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Prisoner Education Guide

Prison Legal News: July, 1998

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Volume 9, Number 7

In this issue:

  1. U.S. Supreme Court Rejects Heightened Pleading Standards for Intent Based Claims (p 1)
  2. Youth in Washington Prisons Challenge Lack of Education (p 3)
  3. From the Editor (p 4)
  4. Letter of Apology from TCI (p 4)
  5. PLN Sues Utah Department of Corrections Over Bulk Mail Ban (p 5)
  6. Where International Law Ain't Law (p 5)
  7. No Interlocutory Appeals in Decree Terminations (p 6)
  8. PLRA Three Strikes Ruling Vacated (p 6)
  9. Consent Decree Termination Upheld (p 6)
  10. Seventh Circuit Upholds Constitutionality of Physical Injury Requirement (p 7)
  11. DARK NIGHT Field Notes (p 8)
  12. Prisoner 'Stress Response Syndrome' Described (p 8)
  13. Truth Takes a Holiday in Virginia DOC Press Release (p 9)
  14. Behind Closed Doors: Struggle in Washington IMU's (p 10)
  15. Former Texas Prison Chief Indicted (p 12)
  16. Eight California Prison Guards Indicted (p 13)
  17. Presence of Prison Rape in Utah Denied (p 14)
  18. New Mexico S.Ct Grants Asylum to Little Rock Reed (p 15)
  19. FBI Law Enforcement Sting Nabs 53 in Ohio (p 15)
  20. High-Tech Vendors Penetrate Prison Market (p 16)
  21. $350,000 Awarded in Ohio Prisoner Death (p 17)
  22. California Whistleblowers Silenced, Punished (p 17)
  23. Wisconsin Joins the Control-Unit Fraternity (p 17)
  24. Former Arizona Governor Sentenced (p 18)
  25. Another Florida Gain-Time Statute Unconstitutional (p 18)
  26. Transgender Treatment Questioned (p 19)
  27. Sexual History Evidence Limited in Rape Suit (p 19)
  28. Hepatitis C Epidemic Threatens California Prisoners (p 19)
  29. Pennsylvania Consent Decree Clarified (p 20)
  30. 8th Circuit Orders BOP Sentence Reductions (p 20)
  31. Seg Conditions Analyzed for Sandin Purposes (p 21)
  32. News in Brief (p 22)
  33. Right to Psychiatric Care Clearly Established (p 24)
  34. Gender Motivated Violence Act (p 24)
  35. Injury Required to Enforce Grand Jury Law (p 25)
  36. Washington Child Support Minimum Struck Down (p 25)
  37. Criminal History Inadmissable for Impeachment (p 25)

U.S. Supreme Court Rejects Heightened Pleading Standards for Intent Based Claims

By Paul Wright

On May 4, 1998, the United States supreme court held that civil rights plaintiffs do not have to meet a heightened standard of pleading when filing suit against government officials. Lawsuits alleging an improper motive on the part of government defendants, i.e., retaliation claims, do not require "clear and convincing" proof. The ruling by the en banc court of appeals for the District of Columbia circuit was reversed and remanded. Readers should note that while this case arose in a prison context, its principles apply "to all classes of plaintiffs bringing damages actions against any government official, whether federal, state or local."

Leonard Crawford-El is a jailhouse lawyer in the District of Columbia (DC) Department of Corrections (DOC), described as "a litigious and outspoken prisoner" by the court. In 1988-89 Crawford-El was subjected to several transfers due to overcrowding in the DC DOC. During the course of these transfers, three boxes of his property, including legal materials, were ordered picked up by Crawford-El's brother-in- law at a DC prison rather than being forwarded to Crawford-El's next prison destination. The boxes were eventually shipped to Crawford-El, at his expense, at the new prison where he ...

Youth in Washington Prisons Challenge Lack of Education

by David C. Fathi

Youth incarcerated in the Washington Department of Corrections (WDOC) are challenging the state's failure to provide them with basic and special education, as required by state and federal law.

The lawsuit, Tunstall v. Bergeson , was filed in state court on November 21, 1997, and certified as a class action on February 9, 1998. It names as defendants the Secretary of WDOC, the state Superintendent of Public Instruction, and the superintendents of the school districts in which incarcerated youth are located. The lawsuit seeks education services for youth who are currently incarcerated, as well as compensatory education for those who were denied education during past periods of incarceration.

Washington's state constitution declares the education of all children to be the "paramount duty of the state," and state statutes provide that basic education shall be available to all persons under the age of 21. In addition, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. , confers a right to special education services on disabled persons under the age of 22.

Despite these clear mandates, Washington state officials have failed to provide basic and special education services to youth in prison. Indeed ...

From the Editor

We would like to thank Youth Emergency Services in Texas for awarding PLN a $1,000 grant with which to do sample mailings. We would also like to thank an East coast prisoner, who prefers to stay anonymous, for his donation of $500 so we can run 28 page issues of PLN for July, August and September instead of our normal 24 pages.

