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Prisoner Education Guide

Prison Legal News: June, 1998

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Volume 9, Number 6

In this issue:

  1. Mis-Managed Health Care in Texas Prisons (p 1)
  2. Pelican Bay Cellie Slayings (p 3)
  3. From the Editor (p 4)
  4. Human Rights Watch Condemns Indiana Control Units (p 4)
  5. Descent Into Madness: An Inmate's Experience in the New Mexico State Prison Riot (p 5)
  6. Prisons and Aids: A Public Health Challenge (p 5)
  7. Pro Se Tips and Tactics: Limiting the Burdens of Pro Se Inmate Litigation (p 6)
  8. New York Prisoner Awarded $56,000 for Beating (p 8)
  9. Bureau of Prisons Sexual Abuse Suit Settled for $500,000 (p 9)
  10. Delay in Medical Treatment States Claim (p 10)
  11. Bob Bensing, Hero, Dies Suddenly (p 11)
  12. Spokane County Corrections Officials Accused of Cover-up (p 11)
  13. PLRA Filing Fee Provisions Not Retroactive (p 12)
  14. PLRA Termination Provisions Unconstitutional (p 12)
  15. Some PLRA Fee Questions Answered by the Seventh Circuit (p 13)
  16. Eighth Circuit Issues PLRA IFP Procedures (p 13)
  17. Fatal Mismanagement at Ohio CCA Prison (p 14)
  18. California Prison Psychologist Kills Child, Self (p 14)
  19. Parolee Must Receive Morrissey Hearing (p 15)
  20. $6.5 Million Spent in California Sexual Harassment Suit (p 15)
  21. Involuntary Medical Experiments Violate Due Process (p 16)
  22. PLN Writer Exiled by CCA (p 16)
  23. Illinois Court Access Suit Dismissed (p 17)
  24. Refusal of Non-Lethal Injection Kills Arizona Prisoner (p 17)
  25. State Weasel Monitors Private Prison Chicken Coop in Texas (p 17)
  26. San Francisco City and County Jail Conditions Held Unconstitutional (p 18)
  27. Discriminatory Policy Enforcement Actionable (p 19)
  28. Michigan's Parole Amendments Constitutional (p 19)
  29. Colorado Prisoners Passing Up Parole (p 20)
  30. Alabama HIV+ Prisoners Case Remanded Once Again for Proper RA Consideration (p 20)
  31. Segregation Conditions Defined for Sandin Purposes (p 21)
  32. Attention Veteran Prisoner Activists (p 21)
  33. Race Requirement for Religion Struck Down (p 22)
  34. Washington Good Time Cap Clarified (p 22)
  35. Trial Required in Religious Diet Claim (p 22)
  36. Repeal of South Carolina Furlough Law Violates Ex Post Facto (p 23)
  37. Beating by Unknown Guards States Claim (p 23)
  38. News in Brief (p 24)
  39. Vigilante Attack on Prisoner Requires Trial (p 25)
  40. Sexual Harassment Actionable (p 26)
  41. PA County Medical Co-Payment Constitutional (p 26)

Mis-Managed Health Care in Texas Prisons

In 1993, Texas state prisons over-flowed with 70,000 prisoners. But the state was nearing completion of a $1.5 billion prison construction program that would more than double the number of state prisons. State Comptroller John Sharp appreciated what few Texans knew: the $1.5 billion prison construction price tag would be dwarfed by annual operating costs.

Prison health care was of particular concern to Sharp. For the previous half-decade, those costs had risen at a rate of 6 percent annually. The solution, according to a three-page recommendation tacked onto a massive 1993 state prison audit released by Sharp: managed health care.

Later that year, the Texas Legislature passed a bill that wrenched control of prison health care away from the Texas Department of Criminal Justice (TDCJ) and gave the responsibility for most of the medical care of the state's prisoners to the University of Texas Medical Branch at Galveston and the Texas Tech Health Sciences Center in Lubbock.

The bill passed with little debate and almost no opposition. After all, plenty of people in the free world hate their HMOs. What sane Texas politician would deprive prisoners a taste of managed care, especially when the plan promised ...

Pelican Bay Cellie Slayings

Felipe Cruz, more than seven years into a 17-to-life sentence for second degree murder out of L.A. County, was found unconscious in his Pelican Bay SHU cell on the morning of November 1, 1997. He was taken to a local hospital, where he was pronounced dead. Prison officials said that 26-year-old Cruz was strangled by his cellmate, 29-year-old James Ellrod.

It was the eighth such cellie-on-cellie slaying in Pelican Bay in the last 25 months. All five killings were by strangulation. But prison spokesman Lt. Domingo Uribe said the prison has no plans to re-examine its practice of double-celling prisoners in the Pelican Bay control unit where cellmates are confined (some say entombed) together 23 1/2 hours a day.

"All these inmates, when they double cell, it's voluntary," said Uribe. "They sign agreements to cell with each other."

Uribe said there is no evidence any of the slayings are related, although he told reporters that all of the victims and their accused killers were white. Uribe intimated that some of the killings may have been "gang related", saying that one of the victims was a member of the Aryan Brotherhood, and one of the suspects was "an ...

From the Editor

Once again, I come to you with greetings, good cheer, and to beg for money. This time, however, I'll show you the PLN budget in black and white. But before I do that, let me give you the bottom line and let you know what you can do to help turn things around.

