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Prisoner Education Guide

Prison Legal News: May, 1998

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Volume 9, Number 5

In this issue:

  1. Oregon's Prison Slavocracy (p 1)
  2. Slaves-R-Us Corporate Partners Wanted (p 3)
  3. Profits First! Convict Labor in America, book: Twice the Work of Free Labor (Book Review) (p 4)
  4. Book Reviews (p 4)
  5. From the Editor (p 4)
  6. Profits First! Convict Labor in America, book: Worse than Slavery, D. Oshinsky (p 4)
  7. WA County Launches Slave Labor Center (p 6)
  8. Jailhouse Travel Agents (p 6)
  9. Notes from the Unrepenitentiary (p 7)
  10. Work Strike Suppressed and Sabotaged in Ohio (p 8)
  11. Texas Prison Labor Union (p 9)
  12. CURE-Ohio and the Aftermath (p 9)
  13. Prior Dismissals Count as Strikes (p 10)
  14. Bad Faith Appeals (p 10)
  15. Fee Required in Voluntary Dismissal (p 10)
  16. Grievance Exhaustion Required (p 10)
  17. Physical Injury Limit Defined, Wrongly (p 10)
  18. Tenth Cir. Upholds IFP Provisions (p 10)
  19. No Ex Post Facto Violation in Permanent Loss of Forfeited Good Time (p 11)
  20. Alaska Classification Subject to Court Review (p 11)
  21. DC Women Prisoners' Suit Settled (p 12)
  22. Deliberate Indifference Applies to Detainees (p 12)
  23. Louisiana DOC Defiance Rule Unconsitutional (p 13)
  24. Prison Jobs and Free World Unemployment (p 14)
  25. Unicor Steals Glove Business From Private Firms (p 14)
  26. Union Reverses Position on Private Prisons (p 15)
  27. New Jersey Mental Health Class Action Gains Momentum (p 16)
  28. Fact Finding Required in Disciplinary Suits (p 17)
  29. Prison Phones Discussed (p 18)
  30. $60,000 Judgement Against Florida DOC Reinstated (p 18)
  31. Jury Verdict Affirmed in Arkansas Prisoner Attack (p 19)
  32. No Federal Remedy for False Disciplinary Charges (p 19)
  33. Fact Dispute Bars Qualified Immunity Appeal (p 20)
  34. Florida Finally Learns the Meaning of Ex Post Facto (p 20)
  35. Florida Prisoners Have Right to Present Evidence at Disciplinary Hearings (p 21)
  36. Delay of Dental Service Violates 8th Amendment (p 21)
  37. Michigan Visiting Restrictions Upheld (p 22)
  38. Delay in Treatment for Jail Prisoner Actionable (p 22)
  39. Denial of Counsel Reversed (p 23)
  40. Law on Strip Searches of Prison Visitors Clearly Established (p 23)
  41. News in Brief (p 24)
  42. AZ Prisoners Have Right to Attend Paternity Hearings (p 25)
  43. Prison Disciplinary Proceedings Cognizable Under § 1983 in Florida (p 25)

Oregon's Prison Slavocracy

What I propose is, that as we embark on this massive prison construction program, we try a new approach -- convert our "warehouses" into factories with fences around them. To do that we must change our thinking and change the reactionary statutes that stand in the way. I believe the American people are ready to do that. -- Supreme Court Chief Justice Warren Burger, 1981

Arbeit Macht Frei [Work Makes One Free] -- Inscribed above the entrance to Auschwitz

In 1994 Oregon voters approved two "Get Tough" voter initiatives. The first, Measure 11, altered Oregon's criminal sentencing statutes. As a result, most crimes now carry lengthy mandatory sentences -- no probation, no early release for good behavior, no parole.

The second initiative, Measure 17, was concerned with making prisoners work in prison factories. Oregon citizens were concerned about the increasing costs of prisons and by the distorted media image they had of prisoners lounging in elegant surroundings, watching color TV's and "pumping iron" with free room, board and medical care.

Measure 17 sought to alter the Oregon Constitution, and though the measure itself was fairly lengthy, at the polling booth it was succinctly worded:

QUESTION: Shall constitution require state prison inmates to ...

Slaves-R-Us Corporate Partners Wanted

[The following "Marketing Focus" fax from the Oregon Department of Corrections found its way to PLN , the full text of which is reproduced here.]

Prime land, buildings, and labor available to nursery industry.

Nursery products-related individuals and business interested in expanding operations through public-private partnerships are sought by the Oregon Department of Corrections. All partnership proposals will be considered -- ideas are limited only by your imagination and your ability to carry out a successful enterprise.

We provide:

Prime Willamette Valley farmland close to Salem with easy freeway access (all or parts of more than 1,000 acres are available).

Buildings (barns, potting areas, greenhouses, shipping facilities, etc.; also propagation and hot room facilities and labor at correctional institutions around the state).

Minimum-security inmate labor and security correctional officers.

Enthusiasm, energy, and stability.

Benefits to you:

Inmates show up each day clean, sober, and ready to work.

No Immigration and Naturalization Service issues.

You save money (including workers' comp., insurance, sick leave, and other benefit costs).

Benefits to Oregon

Your partnership with Inmate Work Programs helps us comply with Measure 17's mandate that all inmates must work at least as hard as the taxpayers who support them.

You also provide ...

Profits First! Convict Labor in America, book: Twice the Work of Free Labor (Book Review)

A. Lichtenstein

The United States, in the throes of a vicious social war against the poor, is poised on the brink of dismantling New Deal legislative prohibitions such as the Ashurst-Sumners Act which made the interstate transport of prison-made goods a felony offense. [In 63 years, not one person has been prosecuted under the Act!] Today's convict laborers package items like Microsoft Windows 95 and Starbucks Coffee. They build cars, make waterbeds, assemble circuit boards for nuclear power plants and are deployed to help break strikes.

In fact, labor journals are reporting that employers in Wisconsin and Texas are beginning to close factories that employ free labor only to reopen in prisons with convict workforces shortly thereafter. Convict labor has once again become an issue that we must energetically address.

