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Prisoner Education Guide

Prison Legal News: September, 1998

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Volume 9, Number 9

In this issue:

  1. U.S. Supreme Court Rules That ADA Applies to Prisoners (p 1)
  2. U.S. Supreme Court Reverses Reed (p 2)
  3. Zero Tolerance Drug Policy in New Jersey (p 3)
  4. Cases of Interest From the U.S. Supreme Court's 1997-98 Term (p 3)
  5. Allan Ellis' Federal Prison Guidebook (p 4)
  6. From the Editor (p 4)
  7. The Razor Wire (p 5)
  8. Briefs of Leading Cases in Corrections (p 5)
  9. Cigarette Health Hazards (p 5)
  10. Connecticut Prisoner Rights (p 5)
  11. An End to Silence (p 5)
  12. Criminal Law (p 5)
  13. Pro Se Tips and Tactics (p 6)
  14. Critical Resistance Conference (p 7)
  15. Struggling Against the Death Machine (p 8)
  16. Whitewash in Greene County (p 9)
  17. Fee Payment Orders Not Immediately Appealable (p 10)
  18. Administrative Exhaustion (p 10)
  19. CA Death Row Decree Ended (p 10)
  20. Three Strikes Doesn't Apply to Pending Cases (p 11)
  21. Sixth Circuit Requires Administrative Exhaustion (p 11)
  22. Court Refunds PLRA Deferred Fee Overpayment (p 11)
  23. Administrative Exhaustion Still Required (p 11)
  24. ADA/RA Apply to FL Prison Gain Time Issues; Suit Settled (p 12)
  25. ADA Roundup (p 12)
  26. ADA and RA Suits Not Barred by 11th Amendment (p 12)
  27. ADA Applied to AR Jail (p 13)
  28. CA ADA/RA Injunction Affirmed (p 13)
  29. ADA Applies to State Prisons (p 14)
  30. Illinois Suing Prisoners for Cost of Incarceration (p 15)
  31. California Guard Gets Prison in Child Molester Attacks (p 15)
  32. Tennessee Prison Privatization Bill Fails to Pass (p 16)
  33. MI Prison "Fee" Law Preempted by ERISA (p 17)
  34. Bivens Action is Not Time Barred When in Compliance With Rule 3 (p 18)
  35. Kansas Prisoners Entitled to Notice of Prison Rules (p 19)
  36. Two Year Limitations on Illinois § 1983 Suits (p 19)
  37. Dismissal for Incompetent Appointed Lawyer Reversed (p 20)
  38. $13,501 Jury Award in Seg Case Affirmed; New Trial Denied (p 20)
  39. Publications Lawsuit Settled in Alabama (p 21)
  40. Strip Searched Massachusetts Women Settle Suit for $80,000 (p 21)
  41. AEDPA Successive Petitions Clause Not Applicable to Disiplinary Hearings (p 22)
  42. Washington Felon Voting Suit Proceeds (p 22)
  43. No Immunity for Abestos Exposure; Toxic Water Claim Remanded (p 23)
  44. News in Brief (p 24)
  45. Legislative Immunity For Local Jail Budget Votes (p 25)
  46. $1,000 Awarded in Denial of Dental Care in TX (p 25)

U.S. Supreme Court Rules That ADA Applies to Prisoners

By Paul Wright

On June 15, 1998, a unanimous United States supreme court held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, applies to prisoners. In doing so the court resolved a split between the circuits and affirmed a third circuit ruling.

In 1990 congress enacted the ADA to eliminate discrimination against the disabled. Title II of the ADA prohibits public entities from discriminating against a "qualified individual with a disability" because of the disability. PLN has provided extensive, detailed coverage of prison and jail ADA litigation since the law was first enacted. The importance of the ADA to prisoners cannot be overstated. As the nation's expanding prison population gets sicker and older, the ADA will help eliminate some of the discriminatory barriers impacting prisoners. The ADA has already been used successfully to secure injunctive relief for HIV+, deaf, wheelchair bound, quadriplegic and blind prisoners and pretrial detainees. It has also resulted in significant damage awards. [See, PLN , March, 1996. Love v. McBride , 896 F. Supp. 808 (ND IN 1995)]. However, due to a circuit split these successes were limited to only some parts of the country.