PLN 's expenses currently run $1,000/month higher than our subscription income. Our full-time staff person, Fred Markham, gave up a $30,000/year job (with full benefits) to put in 60-70 hour weeks at PLN for $24,000/year (with zero benefits). But because of PLN 's budget deficit, Fred has been drawing only half his salary (and depleting his savings to live on). This can't go on.

Paul and I also work 50-70 hour weeks, and we draw NO salary. We're literally "Slaves of PLN !" Our part-time free-world staffer, Matt, draws $550/month for transforming hand-typed articles into a professionally typeset zine. Matt also puts in countless unpaid volunteer hours to update and maintain PLN 's web site.

Here's what you can do to help: Do you have any contacts with foundations or other funding sources? Think about it. Because ...

Human Rights Watch Condemns Indiana Control Units

In October, 1997 the international human rights organization Human Rights Watch (HRW) released Cold Storage: Super-Maximum Security Confinement in Indiana , a report on the Maximum Control Facility at Westville and the Secured Housing Unit at the Wabash Valley Correctional Facility. Cold Storage vigorously condemns the extreme isolation regimen as a penologically unjustifiable danger to prisoners and the outside community. It is based on two visits to each facility over a three-year period, from 1995-97.
Indiana's MCF and SHU are the definition of a control unit. Prisoners: spend 22-23 hours a day in their cells; take "recreation" in another cell, often alone; serve indefinite sentences without clear criteria for release; and have minimal or no access to educational
programs, criminally inadequate physical and psychological care, and little or no natural light and fresh air.

HRW found Indiana's control units to be in violation of international law. The report's authors write starkly: "the Indiana DOC has violated the prohibition on cruel, inhuman and degrading treatment contained in the International Covenant of Political and Civil Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners," two agreements the US has signed and sworn to abide by.
The ...

Descent Into Madness: An Inmate's Experience in the New Mexico State Prison Riot

by Mike Rolland, 1997

If the 1971 rebellion at Attica typified the internal cohesion, strength, and political awareness of the U.S. prison movement in the late 60s and early 70s, the 1980 riot at the Penitentiary of New Mexico State (PNM) in Sante Fe epitomized the choked, unfocused rage a half decade offensive by authoritarian prison management engendered. At least thirty-three prisoners were killed by other prisoners in the 36-hour riot. Mike Rolland seems to have encountered nearly all of them.

Descent Into Madness is Rolland's first-person account of the riot. A convict of the classic type, throughout the tale Rolland is primarily concerned with the preservation of himself and the small group of whites and Latinos he runs with. But the group is also one of the few attempting some kind of leadership in the violent chaos. Together they protect and release wounded guards, are stalked by, then stalk, a serial killer, and attempt to negotiate a settlement and surrender with state authorities. The book is macabre and disturbing, and a very fast read.

Mark Colvin, a professor of sociology at George Mason University in
Fairfax, Virginia, and one of the official investigators into the causes
of ...

Prisons and Aids: A Public Health Challenge

Prisons and AIDS: A Public Health Challenge

by Ronald Braithwaite, Theodore Hammett and Robert Mayberry

Prisons and AIDS is a well-informed, highly statistical overview of the issues surrounding HIV/AIDS in prisons and jails. The book focuses on education programs and the means to implement prevention of HIV infection in prisons and jails, and shows awareness to prisoners' gender, sexual preferences, age and culture. The authors understand prisons are integral institutions in many poor communities and communities of color, and argue that to really be affective AIDS prevention efforts must be continued after prisoners are released.

The central impediment to HIV/AIDS prevention in prison is that condoms and clean needles are almost universally forbidden: regardless of how aware a prisoner is of HIV/AIDS, they don't have legal access to the means of prevention. The authors come out strongly in favor of condom and needle distribution (or at least the means to properly clean needles), as well as for culturally sensitive educational programs targeted at particular at risk groups. They also recommend that these programs be run by peers and/or HIV-positive teachers.

Prisons and AIDS also provides an examination of guards' and prison officials' attitudes towards HIV-positive ...

Pro Se Tips and Tactics: Limiting the Burdens of Pro Se Inmate Litigation

Review of Limiting The Burdens Of Pro Se Inmate Litigation: A Technical Assistance Manual For Courts, Correctional Officials, And Attorneys General , by Lynn S. Branham (American Bar Association, 1997).

Given all the anti-prisoner publicity that usually surrounds discussions of pro se prisoner litigation, the use of the phrase "limiting the burdens" in the title of this manual might suggest that it, too, is all about how to keep prisoners out of court. But this book is nothing like that. Instead, Branham, a Senior Research Scientist in the Institute of Government and Public Affairs at the University of Illinois, has written a balanced, fair account of the reality of prisoner litigation. And even more importantly for prisoners, Branham strongly emphasizes both prevention of litigation through establishing decent prison conditions and rapid, just resolution of prisoners' legitimate grievances.

Branham covers in detail many of the usual issues that are discussed when prisoner litigation is being considered: The role access to courts/legal services programs in prisons can play; how recent court decisions on access to courts will play out; a discussion of the filing-fee provisions of the Prison Litigation Reform Act; and what federal courts can and should be doing to enhance ...

New York Prisoner Awarded $56,000 for Beating

U.S. Magistrate Judge Daniel Scanlon (Northern District, NY) ordered two guards at the Clinton Correctional Facility (CCF) in Dannemora, NY, to pay $56,000 in compensatory punitive damages to former CCF prisoner Nelson Cay to punish them for their "sadistic and savage beating" of Mr. Cay in 1988.

Following ...