In April I started doing a weekly radio on KPFA, the Pacifica station at 94.1 FM in San Francisco, called This Week Behind Bars . The show is seven minutes long and airs as part of Flashpoints at 5:20 PM every Wednesday afternoon. I provide news and some commentary on what is going on in America's prison system. Dan and I will soon start alternating the shows each week. If you would like to have the show carried in your area ask local radio stations to contact Flashpoints host and producer Dennis Bernstein at (510) 848-6767 and make the necessary arrangements. Recent guests on Flashpoints include Dan discussing PLN , Jennifer Vogel, the journalist who wrote the story of rebellion in Washington control units in this issue of PLN and Stephen Bright, the attorney who recently ...

Letter of Apology from TCI

Reader Mail

Dear PLN ,

We are aware of the difficulties our customers have had over the past several months in attempting to obtain service from us. Demand has been so great that, because of being underfunded and understaffed, we were not able to serve many of the people who contacted us. To these folks we send our sincere apologies and ask that they give us another try.

TCI is now under new management and has implemented a new process to get our customers on line. If those who have had problems obtaining service from us in the past will call us now we believe they'll experience much different treatment from TCI.

Our company was founded on the principle of obtaining for our customer the lowest possible per-minute long distance rates. In many states, we now offer well under 10¢ per minute for calls from/to anywhere in California. TCI will always search for the lowest long distance rates available for all prison inmates and their families.

PLN has played a huge role, in fact, the only role, in getting the word out about our company. We know the degree of integrity with which PLN serves its readers, and we ...

PLN Sues Utah Department of Corrections Over Bulk Mail Ban

On April 23, 1998, PLN and PLN subscriber Walter Thomas filed suit against the Utah DOC in U.S. district court in Salt Lake City, Utah. The Utah DOC has a policy which prohibits prisoners from receiving materials sent via third and fourth class mail (AKA "bulk mail"). This includes publications by non profit organization such as PLN .PLN wrote Utah prison officials attempting to resolve the problem, to no avail. Walter Thomas, a prisoner at the Utah State Prison in Draper, subscribed to PLN in early 1998. The March, 1998, issue of PLN was not delivered to him at all, nor was the April PLN . The latter was returned to PLN marked "return to sender," "Bulk rate mail not accepted at UT state prison." At no time were either PLN or Thomas afforded an opportunity to appeal the censorship.

The lawsuit claims that the ban on bulk mail violates the plaintiffs' right to free speech and due process under both the Utah and U.S. constitutions. The plaintiffs seek a Temporary and Permanent Injunction enjoining enforcement of the bulk mail ban; declaratory judgement that the policy is unconstitutional; money damages and attorneys fees.

A federal court in Washington recently ...

Where International Law Ain't Law

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. . .

Marbury v. Madison (1803) (quoting Lord Blackstone's Commentaries)

When U. S. President W. J. Clinton was trying to assemble international support for a blitzkrieg bombing run on Baghdad, he claimed the onetime U.S. ally was an "outlaw state" that flaunted "international law."

The Ohio State fiasco, where U.S. diplomats ran into a brick wall of public resistance to their largely incoherent Iraqi policy, began with similar saber-rattling about "violations of international law."

If politicians and defense industry-paid pundits were to be believed, the very allegation of a nation being violative of "international law" sets it apart as an "outlaw state," and therefore a nation to be punished by the "international community." That may be the case for Iraq, or some other formerly Third World, now emergent, nation. But what of a Superpower, a First World nation; like - the U.S.A.?

Recently, a Paraguayan citizen, Angel Breard, held on an American Death Row in Virginia, became a test case ...

No Interlocutory Appeals in Decree Terminations

The court of appeals for the Sixth
circuit held that it lacks jurisdiction to hear interlocutory appeals in motions to terminate consent decrees. In 1984 the United States sued the state of Michigan over unconstitutional prison conditions. The lawsuit was settled with a consent decree where the state of Michigan agreed to improve numerous conditions of confinement. In 1996 the PLRA was enacted and 18 U.S.C. § 3626 provides for the termination of all prospective relief entered without a court finding that the relief was narrowly drawn, extends no further than necessary to correct the violation of the federal right and is the least intrusive means necessary to correct the violation of the federal right.

The state moved to terminate the decree. 18 U.S.C. § 3626(e)(2) provided that prospective relief will be stayed thirty days after a motion to terminate is filed. [This has since been changed to 60 days.] The district court found the stay provision unconstitutional because it couldn't decide the motion in 30 days. The district court held that an evidentiary hearing was needed to determine if prospective relief was necessary under 18 U.S.C. § 3626(b)(3) and the U ...

PLRA Three Strikes Ruling Vacated

In the February, 1997, issue of PLN we reported Lyon v. Vandekrol , 940 F. Supp. 1433 (SD IA 1996) where a federal district court held that 28 U.S.C. § 1915(g), section 804 of the PLRA, violates the equal protection clause of the U.S. constitution. Section 1915(g) denies in forma pauperis status to prisoners that have had three or more lawsuits dismissed as frivolous, malicious or for failing to state a claim. Everett Lyon, an Iowa state prisoner, attempted to file suit with IFP status. Lyon had previously filed 12 suits while in prison, four of which were dismissed as frivolous. At the time he filed this suit Lyon had $138 in his prison trust account; $65 in his prison savings account and was earning $67 a month in prison wages. The only exception to § 1915(g) for prisoners seeking IFP status is if they file suit claiming they are in imminent danger of serious physical harm, otherwise they cannot file suit unless they pay the full filing fee.