Alex Lichtenstein's Twice the Work of Free Labor seeks to place the institution of convict labor at the intersection of post-Civil War class relations, industrial capitalism, and the U.S. South's road to modernization. Lichtenstein argues that the traditional image of the chain gang at work on the prison plantation must be broadened to encompass the role that predominantly African-American convict laborers played in building the South ...

Book Reviews

Profits First! Convict Labor in America

Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (London and New York: Verso, 1996).

Matthew J. Mancini, One Dies Get Another: Convict Leasing in the American South (Columbia S.C.: University of South Carolina Press, 1996).

David M. Oshinsky, 'Worse than Slavery': Parchman Farm and the Ordeal of Jim Crow Justice (New York: The Free Press, 1996).

These books are a part of an exciting renaissance of convict labor studies that come at an enormously critical moment in the history of prison "reform..' Internationally, the growth of prison labor is gaining momentum and support daily. It is claimed for example, that China, aided by direct foreign investment, employs between ten to twenty million prisoners in its enormously profitable commercial export enterprises.

The United States, in the throes of a vicious social war against the poor, is poised on the brink of dismantling New Deal legislative prohibitions such as the Ashurst-Sumners Act which made the interstate transport of prison-made goods a felony offense. [In 63 years, not one person has been prosecuted under the Act!] Today's convict laborers package items like Microsoft Windows 95 ...

From the Editor

Welcome to the eighth anniversary issue of PLN . This issue marks eight continuous years of monthly publishing, and in August we'll publish our 100th issue. This is an enormous accomplishment when one considers that the bulk of prison and alternative publications measure their existence in single digits as far as published issues go. Our evolution has been one of steady growth, from when we first started in May, 1990, as a hand typed, 10 page Xeroxed newsletter sent to 75 people. Some things haven't changed, like the ongoing censorship struggles around the country, which we've generally won.

While most readers are familiar with Dan and myself as the editors, PLN wouldn't be possible if it weren't for the dedicated support and assistance provided by a core group of volunteers, not just now, but over the past eight years. PLN is and has been very much of a collective enterprise. We would like to thank Fred, Rollin, Sandy, Allan, Jimmy, Ellen, Matt, Curtis, Dan A and Dan T, Daniel, Wes, George and all the other people that have volunteered their time and services to PLN . We would like to thank the organizations that have supported PLN ...

Profits First! Convict Labor in America, book: Worse than Slavery, D. Oshinsky

In Worse than Slavery, David Oshinsky writes about a world of forced toil with which we are more familiar: the great agricultural slave labor camp of Parchman Farm in the Mississippi Delta. Actually, Oshinsky's canvas is much wider than Parchman itself. Indeed, he seeks to provide the reader with a historical explanation for the rise of convict labor that stretches back into the history of antebellum Mississippi.

The imposition of white supremacy and the end of Reconstruction in 1876, ushered in the convict labor system in Mississippi. "Reedemer" legislators the new fiscally-conservative lords of a one-party state were not particularly interested in reforming prisoners. Oshinsky notes that "They knew white taxpayers would never fund an expensive penitentiary whatever their worries about crime."

White supremacy in Mississippi meant all-white juries. Furthermore, "Blacks were rarely represented by counsel, and their testimony was often restricted to cases in which whites were not directly involved." Court fees were exorbitant and non-payment guilty or not meant a prison term. Oshinsky thus makes clear the connections between disenfranchisement, the onset of segregation, and the system of criminal "justice" for African Americans.

WA County Launches Slave Labor Center

Construction crews were hard at work in February, l998, pounding nails, framing walls and stirring Spackle to remodel a building adjacent to the Whatcom County (WA) Courthouse. Pictured on the front page of the Bellingham Herald , they looked like any typical hard-working bunch of all-American construction workers -- except they weren't.

They're county residents who were sentenced to jail or fines and are considered low security risks. Instead of jail time (or paying their fine), they are put to work by the county and allowed to go home at night. However, they probably don't take a taxi or stop at Burger King along the way -- the county pays them $0.00/hour for their labor.

The building, used to store records for the county Treasurer's Office until 1994, is being transformed into the Alternatives to Incarceration Center. It will house offices and a "command post" for dispensing convict slave crews who will clean up parks, perform maintenance work, pick up litter, or just about anything else the county wants done "at a minimum cost," says Whatcom County Sheriff Dale Brandland.

He said remodeling the former records storage building had cost $4,500 so far, with roofing, plumbing ...

Jailhouse Travel Agents

Travel Wholesalers International, a travel agency based in Fairfax, Virginia, recruits workers in out-of-the-way places. The company employs 12 maximum-security prisoners at the Leath Correctional Institution, a women's prison in Greenwood, South Carolina. The prisoner-workers talk to clients over the phone, registering plane reservations and other travel plans in the agency's computer database.

TWI owner Dan Bohan pays the South Carolina Department of Corrections $3 per hour for each prisoner. Prison officials pay the workers 50¢ to $1.50 per hour, with no benefits, keeping the remainder to cover administrative costs.

To prevent them from writing down personal information about TWI clients, the prisoners are not allowed to possess pens or pencils in the workplace.

The labor-cost savings TWI realizes by hiring prisoners rather than workers from outside the prisons are significant, but, according to Bohan, reducing costs was not his motivation when he decided to look into hiring prisoners. He says he got the idea after learning that many ex-cons end up returning to prison because they lack marketable job skills. "We guarantee them jobs with our company when they get out," Bohan told a reporter.

TWI is apparently well satisfied with the prison-labor arrangement. Bohan hopes ...

Notes from the Unrepenitentiary

Notes From The Unrepenitentiary

By Laura Whitehorn

The Jericho '98 rally in Washington, D.C. on March 27th was, I hope, a step in the direction of freeing all u.s.-held political prisoners and Prisoners of War. Vigorous action of all kinds both domestic and international will be needed to win the release of political prisoners. Radical politics of national liberation and to end white supremacy and colonialism produced the acts that ended in the imprisonment of over 100 political women and men. Our actions challenged the u.s. government so it is not surprising that we find it nearly impossible to win release through the normal channels (few as they are) open to most prisoners. For example, the Federal and State Parole Boards most often politicize the process of release on parole, so that a political prisoner applying for parole is required to renounce her beliefs or apologize for his actions even to be considered for release.