Bureau of Prisons Sexual Abuse Suit Settled for $500,000

On Tuesday, March 3, 1998, at 3:00 p.m., at the United States District Court in San Francisco, U.S. District Court Judge Thelton E. Henderson was presented with a settlement of a civil rights suit against the United States Bureau of Prisons brought by three women prisoners who ...

Delay in Medical Treatment States Claim

The court of appeals for second circuit held that a district court erred when it dismissed as frivolous a prisoner's claim that his eighth amendment rights were violated when a leg injury was misdiagnosed and treatment delayed. Allen Hemmings was being held in a Vermont jail when his Achilles tendon was ruptured during a game of basketball. Despite a swollen and painful ankle Hemmings was denied specialist treatment and a jail nurse took his crutches. When Hemmings was eventually seen by a specialist, Dr. Vargas, the problem was diagnosed and surgery performed. Hemmings filed suit claiming the two month delay in treatment violated his eighth amendment rights. The district court dismissed the suit as frivolous.

The court of appeals affirmed dismissal of the claims against most of the defendants. The court held the district court should not have dismissed his medical claims. To establish an eighth amendment violation a plaintiff must prove he suffered an objectively serious medical condition, one that may produce death, degeneration or extreme pain. Subjectively, the plaintiff must prove the defendant acted with a "sufficiently culpable state of mind... the required state of mind, equivalent to criminal recklessness, is that the official knows of and ...

Bob Bensing, Hero, Dies Suddenly

The world lost a hero in the struggle for human rights on February 3, 1998. Southern Center for Human Rights lawyer Bob Bensing, 42, was returning to Atlanta, GA, from Valdosta State Prison after meeting with two prisoner plaintiffs. His car reportedly hydroplaned and crossed the median into oncoming traffic on I-75 and was struck by a truck. Bob Bensing was killed instantly. Human Rights intern, Andrew Harrison, was reported to be seriously injured.

Mr. Bensing was the lead attorney in the class action suit to expose Georgia prison guards' brutality and obtain a $283,000 settlement in favor of his prisoner clients. His "wealth of experience" and "dogged" legal work "brought the case to a very successful conclusion for the inmates and the 20 [prison] employees who testified to the brutality," said Stephen B. Bright, director of the Southern Center for Human Rights. "It is unprecedented to have that many [prison employee] witnesses come forward. He was the man to break the code of silence."

Before joining the Southern Center for Human Rights in 1995, Mr. Bensing was managing attorney for Prisoners Legal Services of New York. The ACLU of Georgia honored him with its 1997 Civil Liberties Award ...

Spokane County Corrections Officials Accused of Cover-up

An independent counsel hired by Spokane County, Washington, says that top officials at the county's Geiger Corrections Center wrongly fired a former guard and then conspired to falsify evidence so the firing would stick. The guard, Sandra "Sunny" Pilkington, was fired for misconduct in 1992 for allegedly hugging one prisoner and being alone in a darkened room with another, charges that she bitterly contested.

Pilkington was reinstated after an arbitration hearing and she later filed a federal lawsuit. The county then hired Seattle attorney Thao Tiedt as an independent investigator on advice of officials at the Washington Counties Risk Pool, the insurance pool for self-insured counties.

Tiedt completed her report, which cost the county $49,000, in early 1997. Eight months later, a five-page summary of the report was obtained by a Spokane newspaper from a source identified only as "Concerned". The most serious accusations contained in the Tiedt report are aimed at county corrections director Gary Oberg and Kay Walter, a former Geiger administrator and current superintendent of the state Airway Heights prison. The facts as reported in the Spokane Spokesmen Review are as follows:

Pilkington once told supervisors at Geiger that Geiger van driver Michael Horstman was ...

PLRA Filing Fee Provisions Not Retroactive

The court of appeals for the fourth circuit held that the provisions of the Prison Litigation Reform Act (PLRA) that require prisoners filing civil actions or appeals in forma pauperis (IFP) to ultimately pay the filing fees in full, do not apply retroactively. The court further held that the district court erred by dismissing the prisoner's action as frivolous after accepting the prisoner's partial filing fee payment without first affording him an opportunity to cure any defects by filing an amended complaint.

A Virginia prisoner filed suit against the Attorney General of Virginia and other state officials alleging that he had been physically mistreated in prison and that he was the victim of conspiracies to unlawfully convict and deny him parole. In October 1995, the district court granted the prisoner's motion to proceed IFP, requiring him to make a partial payment of the filing fee. On the same date the court issued an order dismissing the action as frivolous.

While the appeal was pending the PLRA was enacted. Section 804(b) of the act amends 28 U.S.C. § 1915(b) to require full payment of filing fees by prisoners filing civil actions or appeals IFP. On ...

PLRA Termination Provisions Unconstitutional

A federal district court in Arizona held that the Prison Litigation Reform Act (PLRA) section providing for termination of consent decrees entered into prior to the PLRA's enactment is unconstitutional, as being violative of the separation of powers doctrine. The court further ruled that the state was not entitled to termination of the consent decree.

Twenty-five years ago Arizona state prisoners commenced a class action against the state because of abuses at the hands of prison authorities. The prisoners were being routinely punished for alleged disciplinary infractions without being accorded the basic requirements of due process eventually established in Wolff v. McDonnell , 418 U.S. 539 (1974). In addition to these procedural due process violations, gratuitous beatings were being routinely administered, and the prisoners were being confined in cells without light of adequate nutrition. Good-time credits were also being arbitrarily forfeited. The parties quickly entered into a consent decree intended to cure these abuses.