In the April, 1998, issue of PLN we ...

U.S. Supreme Court Reverses Reed

In the July, 1998, issue of PLN we reported Reed v. State Ex Rel Ortiz , 947 P.2d 86 (NM 1997) where the New Mexico state supreme court affirmed a lower court ruling that granted asylum to former prison activist Timothy "Little Rock" Reed. Reed was an Ohio parolee who fled to New Mexico after Ohio parole officials threatened to revoke his parole for speaking out on civil and human rights violations in the Ohio prison system. The New Mexico courts denied Ohio's extradition request, finding Reed had supplied ample evidence he was not a fugitive from justice but a "refugee from injustice" in the words of the court.

The U.S. supreme court granted certiorari and in a per curiam opinion issued on June 8, 1998, reversed and remanded. Forty states had filed amicus briefs with New Mexico asking the supreme court to reverse the New Mexico supreme court's ruling.

The supreme court held that Article IV of the U.S. constitution and the Extradition Act, 18 U.S.C. § 3182 leaves to no room for asylum states to refuse extradition requests from other states. Claims relating to what happened in the demanding state must be tried ...

Zero Tolerance Drug Policy in New Jersey

New Jersey Corrections authorities began a "zero tolerance" policy in May, 1998. Under the new policy, prison staff are cracking down on prisoners who use drugs or alcohol by taking contact visits as punishment according to an article published by the Associated Press. In the first week of June, three prisoners were charged with conspiracy to possess marijuana and one prisoner was charged with possession of heroin.

All four of the prisoners charged with drug offenses will receive a disciplinary hearing. If they are found guilty of the charges, they will lose contact visits for at least one year for the first offense. Prisoners found guilty of a second drug or alcohol violation will lose contact visits for the remainder of their sentences.

Beginning in October, as part of the "zero tolerance" program, prisoners in New Jersey will not be allowed to receive packages from outside, except educational, religious, and legal materials. By September 1, 1998, all prisoners in that state will lose personal clothing, and be required to wear state issued uniforms. Similar restrictions are planned or underway in California prisons.

Cases of Interest From the U.S. Supreme Court's 1997-98 Term

Forfeitures: In a federal criminal case the supreme court held that the Excessive Fines clause of the Eighth amendment prohibits "grossly disproportionate" forfeitures of funds. The court held that forfeitures are "fines'' if they are punishment for a crime. The underlying case involved a defendant convicted of taking $357,144 out of the country without reporting it to customs. The district court held that only $15,000 could be forfeited while the government sought to seize the entire amount. The ninth circuit affirmed as did the supreme court. This is the first time the supreme court has applied the excessive fines clause to a forfeiture case. See: United States v. Bajakajian , 118 S.Ct. 2028 (1998).

Parole: The supreme court reversed the Pennsylvania supreme court and held that illegally obtained evidence can be used in parole revocation hearings and the exclusionary rule does not apply. A Pennsylvania parolee's home was illegally searched and weapons were found. The weapons were introduced at a parole revocation hearing. The Pennsylvania supreme court held that illegally seized evidence couldn't be used at parole revocation hearings. See: 698 A.2d 32, 548 PA. 418 (1997). The U.S. supreme court reversed, holding that ...

Allan Ellis' Federal Prison Guidebook

Allan Ellis' Federal Prison Guidebook is a 312 page book that gives a detailed rundown of federal Bureau of Prisons (BOP) facilities. Alan Ellis is a California attorney who specializes in the pre-sentence and post conviction representation of federal prisoners. He is nationally recognized as an expert in this area of law. Ellis wrote the book to answer the questions of criminal defendants facing federal incarceration and to assist lawyers in getting the "best" federal prison for their clients.

The Guidebook carefully explains BOP classification policies and procedures and the importance of the Pre-Sentence Investigation (PSI) report in determining where prisoners are placed. It also discusses judicial recommendations, self surrender and the importance of ensuring inaccurate PSI information is corrected before the BOP receives it.