Pursuing Jericho '98 as a long-term campaign is, therefore, necessary to political prisoners and POW's in the u.s. I think it will also be helpful to all prisoners in u.s. custody. Some people have said that supporting political ...

Work Strike Suppressed and Sabotaged in Ohio

The October 16th, 1997, issue of the Cleveland black community newspaper The Call and Post printed a letter announcing a statewide work strike by Ohio prisoners on November 1st. The letter was signed by Prisoners United For Equal Justice.

The purpose of the protest was to demand an end to the two-tiered system of sentencing created by Senate Bill 2, a "truth in sentencing" measure passed in July of 1996. Prisoners sentenced after the passage of SB 2 serve the time given to them by a judge. Prisoners sentenced before the bill took effect are under the thumb of Ohio's Parole Board -- a dictatorial body of 12 who are appointed for life, whose decisions cannot be held to any objective criteria, and who are answerable to no superior.

Prisoners in Ohio regularly receive 10 and 20 year parole continuations--"flops"and even "superflops" of 30 to 40 years. Prisoners For Equal Justice contend this amounts to double and triple jeopardy at the hands of the parole board, and creates a dangerous "atmosphere of hopelessness" in Ohio's prison system. An estimated 39,000 prisoners out of Ohio's total 47,000 have their futures controlled by the Parole Board ...

Texas Prison Labor Union

The Texas Prison Labor Union (TPLU) was established in 1995 by Texas prisoners and outside supporters. The state had just completed a $1.5 billion prison expansion program, and it now incarcerates close to 150,000 prisoners in a vast network of more than 100 prisons. One-hundred percent of Texas prisoners are forced to labor for the state, and none are paid. Not a cent.

The TPLU seeks to organize Texas prisoners and their supporters into a single body to promote social justice, human rights, and workers' rights. Among their basic goals are:

Repeal all State and Federal legislation which acts as a barrier to prisoners' right to vote in State and Federal elections.

Enforcement of State Workers' Compensation Laws relative to prisoners.

Formation of a three (3) person committee on each of the [Texas prison] units... that house prisoners in involuntary servitude... so as to produce a system of arbitration wherein prisoners may assert their collective wills in day-to-day living and working conditions.

Equal application of a minimum wage pay scale for all prisoners who perform any labor within the [Texas prison system].

The editors of PLN have been in contact with TPLU for two years. They are a ...

CURE-Ohio and the Aftermath

[Editor's Note: The following information reaches PLN by mail from an Ohio reader whose name and initials we are withholding at our discretion.]

The situation with CURE-Ohio is getting worse! CURE has formed a "coalition" of outside support groups, and is dictating policy to them. To join this "coalition" CURE-Ohio requires that each group or organization denounce passive resistance by prisoners.

On the surface, CURE-Ohio claims to be organizing support for Senate Bill 182 and the push for Parole Board reforms. But the standard they are setting shows their real intent. They're organizing against prisoners, and some prisoners (the scabs and low-lifes) are siding with CURE.

The only two outside organizations who wouldn't join CURE-Ohio's "coalition" are Jana Schroeder and her Ohio Criminal Justice Program, and the Oberlin Action Against Prison group at Oberlin College.

Paula Eyre, Rev. Jim Sutter (an ex-con), Cindy Mollick and others involved in CURE-Ohio's leadership feel threatened by prisoners' efforts to organize. They fear that we might speak for ourselves and upset their agenda. They got a sweet little gig going for themselves and they don't want us prisoners rocking the boat.

Prior Dismissals Count as Strikes

The court of appeals for the third and ninth circuits joined the fifth, seventh and tenth circuits in holding that 28 U.S.C. § 1915(g) applies to cases dismissed before the PLRA's April 26, 1996, enactment. Section 1915(g) prohibits prisoners from proceeding with in forma pauperis (IFP) status if on three or more occasions they have had a lawsuit dismissed as being frivolous, malicious or for failing to state a claim. The only exception is if the current suit they seek IFP status for alleges they are in imminent danger of physical harm. The third circuit upheld the retroactivity of section 1915(g) and dismissed the appeal without prejudice to the plaintiff being able to refile the suit in the district court if he paid the filing fee. See: Keener v. PA Board of Probation and Parole , 128 F.3d 143 (3rd Cir. 1997).

The ninth circuit, in a case arising from Washington, held: "Section 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date. Therefore, regardless of the dates of the dismissals, the analysis is the same: three prior dismissals on the stated grounds equals ...

Bad Faith Appeals

The court of appeals for the District of Columbia circuit held that 28 U.S.C. § 1915(a)(3) precludes prisoners from appealing without full prepayment of the filing fees if the district court certifies that the appeal is not taken in good faith. The issue was one of first impression in that circuit and agrees with the fifth and seventh circuit while disagreeing with the sixth circuit. The ruling is in the context that the plaintiff, Bruce Wooten, had a court order barring him from filing civil actions without leave of the court. He violated the order, was denied leave to file a new suit and tried to appeal that ruling. The appeals court stated: "If he is foolish enough to pay $105 to have us say essentially what we have already said about his case, his appeal may proceed. But if he fails to pay this amount within 14 days, the appeal will be dismissed." See: Wooten v. D.C. Metro Police Dept., 129 F.3d 206 (DC Cir. 1997).

Fee Required in Voluntary Dismissal

A federal district court in Nebraska held that the IFP fee requirements of the PLRA, 28 U.S.C. § 1915(b)(2) require payment of the full filing fee even if the prisoner plaintiff later decides to voluntarily dismiss the action. See: Conley v. Henderson , 980 F. Supp. 322 (D NE 1997).

Grievance Exhaustion Required

The court of appeals for the sixth circuit held that 42 U.S.C. § 1997e(a) requires administrative exhaustion of all claims filed after the April 26, 1996, enactment of the Prison Litigation Reform Act (PLRA). Section 1997e(a) states that "no action shall be brought with respect to prison conditions under section 1983... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

Earl White, a Michigan state prisoner, filed suit seeking monetary and injunctive relief, claiming prison officials retaliated against him after he sued them. The district court dismissed the suit without prejudice under 28 U.S.C. § 1915A for failure to exhaust his administrative remedies under 42 U.S.C. § 1997e(c)(2). The court of appeals affirmed.