In January 1994, the state moved to modify the consent decree. They neglected, however, to serve a copy of their motion on any individual currently associated with the plaintiff class. The trial court subsequently granted the relief requested without response from the plaintiffs. Thereafter, several ...

Some PLRA Fee Questions Answered by the Seventh Circuit

The court of appeals for the seventh circuit held that once a trial court determines that an appeal is taken in bad faith, a prisoner is disqualified from proceeding in forma pauperis on appeal. Any subsequent appeal, if determined to be frivolous, would count as a second strike against the prisoner for purposes of the Prison Litigation Reform Act (PLRA). The court also held that the act of filing either an initial pleading or a notice of appeal obligates a prisoner for the full amount of the filing fee, and that any failure to pay would bar subsequent filings by the prisoner. Additionally, petitions for writs of habeas corpus, pursuant to 28 U.S.C. § 2241, are civil actions within the meaning of the PLRA and subject to all the provisions thereof.

This opinion involves a consolidation of three prisoner appeals, each involving questions regarding the application of the PLRA's filing fee provisions and the collection of filing fees under the act. The opinion purports to answer some of these questions within the seventh circuit.

The first case involved a prisoner who commenced a § 1983 civil rights action after the statute of limitations had expired. The district court dismissed ...

Eighth Circuit Issues PLRA IFP Procedures

The court of appeals for the eighth circuit has issued a ruling describing the procedures it and all district courts in that circuit will use to assess and collect filing fees from prisoners who file with In Forma Pauperis (IFP) status. The court notes that the Prison Litigation Reform Act (PLRA) requires that prisoners eventually pay all filing fees. IFP status merely allows payment in installments.

Prisoners who appeal the denial of IFP status under 28 U.S.C. § 1915(a)(3) by district courts can do so under FRAP 24(a), but will be assessed the appellate filing fees upon filing such a motion. The court notes prisoners responsibility for the fees continues until the fee is paid in full.

The court describes in detail the process by which PLRA IFP fee collection will take place. All IFP litigants in the eighth circuit should read and familiarize themselves with this ruling. See: Henderson v. Norris, 129 F.3d 481 (8th Cir. 1997).

Fatal Mismanagement at Ohio CCA Prison

In February 1998, federal judge Sam Bell ordered the Corrections Corp. of America to halt the transfer of inmates from Washington, D.C., to the Northeast Ohio Correctional Center (NOCC), a CCA-owned prison in Youngstown, Ohio. Bell agreed with Alphonse Gerhardstein, the Cincinnati attorney representing NOCC prisoners, that CCA administrators inadequately classified prisoners transferred to NOCC.

Although NOCC is medium-security prison, many of the convicts sent there from the District of Columbia penal system were assaultive, long-term prisoners who Gerhardstein contends are properly classified as maximum security. The District of Columbia, which has a contract with the CCA to house prisoners at the Youngstown facility, may have tried to unload some of its most dangerous and troublesome prisoners on NOCC. But CCA administrators are responsible for ensuring that prisoners they accept for confinement at NOCC are appropriate for medium-security placement.

Judge Bell's ruling was prompted by the fatal stabbing, on February 22 1998, of NOCC prisoner Derrick Davis. Three prisoners stabbed Davis 15 times in the face, neck, chest and hands, according to Youngstown police.

Ironically, Davis was one of Gerhardstein's clients in the suit challenging classification policies at NOCC. Richard Johnson, one of the suspects in Davis ...

California Prison Psychologist Kills Child, Self

Tracy Lynn Johnson, 33, worked as a prison psychologist at the California Medical Facility (CMF, Vacaville) until she went on "stress leave" on September 5, 1997. [CMF, Vacaville is at the center of a long-running class action suit over inadequate mental health care]. Four months later Johnson died of strangulation, an apparent suicide, in the Solano County Jail.

On Monday, December 15, 1997, Johnson phoned police to report her 2-year-old daughter missing. But hours later, during police questioning, she confessed that she drowned her toddler in a pool of water, placed her body in a plastic garbage bag and threw her in a dumpster. Police found the girl's body in the dumpster, surrounded by cat litter in an apparent attempt to hide any decomposing smell.

Police sources said that Johnson's husband is not a suspect in the slaying. Dr. Johnson was taken into custody and placed in the Solano County Jail. Days later she resigned from her job after prison officials arrived at her jail cell with revocation paperwork. She was then placed on "suicide watch" by jail officials.

On Dec. 30 Johnson was taken off suicide watch, while still receiving medication for manic depression and auditory hallucinations ...

Parolee Must Receive Morrissey Hearing

A parolee who is convicted of a new crime has a due process right to a parole revocation hearing that fulfills all six requirements of accurate fact-finding set out in Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593 (1972).

William John was convicted in 1976 on federal sexual assault charges (the crime occurred in Glacier National Park) and was sentenced to 30 years. The U.S. Parole Commission paroled John in 1982.

In 1986, John pleaded guilty to a sexual assault charge in New Mexico state court and was sentenced to 12 years. The Commission lodged a detainer against John, and in 1993 he was paroled from his New Mexico sentence into federal custody.

The U.S. Parole Commission conducted a perfunctory parole revocation hearing and suggested a release date after 156 months (counting the 90 months John had already served in state custody). The National Commissioners affirmed the revocation decision and upped the ante: it ordered John to continue his federal sentence to a reconsideration hearing in 2008.