The essence of the book is, like the title says, a guidebook to all federal prisons. Organized geographically, it gives detailed information about each BOP facility. Each listing provides the facility's address, phone and fax number; its physical location and how to reach it by plane, train, car or bus. The Guidebook lists the facility's history; the judicial district it is in; its security levels; rated and current population levels; staffing level; how ...

From the Editor

PLN 's book, The Celling of America , (TCOA) continues to do well. The first print run of 3,000 copies was sold out by June, less than three months after its official release date of March 1, 1998. All publications that have reviewed TCOA so far have liked it. This includes The Nation, Washington Law and Politics, Z Magazine, The Stranger and quite a few others. The large corporate media have, predictably, ignored TCOA. Several college professors have assigned TCOA as a course book for their students. We're very pleased at the response the book has gotten since it is raising awareness around prison issues among people we probably wouldn't reach otherwise.

Speaking of good reviews, I recently had a chance to read the latest catalog from AK Press. It offers the biggest selection anywhere of radical and alternative books on prison issues that I've seen. Many are books that we've reviewed in PLN . They also offer an extensive selection of books on radical politics, armed struggle, cutting edge fiction, economics, sex, drugs and culture, plus political tapes, music and a lot more. It's the hottest catalog I've seen in a long time. While ...

The Razor Wire

The Razor Wire is a 24 page bi-monthly tabloid published by the November Coalition. Its focus is on federal drug policy issues, specifically mandatory minimums and sentencing issues. A grassroots movement, the November Coalition encompasses prisoners, their families, as well as academics and other critics of the drug war. Subscriptions are free to prisoners; $25 a year for non prisoners. Contact: November Coalition, 795 South Cedar, Colville, WA 99114. (509) 684-1550.

Briefs of Leading Cases in Corrections

Briefs of Leading Cases in Corrections is a 268 page book by Rolando Del Carmen, Susan Ritter and Betsy Witt, which gives a summary and synopsis of 113 United States supreme court cases dealing with prisons, jails, probation, parole, the death penalty, sentencing and juvenile justice. The book is well organized with case capsules allowing the reader to quickly determine which cases may be relevant. The book's primary usefulness is to serve as a quick, easy to use reference on supreme court cases governing the above topics. Because only a synopsis of the cases is provided, its usefulness to litigants may be limited. Order from Anderson Publishing, address above.

Cigarette Health Hazards

Cigarette Health Hazards: The January 14, 1998, Volume 279, No. 2, issue of the Journal of the American Medical Association (JAMA) contains an article on the risks of cigarette smoke in increasing the risk of heart disease. Title "Cigarette Smoking and Progression of Athero Sclerosis," by eight doctors, the article reports the results of a study which concluded that active and passive smoking are directly linked to a heightened risk of heart disease and stroke. These risks are heightened for people with diabetes and hypertension. The article provides useful scientific evidence for parties litigating tobacco related issues in prison, especially second hand smoke exposure. Reprints are available from: Dr. George Howard, Dept. of Public Health Sciences, Winston-Salem, NC 27157-1063.

Connecticut Prisoner Rights

Connecticut Prisoner Rights is a brand new 232 page book produced by the Connecticut Civil Liberties Union and the Jerome Frank Legal Services Organization of Yale Law School. A group effort by Peter Stern and numerous other law students and attorneys, the end result is a concise, well organized book that gives a detailed overview of the rights of Connecticut state prisoners under federal and state law. While aimed at Connecticut state prisoners, the book's discussion of prisoners' substantive rights (mail, prison conditions, medical care, etc.) provide a good starting point for people interested in these topics. Every Connecticut state prisoner and their family members and attorneys should have a copy of this book. The book is not a "how to litigate" guide. Copies are $4 for prisoners; $15 for non prisoners and $25 hardbound. Order from: CCLU, 32 Grand St. Hartford, CT 06106.

An End to Silence

An End to Silence: Women Prisoners' Handbook on Identifying and Addressing Sexual Misconduct is a 67 page booklet published by the National Women's Law Center. The booklet is designed for women prisoners, their advocates, prison officials and attorneys. It contains chapters on recognizing misconduct; the physical and emotional effects of sexual misconduct; what to do if victimized; seeking medical help; questions and answers and resources.