The court rejected White's argument that the Michigan DOC's grievance procedure is inadequate. Because the case was dismissed without prejudice, White is free to refile his complaint after exhausting all steps in the Michigan DOC grievance procedure.

Readers should note that some courts are applying § 1997e(a) as conferring subject matter jurisdiction on federal courts to hear prisoners' section 1983 actions and the failure to exhaust ...

Physical Injury Limit Defined, Wrongly

A federal district court in Texas dismissed a lawsuit as being legally frivolous for not alleging sufficient physical injury under 42 U.S.C. § 1997e(e). Thinh Minh Luong is a Hawaii state prisoner transferred to the Dickens County Corrections Center, a private prison operated by the Bobby Ross Group in Texas. Luong is an admitted long time informant who alerted BRG officials that he was in danger because of the many prisoners he had informed on over the course of the years. No action was taken and on at least four occasions Luong was attacked by other prisoners, suffering bruises, abrasions, swelling, cuts, a bloody nose, etc.

The court held these injuries were insufficient to state a claim for relief under § 1997e(e) because none of the injuries caused lasting disablement or severe pain. Readers should note that this ruling is in direct conflict with he supreme court opinion in Hudson v. McMillian , 503 U.S. 1, 112 S.Ct. 995 (1992), as to what constitutes actionable eighth amendment injury. See: Luong v. Hatt , 979 F. Supp. 481 (ND TX 1997).

Tenth Cir. Upholds IFP Provisions

The court of appeals for the tenth circuit held that the PLRA's IFP provisions, requiring full payment of all filing fees, were constitutional. All circuit courts to consider the issue have held likewise. The court also upheld the censorship of the magazine Muhammad Speaks on grounds that it advocates racial and religious hatred. See: Shabazz v. Parsons , 127 F.3d 1246 (10th Cir. 1997).

No Ex Post Facto Violation in Permanent Loss of Forfeited Good Time

The court of appeals for the fifth circuit held that a Texas Board of Criminal Justice (TBCJ) directive forbidding prison officials from restoring good time credits previously lost did not violate the ex post facto clause. Since 1977 Texas law has allowed the director of the Texas Department of Criminal Justice (TDCJ) to forfeit goodtime credits for prisoners found guilty of violating prison rules. He was also given the discretion to restore such lost good time credits. In 1987 the law was changed to allow the TBCJ to adjust its policy on restoring lost good time in relation to prison overcrowding. If there was a decrease in overcrowding the TBCJ could direct the TDCJ to discontinue the restoration of lost good time credits. In 1993 the TBCJ did just that: any previously lost good time that was not restored as of November 20, 1993, was permanently forfeited. Several prisoners who had lost good time before the new directive went into effect filed habeas corpus petitions claiming the rule change violated the ex post facto clause of the U.S. constitution. All the petitions were dismissed in the district courts and consolidated on appeal, where the appeals court affirmed dismissal.

The ...

Alaska Classification Subject to Court Review

The supreme court of Alaska held that prison classification hearings are adjudicatory determinations subject to judicial review and that Alaska prisoners have a state constitutional right to rehabilitation. Richard Brandon is an Alaska state prisoner transferred to a privately run prison in Florence, Arizona, as part of an effort to reduce overcrowding in Alaska prisons. Two hundred prisoners were transferred under two categories. Brandon fell into the category of having more than 7 1/2 years of incarceration remaining.

At a classification hearing Brandon argued he should not be transferred because he received weekly visits from his family. If transferred he would receive no visits and it would negatively impact his rehabilitation. The hearing officer recommended transfer, prison superintendent Larry Kincheloe approved the recommendation and DOC commissioner Larry McKinistry denied Brandon's appeal. Brandon then filed an appeal in state superior court, which dismissed the appeal, holding it lacked jurisdiction to review the transfer decision because the classification proceeding was not an adjudicative proceeding nor one that produced a record capable of review. The state supreme court reversed and remanded.

The court noted that DOC determinations are subject to judicial review if "issues of constitutional magnitude are raised.... Thus, it ...

DC Women Prisoners' Suit Settled

In the December 1995, June 1996 and September 1997 issues of PLN we reported the saga of Womens Prisoners of the District of Columbia DOC v. District of Columbia , which is cited in 877 F.Supp. 634, 899 F.Supp. 659, and 93 F.3d 910, respectively. After the district court granted broad injunctive relief to the class of women prisoners, the court of appeals vacated extensive portions of the remedial order and remanded the case back to the trial court for reconsideration in light of their opinion, including the PLRA. Following the Supreme Court's denial of certiorari, the parties entered into a joint stipulated settlement, which the trial court rubber-stamped.

The settlement covered five basic areas of concern: sexual harassment, obstetrical and gynecological care, program evaluation, environmental health, and fire safety. Because federal courts lack the authority to enforce local or state laws, all claims under District of Columbia law were voluntarily dismissed without prejudice.

With respect to the sexual harassment problem the settlement requires the DCDC to write and follow a policy prohibiting the sexual harassment of employees and women prisoners. This policy must include prohibitions of all unwelcomed sexual advances and activity, invasions of women prisoners ...

Deliberate Indifference Applies to Detainees

The court of appeals for the tenth circuit held that county jail officials have a constitutional duty to protect the health and wellbeing of prisoners in their custody. The appropriate standard of liability under these circumstances is deliberate indifference, not objective reasonableness. Under the proper standard the court found that the defendants were not deliberately indifferent, and that the trial court's grant of summary judgment for the defendants was appropriate. The defendants were also entitled to qualified immunity.

In October 1991 a prisoner in the Grand County (Utah) jail committed suicide. Thereafter the prisoner's mother, sister and minor child filed suit in federal court against the county, several jail officials and county commissioners alleging claims under the fourth, fifth and fourteenth amendments. Each plaintiff sought $1,000,000 in compensatory damages.