John filed a writ of habeas corpus, which the AZ district court dismissed as moot after the U.S. Parole Commission offered to conduct a belated "limited revocation ...

$6.5 Million Spent in California Sexual Harassment Suit

by W. Wisely

The cost to California taxpayers will top $6.57 million in a sexual harassment suit judgment handed down November 30, 1997, against the Department of Corrections. The amount included $2 million in damages, $1.8 million paid to private defense attorneys retained for the seven month trial ...

Involuntary Medical Experiments Violate Due Process

The court of appeals for the ninth circuit held that doctors who administer drugs without a patient's consent for research purposes violate the right to substantive due process. The court also held that fact questions existed which precluded summary judgment. Charles Johnson was seriously injured while trying to evade arrest. Johnson suffered severe head injuries, was taken to a University of California hospital where he was given a paralytic agent, was intubated and hyper-ventilated to prevent brain damage from intercranial pressure.

Doctors Meltzer and Marshall inserted an instrument into Johnson's skull to monitor intercranial pressure. Meltzer signed a consent form on Johnson's behalf authorizing use of an experimental drug called U-74-006F. Johnson was unconscious and unable to consent. The Food and Drug Administration had approved use of the drug in experimental trials but not for general use. Johnson filed suit claiming his rights were violated by the involuntary, experimental use of drugs. The district court dismissed the suit, granting summary judgment to the defendants. The court of appeals affirmed in part, reversed in part and remanded.

As a procedural matter the court held the district court erred in granting summary judgment to a defendant who was never ...

PLN Writer Exiled by CCA

PLN Writer Exiled by CCA

Alex Friedmann is a prisoner and a journalist. Until recently he also warmed a for-profit bunk at the Corrections Corporation of America's (CCA) South Central Correctional Facility in Clifton, Tennessee. That is, until his corporate warders decided that Alex Friedmann presented a threat to the security of their stock performance.

Alex has written numerous articles for PLN and other publications, mostly about prison privatization in general and CCA in particular [See the cover articles of the Nov '97 and Feb '98 PLN s]. He was also interviewed by Eric Bates, who quoted Alex in the article "Private Prisons" [ The Nation , January 5, 1998].

Initially, CCA/South Central employees refused to allow copies of The Nation article into the prison, claiming it would "incite disobedience to law enforcement officials or prison staff." This blatant censorship was subsequently overturned on appeal to TN DOC officials.

Shortly thereafter, PLN received a letter from Alex: "As indicated by my address change, I'm no longer at CCA/South Central...." He had been transferred to a TN state prison "in the far northwest corner of the state, about as far away from anywhere as you can possibly get."

Prison ...

Illinois Court Access Suit Dismissed

When the U.S. supreme court decided Lewis v. Casey , 116 S.Ct. 2174 (1996) [ PLN , Aug. 1996] PLN noted that the ruling essentially gutted prisoners' right of access to the courts and made it virtually impossible for class action court access claims to succeed. This case illustrates those predictions.

In 1982 Illinois state prisoners in segregation units filed a class action suit claiming they were denied meaningful access to the courts. After years of discovery and pretrial preparation a bench trial was held and in 1995 the district court ruled in favor of the plaintiffs, finding they had been denied their right of access to the courts. See: Walters v. Edgar , 900 F. Supp. 197 (ND IL 1995)[ PLN , June, 1996]. After Lewis was decided, the court reopened testimony in the case to allow the plaintiffs to meet the new standard.

Lewis requires that prisoners show "actual injury" to prevail on access to the court claims, i.e., they must prove that a non frivolous lawsuit related to the conditions of their confinement or their criminal conviction was dismissed. In class action suits the named plaintiffs had to prove they had lost meritorious court cases because they could not ...

Refusal of Non-Lethal Injection Kills Arizona Prisoner

Arizona prisoner Teshome Abate, 39, died Jan. 3, 1998, after a four month hunger strike.

In 1989 Abate brought suit against the department of corrections seeking to acquire his Ethiopian Orthodox Christian diet. Ethiopian Orthodox leaders had informed officials their faith requires adherence to Old Testament dietary laws. There was never any question as to Abate's faith, but rather the department's refusal to provide his diet.

"The department was doing everything we could," DOC spokesman Mike Arra said. "But we could not accommodate him."

That claim by Arra was disputed by Donna Hamm, President of Middle Ground Prison Reform. "I understand an inmate cannot make unreasonable requests, but when he has religious beliefs he is willing to die for, it seems like DOC could go halfway," she said.

The court agreed with the department and the Ninth Circuit Court of Appeals and U.S. Supreme Court affirmed. After these rulings denying his diet, Abate launched his hunger strike. Prison officials received a court order to force-feed him intravenously, but soon grew weary of his resistance. Officials then decided not to continue to attempt to force-feed him.

"For a department that has executed seven inmates since 1993 [by lethal ...

State Weasel Monitors Private Prison Chicken Coop in Texas

Robert L. Dearing is the deputy director of the Texas Commission on Jail Standards. The jail commission is in charge of inspecting and certifying county jails, including those that are privately operated. The jail commission's authority to enforce state standards, in effect, gives it the life-and-death power over private prison vendors who want to ply their trade in the state of Texas.

One of those vendors, the Bobby Ross Group, operates the Dickens County Correctional Center (DCCC) in West Texas. DCCC has been the site of numerous disturbances. The facility was criticized by Montana state officials who conducted an audit and cited 29 areas of noncompliance with the jail's contract to house Montana prisoners .