The court of appeals for the eighth circuit dismissed the appeal and remanded the case. The court noted that every circuit court to examine the PLRA's IFP ...

Consent Decree Termination Upheld

In the June, 1997, issue of PLN we
reported Inmates of Suffolk County Jail v. Sheriff of Suffolk County , 952 F. Supp. 869 (D MA 1997) in which a federal district court in Massachusetts upheld 18 U.S.C. § 3626, the PLRA provision which allows for the immediate termination of detention facility consent decrees. The case involves the long running efforts of the Suffolk County sheriff to avoid complying with a consent decree he signed governing the population and conditions at the jail. In granting the sheriff's motion to terminate the decree under the PLRA the district court affirmed the statute's constitutionality. The court of appeals for the first circuit affirmed.

The appeals court opinion, written in the literary style of judge Selya, begins with the understatement that "the PLRA is not a paragon of clarity". n Construing congressional intent the court noted there is "little room for doubt that congress intended the PLRA as a last rite for those consent decrees that are incapable of surviving the rigors of § 3626(b)(2)." The court then went on to reject arguments that § 3626 violates the separation of powers doctrine; the right to due process and equal protection of ...

Seventh Circuit Upholds Constitutionality of Physical Injury Requirement

The court of appeals for the seventh circuit upheld the constitutionality of section 803(d) of the Prison Litigation Reform Act (PLRA) which limits money damages to only those cases involving physical injury. Several Indiana state prisoners filed suit under the Eighth amendment claiming mental and emotional injuries stemming from exposure to asbestos in a prison kitchen. None of the plaintiffs had developed physical symptoms resulting from the asbestos exposure at the time the suit was filed.

The district court dismissed the suit on the pleadings. The court held that section 803(d) of the PLRA, codified at 42 U.S.C. § 1997e(e) barred the claim for damages. See: Zehner v. Trigg, 952 F. Supp. 1318 (SD IN 1997). [PLN, Aug. 1997] Section 1997e(e) states: "No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."

The court of appeals affirmed the district court ruling. At the outset the court notes that § 1997e(e) probably does not apply to cases that were pending at the time of the PLRA's enactment on April 26 ...

DARK NIGHT Field Notes

DARK NIGHT field notes

DARK NIGHT field notes is a most excellent quarterly magazine chronicling progressive struggle. Why I had never been exposed to this zine before, I don't know. Issue #11 (its focus on prison struggle) found its way to my desk, and after reading it I knew I wanted more and I think you will, too.

Issue #11 has an interview with Geronimo Ji Jaga, COINTELPRO PP who recently gained his "freedom" from prison after 27 years or as Geronimo clarifies: "Freedom is relative... We are all still incarcerated even though I'm out here on the other side of the wall." Superb interview.

Another article, "Giving Voice to the Voiceless", chronicles the December 7, 1997, International Tribunal on the Case of Mumia Abu-Jamal, providing one of the clearest overviews of Mumia's case I have yet seen. This article also presented an excellent primer on the important role that International Tribunals play in the struggle for justice, and a historical overview of other Tribunals.

Other articles in issue #11 include: Prison Labor, Slavery & Capitalism; Bear Lincoln Speaks Truth to Power; Snapshots from Prison Privatization, and; Voice from a Mexican Prison: Interview with Rafael Lopez Santis.

There ...

Prisoner 'Stress Response Syndrome' Described

The Prison Litigation Reform Act (PLRA) and related court rulings have raised imposing obstacles to prison civil rights litigation, effectively gutting class action claims against overcrowding and other conditions of confinement. Increasingly, courts require a showing of how such conditions are violating the constitutional rights of individual plaintiffs, rather than how they might impact the rights of a prisoner class.

With Lewis v. Casey , 116 S.Ct. 2174 (1996) [ PLN Vol. 7, No. 8], the Supreme Court further eviscerated the ability of pro se prisoners to effectively litigate civil rights actions. Consequently, in order for prisoner plaintiffs to prevail in constitutional challenges to conditions of confinement, they must increasingly rely on the expertise of professional legal assistance, resources, and witnesses.

One resource that may help define the consequences to individual prisoners of overcrowding, harsh conditions, and inadequate mental health care is: Trauma and its Sequelae in Male Prisoners: Effects of Confinement, Overcrowding, and Diminished Services , Terry A. Kupers, M.D., American Journal of Orthopsychiatry , 66(2) (April 1996)

Dr. Kupers is a professor in the Graduate School of Psychology at the Wright Institute, Berkeley, CA. He was also a consultant for the HRW team that wrote Cold Storage: Super-Max- imum ...

Truth Takes a Holiday in Virginia DOC Press Release

Virginia state prisons chief Ron Angelone announced in July, 1997, that he would drop his blanket ban on reporters entering prisons for face-to-face interviews with prisoners, but said reporters would still not be allowed into 10 of Virginia's 52 state prisons.

