to victims."

In this case the appeals court ...

Heck Applied to Segregation Claims

The court of appeals for the seventh circuit held that a prisoner's claim that his due process rights were violated at a prison disciplinary hearing was not cognizable under 42 U.S.C. § 1983 and had to be brought as a habeas corpus challenge, even though no good time credits were at issue. In the June, 1996, issue of PLN we reported Stone-Bey v. Barnes , 913 F. Supp. 1226 (ND IN 1996) where the district court dismissed the plaintiff's claims that he was denied due process at a disciplinary hearing because he could not show that his sentence of one year in segregation constituted an "atypical and significant hardship" under Sandin v. Connor , 115 S. Ct. 2293 (1995).

Lorenzo Stone-Bey is an Indiana state prisoner who was infracted for threatening prisoner Raymond Bowens if Bowens did not pay off a $75 marijuana debt. Bowens apparently reported the threat to prison officials who commenced disciplinary proceedings against Stone-Bey. Stone-Bey was found guilty, sentenced to one year in disciplinary segregation and, after administrative appeals failed, filed suit in federal court under 42 U.S.C. § 1983. He claimed that hearing office John Barnes violated his right to due process because ...

No Immunity for Hearing Officer's Failure to Examine CI Credibility

Afederal district court in New York held that prison officials violated a prisoner's due process rights by failing to independently examine the credibility of confidential informants. The court held these rights were well established, therefore the defendants were not entitled to qualified immunity. Juan Gomez is a New York state prisoner who was infracted for stabbing another prisoner based on testimony from a confidential informant. At his hearing Gomez denied any misconduct, claiming he was confined to his cell at the time the stabbing occurred. Gomez requested the testimony of several prisoners, a prison nurse, the victim and the informant who had named him as the attacker. These requests were denied and Gomez was found guilty.

Gomez filed suit under 42 U.S.C. § 1983 claiming the denial of his witness requests violated his right to due process. On the parties' cross motions for summary judgment the court ruled in Gomez's favor. The court relied on Richardson v. Selsky , 5 F.3d 616 (2nd Cir. 1993) to hold that disciplinary hearing officers are obligated to "independently examine the credibility of the confidential informants." In Richardson the second circuit held the defendants were entitled to qualified immunity because this ...

No Immunity in Jail Suicide for Medical Contractor

Afederal district court in Florida held that genuine issues of fact existed as to whether a jail psychologist and the private corporation that employed him had acted with deliberate indifference to a pretrial detainee's health needs, obviating summary judgment on the basis of qualified immunity. The court further held that the county sheriff had a non-delegable duty to provide care, precluding his entitlement to qualified immunity.

In November 1993, Mark Douglas was booked into the Collier County jail awaiting trial. As a result of the jail's initial screening process the jail psychologist, Jeff Schultz, an employee of Correctional Medical Service (CMS), a private corporation under contract to the county sheriff, placed Douglas on "strict suicide precaution." Three days later, however, Schultz removed Douglas from the suicide watch and placed him in a general population cell.

Although Schultz was titled and employed by CMS as a clinical psychologist, he possessed only a master's degree in psychology, plus he was unlicensed. At no time was Douglas examined by or even referred to a psychologist or other licensed mental health professional. Expert deposition testimony revealed that Schultz was unqualified to diagnose Douglas, and he should have been referred to someone ...

$450,000 Award in Sexual Assault Case Not Excessive

The court of appeals for the second circuit held that a $250,000 compensatory damage award against a county jail security director for sexually abusing a prisoner was not excessive. However, the court held that the $500,000 punitive damage award was, reducing it to $200,000.

The factual background ...

5th Cir. Holds IFP Dismissals Are With Prejudice

5th Cir. Holds IFP Dismissals are With Prejudice

The court of appeals for the fifth circuit, en banc, held that cases dismissed under 28 U.S.C. § 1915, the In Forma Pauperis (IFP) statute will now be considered to be with prejudice, so the suit cannot be refiled even if the prisoner pays the filing fee. Despite the Prison Litigation Reform Act (PLRA), the fifth circuit expressed its displeasure at its "continually burgeoning prisoner pro se docket." It apparently decided to clear out some of that docket.

Sidney Marts, a Louisiana state prisoner, was denied IFP status when he tried to sue a prosecutor and other court officials. The district court dismissed the various claims as frivolous, but without prejudice, allowing Marts to refile the suit if he paid the filing fee. A panel for the fifth circuit affirmed the ruling at 68 F.3d 134 (5th Cir. 1995) and a rehearing en banc was granted to reconcile conflicting circuit precedents.

The court noted that IFP dismissals are unique in that they are not a dismissal on the merits but instead a denial of IFP status. While denial of IFP status affects later IFP refilings of the same suit "they ...

No Immunity for Smoke Exposure

The court of appeals for the fifth circuit held that prison officials were not entitled to qualified immunity for exposing a prisoner to Environmental Tobacco Smoke (ETS, AKA second hand smoke). Raymond Rochon, a Louisiana state prisoner, filed suit claiming various prison, state and city officials had violated his eighth amendment rights by requiring him to live and work "in environments filled with tobacco smoke" since the beginning of his incarceration in 1981. Rochon claimed that even if he had not been harmed by the ETS yet, the smoke posed a threat to his future health. The district court dismissed the lawsuit under Fed.R.Civ.P. 12(b)(6), finding the defendants were entitled to qualified immunity.