The defendants moved for summary judgment on the theory that their conduct had not risen to the level of deliberate indifference. The plaintiffs countered that because the prisoner was a pretrial detainee, who had yet to be brought before a magistrate judge to determine if there was probable cause for his arrest, the appropriate standard should be the less stringent objective reasonableness criterion. The trial court concluded ...

Louisiana DOC Defiance Rule Unconsitutional

The court of appeals for the fifth circuit held that the Louisiana DOC rule prohibiting "defiance" was facially invalid to the extent that it proscribes prisoners from threatening prison employees "with legal redress during a confrontation situation." The court also held that habeas corpus was the proper remedy for prisoners seeking restoration of good-time forfeited through prison disciplinary proceedings, rather than 42 U.S.C. § 1983 civil rights actions.

While confined to Camp Beauregard, Charles Clarke, a Louisiana state prisoner, was accused by Capt. Charles Moulard of interfering with another prisoner's sweeping of the walkways. The guard gave Clarke the option of going to his cell or sweeping. Clarke chose the latter. A short time later the guard "accused Clarke of swinging his broom too high," apparently a serious offense in Louisiana because the guard informed Clarke that he would be infracted for his errant sweeping technique. Clarke responded by advising the guard that he would file an administrative grievance over his arbitrary ways. This reaction resulted in Clarke being charged with "defiance." He was subsequently found guilty and punished with a loss of ten days good-time and a transfer to a higher security prison.

After transfer Clarke filed ...

Prison Jobs and Free World Unemployment

In May, 1996, the Fabry Glove & Mitten Company opened a production facility in Wisconsin's Green Bay Correctional Institution. The company hired 70 prisoners as laborers, later adding 30 more. The prisoners, who operate cutting and sewing machines, earn $5.25 per hour. The Department of Corrections keeps 65% of the prisoners' wages to offset the expense of imprisoning them.

A year earlier, Wisconsin's legislature had approved Republican governor Tommy Thompson's plan to amend the state's labor laws in order to allow private firms to set up shop inside the state's prisons. Thompson won passage of his proposal only after assuring legislators that the convict-labor program would not be permitted to steal the jobs of any workers outside prison walls. Michael Sullivan, secretary of the Wisconsin DOC, affirmed that prisoner labor would be used solely to make products not currently being produced in this country.

At the beginning of 1996, the Fabry company employed 205 workers at its three Green Bay-area plants. By April, 1997, less than a year after the company began hiring prisoners, Fabry's outside-the-walls workforce had fallen by 40%, to 120 employees.

Fabry laid off the fabric cutters at its city plants in August, 1996. The following month, the firm issued orders for prisoners to cut fabric for 50,000 gloves, hats, scarves and other products. Many other workers were laid off or fired in the ensuing weeks. In the first nine months of the prison shop's operation, prisoners cut or sewed 461,000 items.

Before the prison venture began, Fabry's outside workers earned up to $11 an hour. Employing free workers also entails non-wage expenses like health-care benefits, vacation benefits, unemployment compensation and workers-compensation insurance premiums. Fabry pays none of those expenses for its prisoner employees.

Democratic state senator Charles Chvala, the senate majority leader, called the Fabry layoffs outrageous. "I challenge the governor to go to Green Bay, stand eye to eye with those laid-off workers who have played by the rules all their lives, and explain why he believes inmates should have their jobs," Chvala said. "Law-abiding citizens working Wisconsin citizens -- are being forced into competition with prison inmates for jobs, and this is indefensible."

Company president John Fabry said the layoffs were unrelated to his firm's employment of prisoners. He explained that the company had been planning layoffs since 1995. If the opportunity to hire prisoners had not materialized, Fabry claimed, the company would likely have moved production facilities to Asia.

The DOC supports Fabry's assertion that the layoffs occurred independently of the convict-labor deal. "With the information we have at this point in time, displacement [of Fabry workers with prisoners] did not occur," DOC secretary Sullivan said. "To stay viable, Fabry did reduce some operations, but I am unaware of any displacements resulting from the agreement with us."

John Matthews, governor Thompson's chief of staff, agrees. "The marketplace was forcing him to find a different place to produce these products," Matthews told a reporter. "It came down to a choice between the Pacific Rim and the prison."

Senator Chvala took issue with these denials. "There can be no mistaking the connection between Fabry's downsizing and their use of prison labor," Chvala wrote in a letter to Sullivan. Chvala called on the DOC chief to cancel the Fabry contract "before more honest, law-abiding working people lose their jobs."

Federal law mandates that private companies hiring prisoners must not displace outside workers. The U.S. Department of Justice is investigating the Fabry ordeal, but the law is unclear. The term "displacement" is not defined and the statute has not yet been tested in court.

Job loss was not the only change that awaited Fabry workers after the company shifted production to the prison shop. Four months after it began hiring prisoners, Fabry slashed the wages of its remaining free employees up to $5.50 an hour. "If you want to work for what the prisoners make," said Penny Vande Voort, a former sewing-machine operator who quit following the pay reduction, "go ahead and work for John Fabry."

The phenomenon of people outside prison walls being thrown out of their jobs by companies employing convicts is not confined to Wisconsin. A replay of the Fabry affair occurred in Texas, where U.S. Technologies sold its - electronics plant in Austin and laid off 150 workers; 45 days later, the company's owners opened a facility using convict labor in a Texas prison.

Nationwide, more than 100 private firms have reached convict-for-hire agreements with 29 states. Microsoft, IBM, Victoria's Secret and TWA are among the companies that have exploited prisoner labor.

Sources: Wisconsin State Journal, Milwaukee Journal Sentinel, Green Bay Press Gazette, U.S. News & World Report

Unicor Steals Glove Business From Private Firms

The Genco Corporation of Tennessee is among 10 private firms that have contracts with the Defense Department to manufacture gloves for the U.S. military. Suppliers of military gloves are not a happy lot these days, though. Complaining loudly of unfair competition, the 10 glovemakers have banded together to form the Federal Glove Contractors Coalition.