"I remain steadfast in my contention," said Angelone, "that the priority mission of correctional facilities will invariably take precedence over any and all other issues..." including, apparently, the "issue" of accurate reporting by the press of DOC bungling and mismanagement.

Angelone steadfastly maintains iron-fisted control over the flow of information out of his gulags. State DOC employees who speak to the press are severely disciplined. All inquiries are, instead, to be directed to Angelone's office.

Contrast the Richmond Times-Dis- patch account of events (spoon-fed to them by Angelone's spin doctor) to those same events described by a VA prisoner who was there.

Times-Dispatch (TD): Virginia Department of Corrections officials have fixed an electrical problem that caused 21 segregation cell doors to open unexpectedly on Oct. 9, 1997, at the Keen Mountain Correctional Center.

PLN Source (PS): The "malfunction" was actually two new guards who didn't know what they were doing. The first new guard was ...

Behind Closed Doors: Struggle in Washington IMU's

In the "Intensive Management Unit" at the state prison in Shelton, WA a man who looks to be in his 50s is wearing an orange plastic rain jacket and pacing the parameter of the "yard." The yard is really just a 30-by-40-foot cement room with metal screen for a ceiling, but it's the only break most IMU prisoners get from the 23 to 24 hours a day spent alone in tiny cells. This man, with his wild graying hair and empty eyes, looks like the caged zoo animals whose mental state makes people shy away.

There are 124 cells and six yards in the Shelton IMU, one of three high-security units in the state. And as our entourage of two guards, the assistant to the warden, and me makes its way through this clamped-down atmosphere, rows of men peer out through the long, thin windows of their cells. Some put their hands against the safety glass and call out. One screams, "Help me!"

The Department of Corrections calls IMUs "prisons within prisons"--extremely restrictive units housing prisoners deemed unfit for "general population." Some have committed violence against other prisoners or guards. Some are guilty of strings of small infractions ...

Former Texas Prison Chief Indicted

The former head of the Texas prison system has been indicted on six counts of federal bribery, conspiracy, fraud and money-laundering charges stemming from his role in a shady multi-million dollar contract to purchase a soy-based meat substitute to feed Texas prisoners. [The VitaPro scandal is discussed in detail in the July, 1995 and May and Aug. 1996 issues of PLN ]

James A. "Andy" Collins was accused in the indictment of taking $20,000 in "consulting fees" from VitaPro Foods, Inc. of Quebec, the company that manufactures the powdery soy supplement and secured the $33.7 million dollar contract to sell it to the Texas Department of Criminal Justice (TDCJ).

Also named in the indictment is Yank Barry, VitaPro's chief executive officer, who is charged with conspiring to hide illegal payoffs to Collins by channeling them through a dummy company set up by Collins for that purpose.

Collins has pleaded not guilty. Barry, 49, remains in Canada and faces possible extradition. The indictment, handed down by the grand jury on November 15, 1998, was kept sealed until late March in the hopes that Barry might be apprehended in the U.S.

If convicted, both men could face up to ...

Eight California Prison Guards Indicted

by W. Wisely

It's going to be duck-hunting season," said one of the Corcoran prison guards who staged fights between prisoners in rival gangs just before Preston Tate was shot and killed according to Department of Corrections reports. Now eight Corcoran guards, including a lieutenant and two sergeants, are under federal indictment for violating the civil rights of several prisoners and obstructing justice by participating in a conspiracy to cover up their acts.

"It's like a ton of bricks has been lifted from me," said Bill Tate, Preston's father, in an interview published February 27, 1998, in the Orange County Register . "I always had faith in the Justice Department and the FBI, but it took such a long time," Tate continued. "Right now, I just feel blessed. I feel that Preston is smiling out from the grave, yet I feel that he is here, too." Tate, whose 25 year old son was shot to death by a guard April 2, 1994, has a pending wrongful-death lawsuit against the state and prison officials.

"It appears the fights were staged, and even provoked, for the amusement of correctional officers or as retribution against inmates," said James Maddock, FBI special ...

Presence of Prison Rape in Utah Denied

Early in 1996 Utah's Legislature mandated that state prison hospitals achieve national accreditation. Consequently, the National Commission on Correctional Health Care (NCCHC) was given a three-day review of Utah prison medical records and a tour of Utah prisons, including interviews with prisoners and staff. Accreditation is based on a multiplicity of factors and if, upon review, a sufficient combination of them reflect substandard conditions, it is not granted.

The review consists largely of "self reported" information, however, according to NCCHC President Edward A. Harrison, only a "sampling of medical records" is consulted. Not surprisingly, therefore, not a single case of rape or sexual abuse was found. Accordingly, in June of 1996, the NCCHC accredited the state's Draper and Gunnison prison hospitals.

"They absolutely are lying," says Salt Lake City Attorney Ross Anderson. "They don't want the public to know what's going on in the prisons."

Anderson represented the mother of a mentally ill prisoner who died as a result of being strapped into a restraining chair. Prisoners, ex prisoners and attorneys confirm Anderson's accusation, according to Greg Burton writing in the Salt Lake Tribune last November. "What's going on says a group of former ...