Unlike the Montana state audit, however, Texas state jail commission inspector Robert Scarborough -- and deputy director Dearing gave the troubled Bobby Ross Group facility a clean bill of health.

The discrepancy between the Montana and Texas state inspections wasn't big news. Not until the Houston Chronicle did some digging. In November, 1997, the Chronicle reported a startling fact: A subsidiary of the Bobby Ross Group paid a hefty $42,000 a year "consulting fee" to Dearing.

Bobby Ross company attorney, Tony Schaffer, confirmed ...

San Francisco City and County Jail Conditions Held Unconstitutional

A federal district court in California ruled that numerous conditions of confinement at San Francisco county jail # 3 violated contemporary standards of decency and the eighth and fourteenth amendments. Of particular importance to West coast readers, the court found that the jail's vulnerability to earthquakes was unconstitutional. Since most detention facilities between San Diego and Anchorage lie on or near seismic fault lines, this is an important area of eighth amendment liability that warrants exploration and, if necessary, litigation.

In 1991 city and county jail prisoners filed a class action suit challenging conditions at jail # 3, seeking money damages and extensive injunctive relief. That suit was settled in 1993 with the defendants agreeing to comply with the settlement's requirements. In 1994 the plaintiffs reopened the case and filed an amended complaint charging the defendants with failure to comply with the earlier settlement. The court appointed Allen Breed as a special master to determine the defendants' compliance with the earlier settlement. Breed's report concluded that while some conditions at jail # 3 had improved, in many cases the defendants completely or substantially failed to comply with the settlement. After further hearings the court ordered the parties to file cross ...

Discriminatory Policy Enforcement Actionable

The court of appeals for the eighth circuit held that the discriminatory enforcement of prison policies is actionable as an equal protection violation. William Foster is a black Missouri state prisoner. A prison policy required that all electronic equipment be bought from the prison commissary. Foster requested permission from warden Paul Delo to buy a television and a stereo from an outside vendor. Delo refused and Foster sued claiming the denial was in retaliation for lawsuits Foster had filed and because he was black. The district court granted summary judgment to Delo and dismissed the suit. The court of appeals affirmed in part, reversed in part and remanded.

The appeals court held that no evidence supported a retaliation claim, which had been properly dismissed. However, the court reversed dismissal of the equal protection claim. Foster submitted an affidavit stating four white prisoners had told him Delo had allowed them to purchase electronic equipment from outside vendors. "These statements would create a genuine issue as to Delo's explanation of the exceptions granted to two white inmates, and as to exceptions allowed other white inmates... we conclude Foster's further attestations, that he could not obtain these inmate's affidavits because ...

Michigan's Parole Amendments Constitutional

The court of appeals for the Sixth Circuit held that the 1992 amendments to Michigan's parole laws, that postpone initial mandatory review hearings for certain state prisoners and reduce the frequency of subsequent mandatory parole hearings, do not violate the Ex Post Facto Clause of the U.S. Constitution.

In 1992 the Michigan legislature revised its laws governing parole. These amendments established a uniform mandatory parole interview schedule for prisoners serving sentences for crimes committed before the effective date of the statute. Those effected were prisoners serving "mandatory life, parolable life, or long indeterminate sentences." The new schedule called for initial parole interviews after ten years incarceration, followed by subsequent interviews every five years thereafter.

Numerous prisoners effected by the 1992 amendments filed civil rights complaints alleging that the retroactive application of the new parole interview schedule violates the Ex Post Facto Clause because it lessens their eligibility for early release. The prisoners argued that the changes impose greater punishment than the law did at the time they committed their offenses.

The trial court consolidated the individual cases and certified a class action. The prisoner/plaintiffs were divided into three subclasses, based upon offense date (pre-1977, 1977-1982, and 1982-1992 ...

Colorado Prisoners Passing Up Parole

More than 2,500 Colorado state prisoners opted to stay in prison rather than ask for parole during the fiscal year ending June 30, 1997. More than 20 percent of those who waived parole hearings were close to ending their full sentence, usually within six months to a year. But most of the rest skipped their parole hearings because they knew they would be turned down anyway, said DOC spokesperson Liz McDonough.

"A lot of these people know they're not going to get paroled," said McDonough, "so they just don't go through the disappointment and heartache of a hearing."

The Colorado state parole board conducted 13,292 parole hearings in FY 1996-97. They granted 3,273 paroles. The 2,547 prisoners refusing to attend parole hearings was a 22.5 percent increase over the previous year.

Colorado prisoners are technically eligible for parole after serving half their sentence, said Bob Sylvester, the manager of Dismas House, a Denver halfway house for parolees. But the parole board is making most prisoners serve at least 70 percent of their time, said Sylvester.

Rocky Mountain News

Alabama HIV+ Prisoners Case Remanded Once Again for Proper RA Consideration

The court of appeals for the eleventh circuit held that prisoners asserting a claim to Rehabilitation Act (RA) protection had the burden of showing that they were "otherwise qualified" under the Act, or could be made so by reasonable accommodation, and that the trial court's determination that RA rights could be subordinated to correctional concerns violated the law of the case doctrine. The court further held that reassignment of the case on remand to a different judge was warranted.

For more than a decade the Alabama DOC has maintained a policy of segregating all HIV+ prisoners. Male prisoners are confined to the Limestone Correctional Facility, while seropositive female prisoners are housed at the Julia Tutwiler Prison for Women. Each of these facilities has a separate unit for HIV+ prisoners, and these prisoners are unable to participate in most of the programs available to HIV-prisoners. In addition, the programs available to seropositive prisoners are "not comparable" to the programs available to the general prison population.