The booklet contains interesting information on why women prisoners tend to be more vulnerable to sexual abuse by staff members than other women. In part this is because eighty percent of women prisoners suffer from drug, alcohol and nicotine addictions and have been victimized by sexual and physical abuse in the past. Prison poverty is also cited as a factor. One prisoner said: "If we had more jobs in here, we wouldn't have to have sex just to get a candy bar, some street food or a perm."

While the booklet is a good attempt at addressing this important issue it has several shortcomings. First, it ignores the fact that most prison systems have a lengthy history of ignoring complaints of sexual abuse by prisoners and of systematically retaliating against and punishing those ...

Criminal Law

Criminal Law is an 809 page book designed for criminal justice personnel, judges, prosecutors, police, etc. The book is extremely useful for anyone seeking a basic understanding of substantive criminal law. It does not deal with criminal procedure. With extensive state and federal case citations the book is not intended to be state specific but rather to provide an overview of how criminal law is actually developed and applied. Divided into two parts, the first 546 pages outline principles of criminal liability and elements for the offense for all criminal laws, i.e., property, drug, sex, theft, white collar, moral, violent, etc. The second half of the book contains entire court rulings which discuss judicial analysis of the offenses outlined in the first fifteen chapters. Authored by law professors John Klotter and Terry Edwards, the text is easy to read and very understandable. The book is not designed for lawyers so much as it is for lay people seeking a better understanding of criminal law principles. The book is ideal for prisoners who are interested in the topic and beginning legal studies. To order contact: Anderson Publishing, P.O. Box 1576, Cincinnati, OH 45201-1576. 1-800- 582-7295.

Pro Se Tips and Tactics

Pro Se Tips And Tactics

by John Midgley

Arecent Supreme Court decision, Crawford-EI v. Britton , 118 S.Ct. 1584 (1998), highlights some issues of importance for prisoners doing pro se cases. Crawford-El , which was summarized in detail in the July 1998 PLN , holds that a federal court cannot make a plaintiff who brings a claim that requires proof of bad motive by the defendant to produce "clear and convincing" evidence of bad motive before the case can go forward. In addition, Crawford-El contains information about the important differences between the elements of a claim and the defense of qualified immunity. This column discusses these differences and what they mean for plaintiffs in federal civil rights cases.

1. Qualified Immunity: Motive Irrelevant

As I discussed in some detail in an earlier column, "qualified immunity" is a defense public employees may raise to a claim for damages ( but not to a claim for injunctive relief) in a § 1983 case. In a nutshell, qualified immunity law holds that a public official is not liable for damages for a constitutional violation unless the law existing at the time the defendant acted "clearly established" that the action was unconstitutional. See Crawford-El, 118 S.Ct. at ...

Critical Resistance Conference

Critical Resistance: Beyond the Prison-Industrial Complex is a national conference and strategy session that will occur at the University of California in Berkeley, September 25-27. There is still time for outside activists to register to attend the conference. If you are among the 1.8 million who live behind walls and razor wire, there may be a way for you to also "attend" the conference.

It's not difficult to identify the components of the Prison-Industrial Complex (P-I Complex). Just think about who is happy when more people are behind bars. That's right, the prime suspects are corporations that construct and supply prisons, politicians who propel their careers by advocating harsher "lock 'em up" laws, bureaucrats and guards' unions that increase their power base by brutalizing prisoners and setting them up to fail at going straight, corporations that operate private prisons, industries that rack up huge profits by exploiting prison labor, telephone companies that gouge prisoners' families with grossly inflated collect call charges, (the list goes on).

The P-I Complex runs its cynical game by achieving two critical disconnections: 1. isolating prisoners from each other (no letters between prisoners, no unions, no contact between parolees and ex-felons) and the ...

Struggling Against the Death Machine

Imagine your entire life concentrated within one tiny cage. Twenty-four hours, by seven days, times three-hundred sixty-five. The state of Pennsylvania owns the cage. Everything you own, everything you do, is squeezed into that suffocating space. There is nothing else.

The State has vowed to kill you.

Hope enters the dim world of Death Row through but the slimmest of cracks. There is no reprieve. No mercy. No way to reclaim your life but by winning the appeals lottery.

You may have an attorney, one who cares about your case. But, still, to them it's a job.