The manufacturer that FGCC attorneys accuse of dirty tricks is not a foreign company. Instead, it is an agency of the federal government.

In order to combat idleness among its burgeoning prisoner population, the U.S. Bureau of Prisons sets up factories inside its institutions and hires prisoners as laborers to manufacture products the BOP then sells. Unicor, the name given to the prison-industry program, sells more than $10 million worth of gloves to the Defense Department annually.

Unicor is presently trying to expand its military-glove sales to $14 million per year, 30% of the total market. If the prison-labor agency succeeds in that effort, Genco Corp. may be forced to lay off 150 workers. "We understand the desire to provide some work experience for federal prisoners," says Genco plant manager Ron Chapman, "but not if it takes away the jobs of honest, taxpaying workers ...

Union Reverses Position on Private Prisons

Last May, when a bill was introduced in the Tennessee legislature to privatize the state's entire corrections system, the private prison industry achieved a major coup by winning the support of the American Federation of State, County and Municipal Employees, a 1.3 million-member union that agreed to represent former state prison workers retained under private contract. CCA, the prison contractor behind the proposed legislation, boasted about its "labor friendly" relationship with the AFSCME. Now, however, CCA will have to find something else to brag about.

In October 1997, the president of the AFSCME, Gerald W. McEntee, stated in a bluntly worded letter to state lawmakers that the union will not represent private prison employees in Tennessee or anywhere else. McEntee indicated that the AFSCME's about-face on the privatization issue was due to concerns that correctional officers cannot maintain their professional image in private, for-profit prisons. He also cited the widely-publicized videotaped beating of prisoners at the privately-managed Brazoria County Jail as an example of the "stark" differences between public and private correctional facilities. "In the end," said McEntee, "we were not able to reconcile private prisons with our determination to uphold the professionalism of the correctional officer ...

New Jersey Mental Health Class Action Gains Momentum

Afederal district court in New Jersey has upheld the claims of a statewide class of mentally ill prisoners against defendants' motions to dismiss and for summary judgment. The defendants are: officials of the New Jersey Department of Corrections; Correctional Medical Services, Inc. ("CMS"), a private corporation providing prison health care; and Correctional Behavioral Solutions of New Jersey, Inc. ("CBS"), a private corporation providing prisoner mental health services under a subcontract with CMS. The prisoners allege in their complaint that they receive constitutionally inadequate mental health care, and that they are disciplined for acting out the symptoms of their poorly treated mental illnesses, in violation of their right to due process. The prisoners also allege that the defendants have failed to reasonably accommodate their mental disabilities as required by the Americans with Disabilities Act ("ADA"), and that CMS and CBS have violated the terms of their privatization contracts with each other and the State. See D.M., et al. v. Fauver, et al., Civ. No. 96-1840 (AET) (Nov. 10, 1997 D.N.J.).

The case began with the complaints of individual prisoners received by the Inmate Advocacy Law Clinic of Seton Hall Law School. Prisoners with serious mental illnesses were being ...

Fact Finding Required in Disciplinary Suits

In two separate rulings federal district courts in New York held that prisoners litigating disciplinary due process cases must be given an opportunity to develop a factual record to support their claims before the court rules on a motion to dismiss or for summary judgment.

Carlos Cespedes, a New York state prisoner, filed suit seeking money damages from a disciplinary hearing that resulted in lost good time credits and time spent in disciplinary segregation, after a state court had vacated the disciplinary finding. In Cespedes v. Coughlin , 956 F. Supp. 454 (SD NY 1997) the court dismissed his lawsuit pursuant to Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995) [ PLN , Aug. 1995], holding that Cespedes had no federal due process right not to be placed in segregation. Cespedes appealed.

In the meantime, the second circuit issued rulings in Miller v. Selsky , 111 F.3d 7 (2nd Cir. 1997) and Brooks v. Difasi , 112 F.3d 46 (2nd Cir. 1997) [ PLN , Sep. 1997] holding that Sandin did not imply that disciplinary segregation, by itself, could never violate due process. Based on these rulings Cespedes withdrew his appeal and the parties filed a joint Fed.R.Civ.P ...

Prison Phones Discussed

As more and more prison systems use automated phone systems that automatically record and monitor conversations there are increased questions about the legality of such systems. This ruling arose from an indirect challenge to the Massachusetts Inmate Telephone System (MITS). The MITS requires prisoners to obtain a personal identification number to call 15 pre-approved numbers where the calls are recorded and monitored. [ PLN , Nov. 1994]

William Gilday is a Massachussets state prisoner. In 1984 he settled a lawsuit against the MA DOC over the censorship of his mail and the interception of his phone calls. The settlement enjoined the MA DOC from intercepting any wire communications to or from Gilday. When the MITS was implemented in 1993, Gilday filed a motion to hold the DOC in contempt for violating the terms of the permanent injunction. The district court entered summary judgment in favor of the defendants and dismissed the case.

The court of appeals for the first circuit affirmed. The ruling gives an extensive discussion to the interpretation and enforcement of injunctions and the doctrine of collateral estoppel. What makes this ruling newsworthy, however, are its numerous case citations with regards to prisoners' use of telephones, recording of prison phone ...

$60,000 Judgement Against Florida DOC Reinstated

A Florida appellate court reversed a trial court order setting aside a jury verdict against the Florida Department of Corrections (DOC) and granting the DOC a new trial. The court directed the lower tribunal to reinstate the jury award of $60,000 in favor of the prisoner.

Twice during the ...

Jury Verdict Affirmed in Arkansas Prisoner Attack

The court of appeals for the eighth circuit affirmed a jury verdict that found a prison guard liable for failing to protect two prisoners from attack by another prisoner. Arkansas state prisoners Lonell Newman and Hoseia Chestnut were both attacked by a prisoner named Johnson who, armed with a knife ...

No Federal Remedy for False Disciplinary Charges

The court of appeals for the seventh circuit held that a prisoner who is falsely accused of misconduct and punished for no apparent reason has no legal recourse in federal court if the only punishment imposed involves 15 days of segregation. In the June, 1996, issue of PLN we reported Leslie v. Doyle , 896 F. Supp. 771 (ND IL 1995) where the district court held the constitution provides no protection to prisoners falsely accused of misconduct. The court of appeals affirmed.