In a brief ruling, the court of appeals affirmed in part, vacated and remanded in part. The court affirmed dismissal of the state and city official defendants but vacated the dismissal of the prison official defendants.

The court noted that in Helling v. McKinney , 509 U.S. 25, 113 S.Ct. 2475 (1993) [ PLN , Sep. 1993] the supreme court had held that exposing non smoking prisoners to ETS states a cause of action under the eighth amendment. "Rochon has alleged that he ...

Florida Prisoners Have Property Interest Under DOC Rules

A Florida appellate court held that Title 33 of the Florida Administrative Code, the rules of the Florida Department of Corrections (DOC), affords Florida state prisoners a vested right to possess property insofar as the property was authorized and the prisoner has storage space available to contain it. A circuit court order summarily dismissing a prisoner's petition for a writ of mandamus, seeking to compel the return of his property, was reversed with directions to issue an order to show cause why the writ should not be issued.

In 1994 Rex Tweed was transferred from Baker Correctional Institution to Marion Correctional Institution. Upon his arrival at Marion the prison property officer seized Tweed's General Electric Super II radio. Although Tweed received the radio through an approved DOC package permit, and he had possessed it within the prison system for several years, the DOC refused to order Tweed's radio returned.

After exhausting his administrative remedies through the DOC grievance farce, Tweed petitioned the circuit court in Marion County for mandamus relief, compelling the return of his property. However, the trial judge, Carven D. Angel, dismissed Tweed's petition out of hand, without even eliciting a response from the ...

Refusal to Waive Interest States Claim

The court of appeals for the ninth circuit held that a district court erred when it dismissed a prisoner's claim that he was fired from his prison job when he refused to waive his right to interest accruing to his prison trust fund account. Leonard Vignolo is a Nevada state prisoner earning $20 a month as a law library clerk. Until early 1994 prisoners earning more than $18 a week were required to sign a "fiscal agreement" that described how the prison would credit wages to prisoner accounts, taxes, cost of captivity, prison construction and a victim compensation fund.

In 1993 the ninth circuit decided Tellis v. Godinez , 5 F.3d 1314 (9th Cir. 1993) [ PLN , Feb. 1994] which held that Nevada prisoners had a property interest, protected by the due process clause, to any interest earned on their prison trust fund accounts. The court relied on Nevada Revised Statutes (NRS) § 209.241 and Webbs Fabulous Pharmacies v. Beckwith , 449 U.S. 155, 101 S.Ct. 446 (1980) in reaching its decision.

After Tellis was decided, the Nevada DOC revised its "fiscal agreement" in order to authorize deductions from prisoner trust accounts for several new items. It also required ...

Alaska Computer Printer Ban Questioned

The supreme court of Alaska held that a state superior court wrongly granted summary judgment to prison officials in a lawsuit challenging a ban on computer printers in the prisoners' cells. Geoffrey Mathis is an Alaska state prisoner. In 1993 prison officials issued a policy that permitted prisoners to possess laptop computers in their cells but prohibited printers, memory typewriters, word processors, scanners and modems. The rationale for this policy was a stated desire by prison officials to stop the filing of "frivolous litigation" by prisoners. Among the other "reasons" cited by the defendants was a belief that prisoners could maintain escape plans, secret files and the addresses of staff members and victims on their computers. [The same claims were made in 1989 by then Washington Division of Prisons Director Larry Kincheloe when he eliminated computers from Washington prisons and severely limited the availability of memory typewriters, etc. The so called security claims were shown to be false in state senate hearings on the matter. See: PLN , December, 1996 and June, 1993.]

After the printer ban was announced Mathis filed suit in superior court, where it was dismissed on summary judgment. The supreme court reversed in part, affirmed in part ...

Conditions in Camden County Jail Unconstitutional

In 1992 and 1993 numerous' present and former CCJ prisoners filed civil rights complaints in federal court alleging an assortment of constitutional violations. Because the issues mirrored those involved in Camden County Jail Inmates v. Parker , 123 F.R.D. 490 (DNJ 1988), a class action that was ongoing at the time, the instant individual actions were stayed. When Parker was finally settled in late 1994, these 43 individual actions were consolidated (class certification was denied), and the defendants moved for summary judgment on the theory that the facts failed to support the claims.

The conditions in the jail were substantially attributable to the New Jersey practice of stockpiling convicted felons in the-county jails because the state prison system was filled well above capacity. Consequently, the plaintiffs consisted of convicts sentenced to prison time, convicts serving county jail time, and pretrial detainees. Because of this blend the court analyzed the prisoners' conditions of confinement claims under both the eighth (convicts) and fourteenth (detainees) amendments. The standards, however, are indistinguishable.

Under either amendment, all conditions of confinement claims have two distinct components. The first element involves a determination of the objective reasonableness of the conditions, i.e., whether the conditions in ...


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