To you it is Life. The Case. It fills boxes. Stacked neatly in your cage. They are the prism through which the light of hope shines. Somewhere in those boxes may lie the key. So in the darkest of hours, you search through the transcripts, appeals, briefs, law books, other cases. This is what you do. Because you want to live.

The State Correctional Institution Greene (SCI Greene) houses 1,400-plus Pennsylvania prisoners, 70 percent of them Black, another 6 percent Latino. The prison, which opened in 1994, is located at Waynesburg, just eight miles from West Virginia in a county (in ...

Whitewash in Greene County

"There's an atmosphere created by (prison officials) in which this kind of thing has been going on for years. The attitude is, 'you're in Greene County now, boy.'"
-- Randy Gauger, PA Prison Society, Eayette-Greene Chapter, ( PGH Post-Gazette , 4/26/98)

Ahandcuffed man is bludgeoned, and a nightstick is jammed into his mouth, knocking out a tooth. Into the bloody spittle, a state prison guard dips his finger and traces the letters "KKK." Welcome to Greene County's State Correctional Institution at Waynesburg, Southwestern Pennsylvania.

The above account is taken from news articles on a lawsuit filed by Antonio Noguerol about a beating he sustained in 1996.

Attorney Rita Murillo wrote, of that, and other beatings sustained by her client, that this was not a case of self-defense, but "they were calculated, systemic and sadistic assaults, administered for the purpose of summarily punishing Mr. Noguerol for perceived insolence, and were done to make an example of a 'problem' inmate in order to maintain discipline.` ( PGH Post-Gazette , 4/26/98)

Anticipating the release of a series of articles exposing a campaign of brutality and torture at Greene, the DOC beat the pack announcing an "investigation" of an estimated forty guards ...

Fee Payment Orders Not Immediately Appealable

Fee Payment Orders Not Immediately Appealable: The court of appeals for the Fifth Circuit held that district court orders requiring partial payment of filing fees under the PLRA cannot be appealed prior to the entry of final judgment. Kirk Thompson, a Texas state prisoner, was ordered to pay a $1.80 filing fee after he filed a civil rights suit in federal court. The court later modified the order because Thompson didn't have $1.80, so that the fee could be paid when funds were available.

Thompson appealed. Before enactment of the PLRA orders denying a motion to proceed In Forma Pauperis were an appealable final order. See: Flowers v. Turbine Support Division , 507 F.2d 1242 (5th Cir. 1975).

The court of appeals dismissed the appeal for lack of jurisdiction because the district court's order in this case was not a final judgment. Under the PLRA prisoners are not barred from pursuing a civil action due to poverty. Thus, inability to pay an initial filing fee is not appealable until final judgment has been entered in the case. The court also held that 28 U.S.C. § 1292(a) did not provide authority to hear Thompson's ...

Administrative Exhaustion

Administrative Exhaustion: A federal district court in California held that prisoners filing suit under 42 U.S.C. § 1983 must first exhaust administrative remedies under 42 U.S.C. § 1997e(a). A California prisoner sued for money damages and declaratory relief after he was removed from a prisoner advisory council. He did not exhaust the prison grievance system. The court dismissed the suit without prejudice, holding that even though money damages weren't available in the prison grievance system, the plaintiff was still required to exhaust it. The court distinguished this case from Garrett v. Hawk , 127 F.3d 1263 (10th Cir. 1997), where the tenth circuit held that the non availability of money damages in a prison grievance system meant a prisoner plaintiff did not have to exhaust administrative remedies.

The court noted that while damages weren't available the grievance would not be summarily dismissed. If the grievance were successful and the plaintiff reinstated to the advisory council it would reduce, if not eliminate, the claim for compensatory damages. Readers should note that the issue of administrative exhaustion is far from resolved and varies from district to district and circuit to circuit. To avoid jurisdictional problems prisoners should ...