New Mexico S.Ct Grants Asylum to Little Rock Reed

Timothy Reed, better known as Little Rock Reed, fled from Ohio parole authorities in 1993, ending up in new Mexico. Ohio filed extradition papers with New Mexico authorities, expecting Reed to be apprehended and returned to their custody. The New Mexico district court, however, refused extradition in Reed v. Ortiz , No. 94-1 CR Misc., 1995 WL 118952 (NM Dist. Ct., January 20, 1995). On September 9, 1997, the New Mexico supreme court affirmed and granted Reed asylum in New Mexico.

"This case is distinguished from other extradition cases by a unique fact pattern that is supported by compelling evidence," says the court in the opening paragraph of a stunning 51-page ruling.

The court then presents 14 pages of facts, detailing Reed's history of prison writ writing and outspoken advocacy for prisoners' rights-- particularly the "rights of incarcerated Native Americans to practice religious beliefs in prison. The undisputed evidence shows that this advocacy incurred the animosity of prison officials."

The court documents numerous instances of Ohio authorities threatening to revoke Reed's parole unless he ceased writing published articles and presenting speeches. "The record shows that Reed was a source of aggravation to Ohio prison officials because of his criticism ...

FBI Law Enforcement Sting Nabs 53 in Ohio

FBI Law Enforcement Sting Nabs 53 In Ohio

In February, 1998, a federal grand jury indicted 53 Cleveland area people as a result of an FBI sting operation where federal agents posed as drug kingpins and hired police, county jail guards, a deputy sheriff, and several "law enforcement imposters" to protect large drug shipments.

The sting operation began in October 1996 when an FBI undercover agent allegedly bought crack cocaine from Michael W. Joye, 29, a Cuyahoga County jail guard. The undercover FBI agent then used Joye to recruit 43 other law enforcement types to act as "security guards" to protect shipments of marijuana and what turned out to be phony cocaine. Nine others indicted either posed as police officers or were brought in as partners of the indicted cops.

All but two of the 53 were arrested in January 1998. The indictments were handed down later, after a grand jury reviewed video and audio tapes of meetings where FBI agents and unwitting law enforcement types negotiated the terms of the cops' illegal moonlighting security jobs.

All 53 were indicted on charges of conspiracy to distribute cocaine. Those charged include: 25 Cuyahoga County jail guards, 8 Cleveland police officers, 6 ...

High-Tech Vendors Penetrate Prison Market

by W. Wisely

Ascanner that detects a heartbeat fifteen feet underground, a razor blade that crumbles when tampered with, clear plastic televisions and radios. Sound like some high-tech future? Guess again. These are just a few of the new technologies being used and considered by the California Department of Corrections Technology Transfer Committee for the state's prison system.

The TTC was founded in 1982 and evaluates new technology for use in California prisons. The committee is composed of prison wardens, administrators, representatives from the California Board of Corrections, Prison Industry Authority, California Youth Authority, Department of General Services, Federal Bureau of Prisons, California Highway Patrol, Department of Justice, and Sandia National Laboratories.

In September, 1997, the TTC shared information with all 50 states at the National Institute of Justice conference. They provide evaluations and test results to the American Correctional Association, the National Institute of Corrections, and the National Institute of Justice, to name but a few. And the TTC does much more than merely evaluate existing new technology. They dictate the design to manufacturers.

At a two-day meeting in July, 1997, TTC members watched presentations by several companies on ground penetration radar, stab-proof cloth vests, cell phone detection ...

$350,000 Awarded in Ohio Prisoner Death

$350,000 Awarded In Ohio Prisoner Death

Sybil Norris, 29, was doing a six-month stretch for shoplifting at the Ohio Reformatory for Women when she died, needlessly, of an asthma attack.

Two years later, in December 1997, the Ohio Court of Claims awarded $350,000 ($150,000 for pain and ...

California Whistleblowers Silenced, Punished

Two California prisoners, suspected of tipping reporters to a controversial story inside the R.J. Donovan Correctional Facility near San Diego, were placed in administrative segregation (aka "the hole") and later transferred to other prisons.

A San Diego television station reported in September, 1997, that workers in the prison's CMT Blues clothing manufacturing facility had taken materials imported from Honduras and sewn "Made in U.S.A." labels on them. Shortly thereafter, prison officials placed prisoners Charles Ervin, 39, and Shearwood Fleming, age not available, into segregation for "attempting to impugn the credibility" of the prison industries program "by contacting the local news media," according to documents obtained by sources close to the prison.

Prison spokesman J.P. Tremblay said of the U.S.A. labels that prisoners were being taught to sew with scrap materials and that none of the products left the prison. And Lt. Terry Hill, spokesman for the Donovan prison, said Ervin and Fleming were isolated and transferred for their own safety.

"The inmates' jobs at CMT Blues are considered very nice," Hill said. "They get paid the minimum wage, and other inmates who suspected these two individuals were concerned that their employment may be ...

Wisconsin Joins the Control-Unit Fraternity

Wisconsin Joins The Control-Unit Fraternity

On the morning of December 17, 1997, as thirty protesters gathered in a parking lot in Boscobel, a small farm town isolated in the rural southwest corner of Wisconsin, police squad cars wheeled into the lot. Sheriff's deputies informed the demonstrators that signs and banners would not be permitted at the groundbreaking ceremony for the state's $44 million supermax prison.