In 1987 Carmen Harris filed suit against the ADOC seeking declaratory and injunctive relief. The case was eventually certified as a class action. The prisoner class claimed that the ADOC's HIV policy violated several ...

Segregation Conditions Defined for Sandin Purposes

The court of appeals for the seventh circuit held that district courts evaluating the impairment of a liberty interest in prison disciplinary hearings should compare segregation conditions of confinement throughout the entire state prison system. The court expressed doubt that prisoners would ever be able to show a liberty interest in being free from segregation absent the loss of good time. This ruling constitutes the latest episode of the lower courts grappling to apply the supreme court's muddled and poorly written ruling in Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995)[ PLN , Aug. 1995]. In Sandin the court held that prisoners cannot show a liberty interest protected under the federal due process clause unless they can show they suffered an "atypical and significant" deprivation.

Thomas Wagner, an Indiana state prisoner, filed a petition seeking habeas corpus relief in federal court after he was sentenced to one year in segregation as punishment for battery in a prison disciplinary hearing. Wagner lost no good time. The district court dismissed the suit. The record consists only of the complaint, with no information about segregation conditions. The appeals court vacated and remanded the case with detailed instructions to the ...

Attention Veteran Prisoner Activists

Celling of America co-editor Daniel Burton-Rose is working on a book about prisoner activism in the 1960s and 70s. Daniel is seeking contacts with veterans from that period. Rememberances of involvement in work stoppages, anti-racist organizing, prisoner unions, etc. are especially welcome. Send letters to: Daniel Burton-Rose; c/o Prison Legala News; 2400 NW 80th Street, #148; Seattle, WA 98117.

Race Requirement for Religion Struck Down

Afederal district court in Louisiana held that a prison rule allowing only ethnic Native Americans to engage in Native American Religious (NAR) practices was unconstitutional. Seven Louisiana state prisoners housed in a private prison operated by the Corrections Corporation of America (CCA) on contract to the Louisiana DOC, filed suit claiming violation of their first amendment religious rights. The plaintiffs claimed they were allowed to practice NAR for an eight month period after which their gatherings were forbidden and they were denied the use of items sacred to their religion, such as pipes, tobacco, feathers, sweat lodge, etc. The prison warden claimed that a "gang or organization" was forming and the Louisiana DOC promulgated a policy that allowed only prisoners that have a Bureau of Indian Affairs (BIA) number or are ethnically Native American to participate in NAR ceremonies. The policy also limited the use of religious items to sacred circle services and required their storage in the prison chaplain's office when not in use and authorized one special gathering a year. All the plaintiffs were denied NAR participation because they did not have a BIA number or were not "ethnically Native American."

After an evidentiary hearing the court ...

Washington Good Time Cap Clarified

AWashington state court of appeals held that prisoners convicted of violent class B felonies were entitled to a one third good time sentence reduction and not the fifteen percent reduction calculated by the Washington DOC. Craig Mahrle was convicted of solicitation to commit second degree murder. The Washington DOC applied RCW 9.94A.150(1) to his sentence. This statute pertains to earned early released credits and specifies that: "In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned early release time exceed one third of the total sentence."

Former RCW 9.94A.030(27)(A) defined "serious violent offenses" as: first and second degree murder; homicide by abuse; first degree kidnapping; first degree assault; first degree child assault and the attempt, solicitation or conspiracy to commit any of these offenses. While Mahrle's offense was a "serious violent offense" under RCW 9.94.150(1), it was only a class B felony.

The court held that RCW 9 ...

Trial Required in Religious Diet Claim

Afederal district court in California held that disputed facts required a trial to determine if a segregated Muslim prisoner's religious rights were violated when he was denied a special diet during Ramadan. Roderick Washington, a California state prisoner, filed suit claiming he was denied the diet Muslim prisoners in population at the Centinela State Prison received during Ramadan. The court had previously denied the defendants summary judgment in this action. After the supreme court struck down as unconstitutional the Religious Freedom Restoration Act, see: City of Boerne v. Flores , 117 S.Ct. 2157 (1997) [ PLN , Sep. 1997], the defendants filed a motion for reconsideration under Fed.R.Civ.P. 54(b), which the court denied.

Applying the first amendment free exercise of religion standard for prisoners articulated in O' Lone v. Estate of Shabazz , 107 S.Ct. 2400 (1987) and Ward v. Walsh , 1 F.3d 873 (9th Cir. 1992), the court held there was no evidence showing that limiting the religious diets of prisoners in administrative segregation was related to any legitimate penological goal. Prisoners have a right to be provided with food sufficient to sustain them in good health which satisfies the dietary laws of their religion ...

Repeal of South Carolina Furlough Law Violates Ex Post Facto

The court of appeals for the fourth circuit held that amendments to a South Carolina statute which eliminated furlough rights for prisoners convicted before its passage violate the ex post facto clause of the U.S. constitution. In 1983 the South Carolina legislature enacted S.C.Code.Ann. § 24-13-720 which provides for the mandatory release on supervised furlough, six months prior to the expiration of their sentences, of all prisoners serving less than life sentences. In 1993 the legislature amended the statute to make the furlough program permissive rather than mandatory and to incorporate eligibility criteria from S.C.Code.Ann. § 24-13-710, which would exclude violent offenders from the program.