Keith Leslie, an Illinois state prisoner, was infracted for disobeying a guard's order, making a dangerous disturbance, assault and insolence. At a disciplinary hearing Leslie was found guilty and sentenced to 15 days in segregation and had his good time grade reduced for a month. Leslie appealed and included statements from three guards who were present during the alleged incident and they attested that Leslie had violated no prison rules. The review board found the charges to be baseless, expunged the infraction from Leslie's record, restored his good time grade and paid him $5.10 for the prison wages he lost while in segregation. Leslie filed suit claiming that his constitutional rights were violated by William Doyle ...

Fact Dispute Bars Qualified Immunity Appeal

The court of appeals for the fifth circuit held that it lacked jurisdiction to hear an interlocutory appeal on the denial of qualified immunity to prison officials where the lower court denied qualified immunity due to disputed facts. Two Louisiana state prisoners sued Kirt Guerin, a drill instructor, who locked them in a small supply closet with 18 other prisoners for three hours. Guerin also placed a towel beneath the door to cut off ventilation, causing the plaintiffs to feel sick and nauseated. Guerin did not allow the prisoners to use the bathroom, causing one of the plaintiffs to defecate on himself.

Guerin filed a motion for summary judgement claiming he was entitled to qualified immunity from suit. The district court denied the motion for summary judgment, holding genuine issues of fact were in dispute and the record before it was not sufficiently developed to make an immunity ruling. Guerin filed an interlocutory appeal.

The court of appeals noted that the supreme court has held that civil rights defendants cannot file interlocutory appeals of denials of qualified immunity if the district court determines there is a genuine issue of fact for trial. See: Johnson v. Jones , 515 U.S. 304 ...

Florida Finally Learns the Meaning of Ex Post Facto

In a one paragraph memorandum opinion the Supreme Court of Florida held that the retroactive cancellation of provisional credits, previously awarded pursuant to statute, violates the ex post facto restrictions of the state and federal constitutions.

As a result of a population cap imposed on the Florida DOC by a federal court, the state enacted a law that authorized the across-the-board award of up to 60 days gain-time to all state prisoners earning regular "incentive" gain-time, whenever the prison system population reached 97.5% of its lawful rated capacity. Effective January 1, 1990, the statute was amended to exclude prisoners convicted of murder from eligibility. A 1992 attorney general's opinion authorized the retroactive revocation of all previously awarded provisional credits to the affected class.

In 1994 a prisoner filed a petition for writ of habeas corpus with the Florida Supreme Court seeking credit for 420 days of canceled provisional credits. Two months later the petition was denied without opinion. In a memorandum opinion the U.S. Supreme Court vacated the decision and remanded the case back to Florida for reconsideration in light of California Dept. of Corrections v. Morales , 514 U.S. 499 (1995). See: Calamia v. Singletary , 115 ...

Florida Prisoners Have Right to Present Evidence at Disciplinary Hearings

Florida Prisoners Have Right To Present Evidence At Disciplinary Hearings

A Florida state appellate court held that a denial by prison authorities of an opportunity for a prisoner to present exculpatory evidence at a prison disciplinary hearing states a claim for a denial of due process. The court rejected the Florida DOC's alternate theory of culpability approach to review.

A Florida state prisoner was charged in a prison disciplinary action with having violated the prison's barber shop rule by shaving his head. At a disciplinary hearing the prisoner was denied the ability to present unspecified exculpatory evidence that he did not violate the rule. The basis for the denial was that the evidence was not germane to the charge. The prisoner was found guilty.

After exhausting his administrative remedies through the DOC grievance procedure, the prisoner petitioned the Leon County circuit court for a writ of mandamus to compel the DOC to accord him the process he was due. In response to the trial court's order to show cause, the DOC "acknowledged that the barber shop rule should not have been applied to [a prisoner] who shaved his own head." However, the DOC argued that the prisoner ...

Delay of Dental Service Violates 8th Amendment

The court of appeals for the eighth circuit held that a district court erred when it dismissed a prisoner's suit over delays in dental care. The appeals court also held that untimely service of the suit by the marshalls service was not a basis for dismissal and that genuine issues of fact precluded summary judgment.

Edward Moore, a Missouri state prisoner, repeatedly sought dental care for a toothache from Correctional Medical Services (CMS), a private company with whom the Missouri DOC had contracted out its medical services. After six months of futile attempts to secure medical care, Moore filed suit claiming violation of his eighth amendment rights. Eventually Moore received treatment by having his, by now, badly infected tooth removed. The district court granted summary judgment to the defendants. The court of appeals affirmed in part, reversed in part and remanded for further proceedings.

The court held that the district court erred when it dismissed several defendants under Fed.R.Civ.P. 4(m), claiming Moore had failed to complete waiver of service forms. The appeals court noted that 28 U.S.C. § 1915(d) requires that officers of the court, i.e., the marshalls service, issue and serve ...

Michigan Visiting Restrictions Upheld

In the June, 1996, issue of PLN we reported Bazetta v. McGinnis , 902 F. Supp. 765 (ED MI 1996) which denied a preliminary injunction to Michigan prisoners, and their visitors, challenging prison visiting restrictions. In 1995 the Michigan DOC amended the Michigan Administrative Code (MAC) related to visiting so that the only visitors under the age of 18 would be a prisoner's child, step child or grandchild and had to be accompanied by an immediate family member; prisoners cannot visit with their natural children if their parental rights have been terminated; only ten non family members could be on their visiting lists; members of the public could only be on one prisoner's visiting list at a time and former prisoners can visit only if they are an immediate family member or have special qualifications, i.e., they are a lawyer, clergyman or government representative.

The court of appeals for the sixth circuit affirmed dismissal of the suit in a ruling that has potentially far reaching implications for all prison litigation in that circuit. The court began by noting that prisoners have no constitutional right to contact visits, Block v. Rutherford , 468 U.S. 576, 104 S.Ct. 3227 ...