"That's a clear violation of our first amendment rights," said Jackie Austin, head of Wisconsin Citizens United for the Rehabilitation of Errants. Department of Corrections officials even tried to get the police to evict protesters who were dressed in mock prison outfits, with handcuffs and waist chains. The DOC "just didn't want any visible signs of opposition as the governor declared it to be a great day for the people of Wisconsin while the TV cameras rolled," Austin said.

Correctional administrators claim that the control-unit facility, where prisoners will be subjected to conditions Amnesty International has condemned and Human Rights Watch has found in violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners, will house only those prisoners who endanger prison employees and other convicts. "We're ...

Former Arizona Governor Sentenced


In September, 1997, Republican Governor J. Fife Symington, III, was convicted in federal court of seven counts of fraud related to fabrications and misrepresentations he made on financial statements in securing loans. Following his conviction, he resigned as Governor.

On February 2, 1998, Symington was sentenced by Federal Judge Roger G. Strand to 30 months in federal prison, five years probation and a $60,000 fine. He must also repay millions of dollars to investors.

Symington "choked up" as he read a prepared statement to the judge begging for mercy, said courtroom observers. After the hearing, a large crowd booed and heckled Symington as he postured defiant in front of microphones on the courthouse steps.

This was not the predominantly white ruling class crowd who once cheered him at a $500-a-plate dinner as he promised to turn Arizona's prisons into a "hellhole."

One woman threw a handful of dirt on the former Governor. He was forced to retreat from the microphones. It was too early -- or too late -- for redemption.

He must serve 85% of his sentence because of a federal law similar to one he adopted and forced down the throats of Arizona prisoners, along with chain gangs ...

Another Florida Gain-Time Statute Unconstitutional

In a 5-2 decision the Supreme Court of Florida held that a recently enacted statute requiring the mandatory abrogation of state prisoners' right to earn "incentive gain-time"1 for up to six months following prison disciplinary convictions, was an unconstitutional ex post facto law, as was the administrative promulgated to implement it.

During the 1995 legislative session, as part of Florida's wholesale effort to eliminate early release, the state enacted § 944.281 of the Florida Statutes. This law bars any state prisoner found to have violated any state law or any rule or regulation of the prison system or of any individual prison, from earning incentive gain-time for up to six months following the conviction. This law took effect on October l, 1995, and applied to violations occurring on or after January 1, 1996.

Pursuant to §944.281 the Florida DOC adopted Fla. Admin. Code r. 33-11.0065(5)(a)1.-5. This rule implemented the statute by imposing a mandatory three month suspension of the right to earn incentive gain-time on those prisoners who were punished by forfeitures of up to 30 days accumulated gain-time following a disciplinary conviction. Prisoners punished by forfeitures of gain-time in excess of ...

Transgender Treatment Questioned

The court of appeals for the seventh circuit issued a ruling that prisoners suffering from gender dysphoria (i.e., transexualism) are not entitled to curative treatment under the eighth amendment. The ruling is extremely unusual in that it comes as an "advisory opinion." A long standing judicial principle is that federal courts are only supposed to rule on those issues presented to them for resolution in "actual controversies."

Tasha Maggert, an Indiana state prisoner, filed suit claiming his eighth amendment rights were violated by a prison's failure to give him hormonal treatment for his transsexualism. The district court dismissed the suit because Maggert produced no expert testimony that he actually suffered from the condition. In three sentences the court of appeals affirmed that ruling.

The appeals court then went on to discuss the issue in great detail, even though it was wholly irrelevant to its disposition of the case on the merits. The court stated: "Although gender dysphoria is a rare condition, it has been invoked in enough prisoner cases to give rise to the term `the jurisprudence of transsexualism."' The court gives a detailed description of the underlying medical condition and treatment for it, as well as citing ...

Sexual History Evidence Limited in Rape Suit

Afederal district court in New Mexico held that private prison officials were limited in what questions they could elicit about a prison rape victim's sexual history. Tanya Giron is a prisoner who was forcibly raped by private prison guard Danny Tor2ez while in a Corrections Corporation of America (CCA) facility in New Mexico. During discovery the defendants asked Giron to list all persons with whom she has had sex after the rape occurred; that she describe the manner, type, date and location of all sexual contacts and other, similar information. Giron refused to answer the interrogatories and the defendants moved to compel answers.

The court sustained Giron's objections. The court held that Fed.R.Evid. 412 informs the proper scope of discovery in limiting inquiry into the sexual past of sexual assault victims in criminal or civil proceedings. Torrez argued he shouldn't be held liable for past injurious sexual contacts Giron may have had. The court agreed, but held that inquiry into her sexual past would be limited to only those contacts that were violent or damaging.

"Defendant bears the burden to establish that the evidence he seeks is probative and outweighs the danger of harm to ...

Hepatitis C Epidemic Threatens California Prisoners

Hepatitis C, a potentially deadly strain of liver disease, is spreading out of control through the California prison system. Blood tests conducted on 4,764 incoming prisoners for a three month period in 1994 showed that 41 percent were infected with the disease. Unlike some other forms of hepatitis, there is no vaccine for hepatitis C.