CA Death Row Decree Ended

CA Death Row Decree Ended: A federal district court in California upheld the constitutionality of 18 U.S.C. § 3626 and terminated a consent decree that governed numerous conditions of confinement for death row prisoners at San Quentin. Shortly after the PLRA's enactment in 1996 the California Department of Corrections moved to terminate the decree. The plaintiffs challenged the constitutionality of § 3626. The court terminated the decree, holding that § 3626 did not violate the constitution. See: Thompson v. Gomez , 993 F. Supp. 749 (ND CA 1997). [Readers should note that in a separate case, Taylor v. United States , 143 F.3d 1178 (9th Cir. 1998) the ninth circuit ruled otherwise and held that § 3626 was indeed unconstitutional.]

Three Strikes Doesn't Apply to Pending Cases

Three Strikes Doesn't Apply to Pending Cases: The court of appeals for the Tenth Circuit held that 28 U.S.C. § 1915(g), which prohibits In Forma Pauperis (IFP) status for prisoners that have had three prior suits dismissed as frivolous, does not apply to cases filed before the PLRA was enacted on April 26, 1996. A New Mexico state prisoner filed suit on April 9, 1996, and was granted IFP status on April 18, 1996. Shortly after the PLRA was enacted the district court found the plaintiff had filed at least three prior suits that were dismissed as frivolous. Acting sua sponte the court dismissed the current suit under § 1915(g).

The court of appeals reversed and remanded. "The district court's decision was in error because the plain language of § 1915(g) restricts a prisoner's ability to 'bring a civil action or appeal a judgment in a civil action' in forma pauperis.... It does not apply to actions pending at the time the PLRA went into effect." See: Garcia v. Silbert , 141 F.3d 1415 (10th Cir. 1998).

Sixth Circuit Requires Administrative Exhaustion

The court of appeals for the sixth circuit ruled that all prisoners filing § 1983 actions involving prison or jail conditions must allege, and prove, they have exhausted administrative remedies and a failure to do so will result in the dismissal, without prejudice, of the lawsuit.

42 U.S.C. § 1997e(a) states that "No action shall be brought with respect to prison conditions under § 1983... by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." Carson Brown, a Michigan state prisoner, filed suit claiming he was denied medical treatment, court access, food and toilet facilities. Brown neither alleged nor showed he had exhausted any administrative remedies, i.e., the prison grievance system. The court of appeals noted the suit was dismissed but did not say why.

The appeals court vacated and remanded the case. "In light of the plain mandatory language of the statute regarding exhaustion of remedies, the legislative purpose underlying the plain language, and the sound policy on which it is based, this court will henceforth require that prisoners filing § 1983 cases involving prison conditions must allege and show that they have exhausted all available state administrative ...

Court Refunds PLRA Deferred Fee Overpayment

A federal court in Illinois has held that neither prison officials nor the courts have the statutory authority to take more than 20% of a prisoner's monthly income to satisfy deferred filing fees under the PLRA. James Higgason, an Illinois prisoner, filed suit and paid a $20.00 partial filing fee. The district court granted Higgason in forma pauperis status under the PLRA and ordered prison officials to withdraw 20% of Higgason's monthly trust fund income until the appellate filing fee of $105.00 was paid. However, prison officials credited Higgason with only $12.00 of the $20.00 partial payment and took more than 20% of his income for about a year.

Higgason filed two motions for sanctions to hold the prison officials in contempt of the court's payment order. The court reviewed the records provided by Higgason. Significantly, the prisons officials did not reply to the motions or clarify the trust fund records. The court construed the records as favorably to the defendants as possible; yet it still found that, in taking $21.62 of the $70.00 yearly trust fund income, prison officials exceeded the 20% authorized under 28 U.S.C. § l915(b ...

Administrative Exhaustion Still Required

Administrative Exhaustion Still Required: A federal district court in New York dismissed a prisoner's suit due to the plaintiff's failure to exhaust administrative remedies under § 1997e(a). Anthony Soto, a New York state prisoner, filed suit claiming prison officials failed to protect him from attack by another prisoner. In his complaint Soto stated he did not exhaust administrative remedies because the issue was not grievable. The court disagreed, stating "All matters relating to prison conditions may be grieved, even claims of failure to protect." The court cites numerous unpublished rulings holding administrative remedies must be exhausted, even if doing so is futile. Soto's suit was dismissed without prejudice even though he had been granted In Forma Pauperis status and was, presumably, now responsible for the filing fee. See: Soto v. Elston , 993 F. Supp. 163 (WD NY 1998).