The South Carolina supreme court held that the 1993 changes to § 24-13-720 were a substantive change to the law but "application of the amended statute to prisoners who were not within six months of the expiration of their sentences at the time of the 1993 amendment did not offend ex post facto principles." See: Plyler v. Evatt , 313 S.C. 405, 438 S.E.2d 244 (1993). The same plaintiffs from that case then filed a habeas corpus action in federal court. In an unpublished ruling, the district court held ...

Beating by Unknown Guards States Claim

Afederal district court in the District of Columbia held that a prisoner's claim that he was beaten unconscious by three unknown guards stated a claim for violation of the eighth amendment. James Arnold, a District of Columbia (DC) prisoner, was returning to his cell from a prison official's office when he found a guard severely injured from an apparent attack by other prisoners. Arnold claimed he was attempting to help the guard when three unidentified Emergency Response Team (ERT) guards arrived, handcuffed him and then proceeded to kick, stomp and beat him unconscious while calling him names. Arnold was then placed in a feces covered cell with no running water, heat, bedding or eating utensils. He was also denied medical care for his injuries for several days. Arnold filed suit claiming this chain of events violated his eighth amendment right to be free from cruel and unusual punishment. The defendants filed a motion to dismiss for failure to state a claim, which the court granted in part and denied in part.

The court dismissed Arnold's medical claims and those related to his isolation because he had not sued the right defendants and did not claim that the ...

News in Brief

AZ : On April 1, 1998, former Perryville prison warden Thomas Sullivan was convicted by a Maricopa county jury of raping three girls, ages 8-16. A 16 year Arizona DOC employee, Sullivan was arrested in March, 1996, when DOC employees reported the allegations to superiors. One of his victims, now in her 20's, is a state prison guard who told police Sullivan molested her when she was 10 and they had an affair when she was 16. Before being convicted Sullivan had sued the ADOC for wrongful termination because he was fired after being arrested.

AZ : On March 17, 1998, Jack Bearce, a state prison guard at the Florence prison, was arrested for smuggling drugs into the prison. Bearce had a balloon filled with drugs when arrested. Bearce has been charged with promoting prison contraband and possession of dangerous drugs. He was released on bail pending trial.

CA : On February 27, 1998, medical employees from state prisons picketed the California Department of Corrections health care services office in Sacramento to protest unsafe working conditions. The medical technical assistants and nurses want to be allowed to use pepper spray and batons to deal with their prisoner patients.

CT : On March 3 ...

Vigilante Attack on Prisoner Requires Trial

The court of appeals for the second circuit held that issues of fact as to whether guards were personally involved in a vicious attack on a prisoner, precluded summary judgment for the guards. The court also held that a statement allegedly made by one of the guards to one of the prisoner assailants, was admissible as a statement of a coconspirator in furtherance of a conspiracy.

The factual basis for this case involves a New York state prisoner, newly confined to the Clinton Correctional Facility, who had intentionally clogged the toilet in his cell in a protective custody (PC) wing and flooded the unit. He was apparently miffed at being swindled in a transaction with another PC prisoner. The following morning six prisoners entered his locked cell and severely beat him.

The way the cellblock was designed, the individual cell doors could only be opened by means of controls on a panel in the guards' cage. Although numerous guards had theoretical access to the control panel, only one guard and a sergeant were actually assigned to the wing at the time of the attack.

Just prior to the assault, the prisoner heard one of the assailants say, "Sergeant says no ...

Sexual Harassment Actionable

The court of appeals for the seventh circuit held that sexual harassment by prison staff is actionable under 42 U.S.C. § 1983. The ruling is important because it defines when prison staff act under "color of state law" for liability purposes. Eric Walker, an Illinois state prisoner, filed suit against Debbie Dinning, a prison counselor. Walker claimed that on three different occasions Dinning sexually harassed him when he sought her protection from threats by other prisoners; that Dinning grabbed his penis and on another occasion made comments about his genitals when he was entering a shower.

The district court dismissed the complaint as frivolous, holding Dinning did not act "under color of state law," a necessary element for a 42 U.S.C. § 1983 claim, because she was pursuing her own interests. The court of appeals reversed and remanded the case for further proceedings.

The court gave an extensive discussion to the "color of state law" requirement in § 1983 actions. West v. Atkins , 487 U.S. 42, 108 S.Ct. 2250 (1988) explains that defendants in § 1983 suits act under color of state law when they exercise power "possessed by virtue of state law and made possible only because ...

PA County Medical Co-Payment Constitutional

The court of appeals for the third circuit held that a program charging prisoners a small ($3-$5) fee when they sought medical care, is not per se unconstitutional, nor as implemented, under the eighth amendment. The court further held that the program is not unconstitutionally vague, that the procedures for fee deduction do not violate due process, and that the program does not violate prisoners' right of access to courts.

This case involves a policy implemented at the Berks County (PA) Prison charging prisoners a medical co-payment. Under the policy, indigent prisoners are guaranteed care; however, their prison accounts are debited for the charge. Any future income received by a prisoner is seized at a rate of 50% to satisfy any outstanding balance. If there are any unpaid fees when a prisoner is released, they may be recovered by a collection agency.

Although the court acknowledged that "a state must provide [prisoners] with basic medical care," it observed that "the question of whether that care must be provided free of charge" has yet to be resolved by the supreme court. Hence, medical co-payments are not per se unconstitutional.

The court analyzed the prisoners' "as implemented" challenge by consolidating eight ...


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