The California Department of Corrections demanded $2 million dollars from the state Legislature "to conduct further studies and treat the disease." But, in November, 1997, the Wall Street Journal revealed prisoncrats were forced to quietly return $1.8 million of those funds because the study was not finished on time and the promised medical treatment was never provided.

Adding to the problem, tracking and treating infected prisoners is all but impossible as they move from prison to prison because the Department doggedly hangs onto an antiquated and ineffective paper filing system for the medical record's of the state's 155,000 prisoners. There is little or no coordination between the 33 prisons, dozens of camps, and parole violator facilities. The outbreak may pose a threat to people outside as well.

Most people in prison are eventually released back into the community. Yet, the ...

Pennsylvania Consent Decree Clarified

Afederal district court in Pennsylvania held that a consent decree was applicable only to prisoners confined to six prisons named therein. The court further held that violations of the decree could be considered by the court in contempt proceedings. However, the court would only entertain institution- or system-wide violations, which may only be brought by motion filed by class counsel, after exhaustion of administrative remedies.

Between 1970 and 1971, four related cases were filed challenging the constitutionality of conditions and policies at several PA state prisons. In 1978, after the suits were consolidated and certified as a class action, the parties entered into a consent decree. This opinion addresses numerous pending motions, most filed pro se, involving four procedural issues.

The first issue involves the scope of the plaintiff class. Insofar as the prison system had expanded considerably over the past twenty years, a number of prisoners confined to newer facilities had asserted claims with respect to violations of the decree. The court concluded that, by the terms of the consent decree, the plaintiff class is limited to prisoners confined to Graterford, Dallas, Huntingdon, Muncy, Pittsburgh and Rockview state prisons.

Over the years numerous prisoners filed motions alleging violations of ...

8th Circuit Orders BOP Sentence Reductions

Joining the third and ninth circuits, the eighth circuit court of appeals held that a BOP program statement denying sentence reductions to non violent drug offenders was contrary to the purpose of 18 U.S.C. § 3621(e)(2)(B), an early release statute which allows a one year sentence reduction to non violent offenders who complete a 500-hour drug treatment program. BOP Program Statement 5162.02 section 9, stated that prisoners who received sentencing enhancements based on weapons possession were to be denied sentence reductions as "violent offenders," regardless of the underlying offense they were convicted of. Several BOP prisoners who had completed the drug treatment program and had been denied the sentence reduction on the sole basis of the BOP program statement classifying them as "violent offenders" due to a weapon enhancement at sentencing sought habeas relief in the district court which was denied.

The court of appeals reversed and remanded. The court held that the BOP's decision to deny the sentence reduction was judicially reviewable. The court held the BOP exceeded its statutory authority by considering sentencing enhancement factors. The court held that section of the program statement "constitutes a legislative rather than interpretive rule, because ...

Seg Conditions Analyzed for Sandin Purposes

Building on prior recent decisions, the court of appeals for the second circuit held that district courts must analyze segregation conditions when determining whether prisoner plaintiffs have a federal due process liberty interest in remaining free from such confinement. Thomas Wright, a New York state prisoner, was infracted for rioting and destroying prison property. At the hearing Wright was denied witnesses and an opportunity to present a videotape of the incident that would exculpate him. Wright was found guilty and sentenced to a loss of good time and privileges and to 545 days in segregation. Wright filed an Article 78 petition in state court which was granted. A second hearing was held and Wright was again found guilty and punished. Wright filed a second Article 78 petition, which was again granted. This time the state court did not remand for a new disciplinary hearing because Wright had already spent 288 days in disciplinary confinement.

Wright then filed a lawsuit under 42 U.S.C. § 1983 seeking money damages for the violation of his federal due process rights. Eventually the district court dismissed the suit by holding that Wright's 288 days in segregation did not constitute an "atypical and significant ...

News in Brief

AZ : On March 17, 1998, Michael Garvey, executive director of the Arizona Board of Executive Clemency was fired for sexually and racially harassing employees. Francine Williams, a former board employee, filed suit claiming Garvey had repeatedly and frequently made sexually offensive and suggestive remarks. Williams, who is Jewish and has two children of African-Jamaican descent, claims Garvey told her one of her sons is mentally disabled because he is "part nigger." No state officials would comment on Williams' lawsuit.

CA : On April 15, 1998, Michael Cherveny escaped from the Deuel Vocational Institute in Tracy by hiding in a laundry truck. Cherveny was serving a life sentence as a three strikes offender. Prisoner clothing is transported from Deuel to a nearby women's prison to be washed. Cherveny worked in the prison laundry room. The escape was discovered when guards at the women's prison noticed an 18" hole in the roof of the laundry truck.

CA : Since 1993 when the CDC enclosed 25 of its 33 prisons with high voltage electrical fences, the prison system claims to have eliminated 700 positions for tower guards. According to the U.S. Fish and Wildlife Service, the fences have also eliminated more than ...

