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Prison Legal News: April, 1998

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...