Delay in Treatment for Jail Prisoner Actionable

Afederal district court in Mississippi held that disputed issues of fact involving claims by a jail prisoner that he was beaten by his cellmates required a trial to resolve. Emmett Davis was sentenced to 54 days in the Greenville, Mississippi, jail because he was too poor to pay a $554 fine imposed after he pleaded guilty to charges of petty larceny and public drunkenness.

Davis, who is white, claimed that throughout his incarceration at the jail he and the only other white prisoner in the jail, were subjected to racial slurs and threats of physical violence by black prisoners in his cell. Eventually Davis was stabbed and had a caustic cleaning solution poured in his eyes by his black cellmates. Davis sought medical assistance from jail officials but was not taken to a hospital for four hours. Davis filed suit claiming the delay in medical treatment violated his eighth amendment rights.

The court denied the defendants' motion for summary judgment, holding that a trier of fact must determine whether it was reasonable for jail officials not to take Davis to a hospital or call paramedics immediately upon learning of the attack and eye injury. The court scheduled the case for ...

Denial of Counsel Reversed

The court of appeals for the third circuit held that a district court abused its discretion in refusing to appoint counsel to an indigent pro se prisoner litigant. Paul Parham, a Pennsylvania state prisoner, filed suit after receiving inadequate medical treatment for tinnitus (ringing in the ears). Marshall Johnson, the prison doctor, prescribed ear drops and continued the treatment even after Johnson had severe negative reactions and despite the fact that ear drops are not a recognized treatment for tinnitus. Johnson repeatedly denied Parham access to an ear specialist. Six months after he initially sought medical care, Parham was seen by an ear specialist who confirmed he had suffered a severe hearing loss as a result of Marshall's malpractice.

Parham filed suit claiming the inadequate medical care violated his eighth amendment rights. Parham filed a motion for the appointment of counsel, which a magistrate granted. Two years elapsed and no counsel was appointed. Parham tried the case at trial pro se and the district court directed a verdict in Johnson's favor because Parham failed to present expert testimony on his behalf. The court of appeals reversed and remanded.

The court notes that there is no right to counsel ...

Law on Strip Searches of Prison Visitors Clearly Established

The court of appeals for the second circuit held that the reasonable suspicion standard for strip searches of prison visitors is clearly established. However, the court decided that the defendants were entitled to qualified immunity based upon the facts.

This case began in March 1989, when an assistant district attorney "received information from what he believed to be a reliable source" that a son and wife would be bringing heroin to a prisoner at the Arthurkill Correctional Facility in New York during a visit. This information was passed along to the Inspector General of the state Department of Correctional Services, who directed his immediate subordinate to strip search the son and wife on their next visit. The strip search order was passed down through several prison officials, who made no independent effort to ascertain whether there was a reasonable basis for the search. Yet, at their next visit, the family was compelled to consent to strip searches as a condition of visiting. No drugs were found.

The son brought suit for damages, pursuant to 42 U.S.C. § 1983, against several prison officials for violating his Fourth Amendment rights, and the defendants moved for summary judgment on the theory that ...

News in Brief

CA : On January 8, 1998, Lancaster state prison guard Elizabeth Begaren was shot and killed by four men while driving on a freeway. The assailants chased Bergaren's vehicle and forced it to stop on an on ramp in Anaheim where she was shot in front of her husband and 10 year old daughter.

CA: Richard Fritch was arrested in January 22, 1998, and charged with possession of stolen property Fritch was arrested in French Camp while wearing a jacket stenciled "Property San Joaquin Co. Jail." The jackets are only for prisoners. After being booked into the jail Fritch was duly given another jacket.

CA: The Los Angeles Times reported on January 21, 1998, that almost 700 prisoners were held an average of 6.9 days past their release dates in Los Angeles county jails. One prisoner was held 260 days past his release date, two others were held over 90 days past their release dates. The sheriffs office has paid 548 prisoners held a total of 3,694 days past their release dates almost $200,000 if they agreed not to sue. Defense attorney John Burton has filed a class action lawsuit against the sheriff's department claiming prisoners ...

AZ Prisoners Have Right to Attend Paternity Hearings

An Arizona state court of appeals held that Arizona prisoners have a right to attend paternity hearings in person or telephonically. Lenny Valentine, an Arizona state prisoner, had a paternity judgment entered against him. A hearing to establish a child support schedule was held. While the trial court denied Valentine's motion to be transported to the hearing, it stated he could appear telephonically at his expense. The court didn't serve the DOC with its order and Valentine was denied phone use in order to appear at the hearing. Valentine appealed the court's paternity ruling and the appeals court reversed and remanded.

The court held that a telephone appearance is sufficient to ensure a prisoner's right to access to the courts. Hence, the trial court did not err by ordering Valentine's telephone appearance. The trial court did, however, err by not ordering the Arizona DOC to provide Valentine with phone access at the time of the hearing. This error resulted in substantial prejudice and denied Valentine a fair trial because "by not being able to be telephonically present, he was denied his constitutional right to be present at the hearing and confront and cross examine witnesses ...

Prison Disciplinary Proceedings Cognizable Under § 1983 in Florida

Prison Disciplinary Proceedings Cognizable Under § 1983 In Florida

AFlorida state appellate court held that a denial of staff assistance, documentary evidence, and witness testimony in a prison disciplinary hearing states a due process claim under 42 U.S.C. § 1983, and the prison officials were not entitled to qualified immunity. The court also rejected the officials' sovereign immunity, respondeat superior, and state law notice defenses.

This case began when a Florida state prisoner was charged in a prison disciplinary proceeding with sexually assaulting his homosexual lover. As part of the disciplinary process the prisoner requested staff assistance, documentary evidence, and witness testimony. Each of these requests were summarily denied. The prisoner was then found guilty and punished by 60 days punitive segregation and a loss of 360 days accumulated gain-time.

After exhausting his administrative remedies, the prisoner filed suit against the prison officials involved. The prisoner's third amended complaint was characterized by the appellate court as ten counts that "were in effect claims for violation of [the prisoner's] due process rights under 42 U.S.C. § 1983" and one cause of action for "negligence by failing to follow the rules and regulations of the Department of Corrections."

The ...

 

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