Right to Psychiatric Care Clearly Established

The court of appeals for the sixth circuit held that prisoners' right to psychiatric care was clearly established and prison psychiatrists who failed to properly treat a suicidal prisoner were not entitled to qualified immunity from money damages. Anthony Wade was a mentally ill Michigan state prisoner who committed suicide. Prior to his successful suicide attempt Wade had tried to kill himself by overdosing on Thorazine tablets while he was a pre trial detainee. A pretrial psychiatric exam showed he was extremely depressed with suicidal thoughts. He was prescribed liquid anti- depressants.

Upon arrival in the prison system Wade was seen by several prison psychiatrists who noted his poor mental state, ongoing depression and suicidal thoughts. Three months later Wade killed himself by overdosing on pills prescribed for his depression. Wade's estate filed suit claiming various prison psychiatrists had shown deliberate indifference to his serious psychiatric needs. The district court denied the defendants' motion for summary judgment, holding that disputed issues of genuine fact required a trial to resolve. The defendants then sought summary judgment claiming they were entitled to qualified immunity from money damages. The court denied the motion, holding that prisoners had a well established right to ...

Gender Motivated Violence Act

In the December, 1994, issue of PLN we reported the enactment of the Gender Motivated Violence Act (GMVA), 42 U.S.C. § 13981 and suggested that prisoners and their attorneys consider using it in civil litigation for money damages. To date it does not appear that any prisoners have used the Act and the purpose of this article is to remind readers of its existence.

The GMVA provides a private cause of action for all persons who are the victims of gender motivated violence. The law does not apply to "random acts of violence unrelated to gender." Proof of gender motivation is based on Title VII standards for race and gender discrimination lawsuits. It is not necessary for criminal charges to have been filed against an abuser before a GMVA suit is filed. Both men and women can sue under the GMVA.

The use of the GMVA is readily apparent in lawsuits involving the rape or sexual assault of prisoners. Because the GMVA has its own attorney fee award provisions it is not subject to the attorney fee cap of the Prison Litigation Reform Act. The GMVA standard of proof is lower than that required in eighth amendment litigation. Nothing ...

Injury Required to Enforce Grand Jury Law

The court of appeals for the District of Columbia circuit held that while individuals can seek judicial enforcement of a law requiring that evidence be presented to a grand jury, the party seeking enforcement must allege injury in order to have standing. Federal prisoners Joe Mohwish and Donald Sargeant sent various allegations of wrongdoing by Federal Prison Industries, AKA UNICOR, [ PLN , June and Aug. 1994] to the U.S. attorney general's office requesting that, pursuant to 18 U.S.C. § 3332 the evidence be presented to a grand jury. After receiving no reply Mohwish and Sargeant brought three mandamus actions in U.S. district court in the District of Columbia to compel the U.S. attorney's office to present the evidence to a grand jury. The district court dismissed the actions holding that private parties lack a judicially cognizable interest in the prosecution of another, thus the prisoners lacked standing.

The court of appeals affirmed. 18 U.S.C. § 3332 states that the U.S. attorney "shall" present to the grand jury information provided by "any person." Two district courts have held that any person has standing to enforce this duty. Article III of the U.S. constitution ...

Washington Child Support Minimum Struck Down

The Washington state court of appeals, Division I, held that RCW 26.19.065, which requires a statutory minimum child support payment of $25 per month, violates federal law and the supremacy clause. David Gilbert, a Washington state prisoner, was court ordered to pay $25 a month in child support despite his objections that he was indigent due to being in prison and the amount was excessive. The appeals court reversed and remanded.

The federal Child Support and Establishment of Paternity Act, 42 U.S.C. § 667(b)(2), requires that states receiving federal funds allow a rebuttable presumption in judicial or administrative proceedings for the award of child support. RCW 26.10.065 mandates a support order of at least $25 for parents with less than $600 a month in combined, net income.

In a previous, unpublished, ruling, a federal court in Tacoma, WA, held that 42 U.S.C. § 667 applied to administrative child support orders but did not apply it to judicial orders, as in this case. See: N.R. v. Soliz , Case No. 933-5338B (WD WA 1994). The state appeals court brought judicial enforcement orders into line with the same standard applied to administrative enforcement orders ...

Criminal History Inadmissable for Impeachment

In a ruling useful to prisoner litigants whose claims go to trial, a federal district court in New York gave a detailed discussion on the limits of using prior criminal history to impeach the testimony of felon witnesses. While not involving prison or jail litigation per se, the problem is commonly faced in prison and jail litigation where the plaintiff almost invariably has a criminal record.

William Daniels filed suit against city police that beat him. As the case was proceeding to trial he filed a motion in limine pursuant to Fed.R.Evid. 403, 404, 608 and 609 to exclude his extensive criminal history from trial. The court granted most of the motion.

The court held that misdemeanor convictions involving convictions for escape, resisting arrest, disorderly conduct, possessing stolen property and unauthorized use of a vehicle were inadmissible for impeachment purposes under Fed.R.Evid. 609.

Rule 609 governs the use of criminal convictions for impeachment purposes in civil actions. "Evidence that a witness has been convicted of a crime involving `dishonesty or false statement' must be admitted regardless of the severity of the punishment or any resulting punishment." Criminal convictions more than ten years old are usually not ...


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