ADA/RA Apply to FL Prison Gain Time Issues; Suit Settled

ADA/RA Apply To FL Prison Gain Time Issues; Suit Settled

A federal district court in Florida held that the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C § 12101 et seq., and Rehabilitation Act of 1973 (RA), 29 U.S.C. § 701 et seq., apply to prisons and prevent discrimination against disabled prisoners who are unable to work in the awarding of gain time for work participation.

This class action suit involves state prisoners in Florida who, due to physical or mental disabilities, are unable to participate in standard work programs. The eligibility of Florida prisoners for gain time was established by state statute. Fla. Stat. § 944.275(4)(b)( 1995). The statute required prisoners to work, diligently participate in training, use time constructively, or otherwise engage in positive activities to be eligible for gain time.

The DOC rule implementing the statute allowed prisoners medically unable to work to receive gain time; however, the maximum amount allowed for such prisoners was 4 days a month whereas the maximum for other inmates was 20 days a month. Fla.Admin.Code § 3311.0065(2)(1991). In 1994, the DOC rule was amended, removing the 4-day a month limitation, but ...

ADA Roundup

After the U.S. Supreme Court granted review in Yeskey v. Pennsylvania DOC to decide whether the Americans with Disabilities Act (ADA) applied to state prisoners we stopped running articles on the ADA until the supreme court resolved this important question. Below are cases that were decided before Yeskey and they all held that the ADA did apply to prisons and jails.

The Fourth circuit held that the ADA and RA did not apply to state prisons and dismissed a suit by disabled Maryland state prisoners. See: Amos v. Maryland Dept. of Public Safety and Corr. Services , 126 F.3d 589 (4th Cir. 1997). After deciding Yeskey the U.S. supreme court granted review and summarily reversed and remanded the case back to the fourth circuit for reconsideration in light of Yeskey .

ADA/RA Apply To FL Prison Gain Time Issues; Suit Settled

A federal district court in Florida held that the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C § 12101 et seq., and Rehabilitation Act of 1973 (RA), 29 U.S.C. § 701 et seq., apply to prisons and prevent discrimination against disabled prisoners who are unable to work in the awarding of gain time for ...

ADA and RA Suits Not Barred by 11th Amendment

The court of appeals for the ninth circuit held that the eleventh amendment does not bar suits under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, or the Rehabilitation Act (RA), 29 U.S.C. § 794. Developmentally disabled prisoners in California filed a class action lawsuit under the RA and ADA claiming they were discriminated against because of their disabilities. The state filed a motion to dismiss, arguing they were entitled to absolute immunity under the eleventh amendment from suits seeking relief under the ADA and RA. The district court denied the motion. The state then filed an interlocutory appeal, which the appeals court denied.

The eleventh amendment prohibits citizens from suing the states. That immunity can be abrogated by congress or waived by the state. "Here, congress has unequivocally expressed its intent to abrogate the Act. Section 42 U.S.C. § 12202 of the ADA explicitly states, 'A state shall not be immune under the eleventh amendment.' See also Duffy v. Riveland , 98 F.3d 447, 452 (9th Cir. 1996). Similarly, 42 U.S.C. § 2000d-7(a)(1) of the Rehabilitation Act explicitly states, 'A state shall not be immune under the eleventh amendment of the ...

ADA Applied to AR Jail

In the first ruling out of the eighth circuit on this issue, a federal district court in Arkansas held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 and the Rehabilitation Act (RA), 29 U.S.C. § 794, apply to state correctional facilities. John Herndon was a pretrial detainee in the Pulaski County (Little Rock) jail in Arkansas. Herndon has a fused spine and requires mobility aids and various medical devices to have bowel movements, prevent bed sores and otherwise deal with his condition. Herndon filed suit against the jail claiming that conditions there violated the ADA, RA and the fifth, eighth and fourteenth amendments to the U.S. constitution because there were no facilities for disabled detainees.

The jail filed a motion for judgment on the pleadings, arguing that the ADA and RA did not apply to state jails or prisons. The district court denied the motion.

The eighth circuit had yet to address the applicability of the ADA and RA to prisons and jails. The tenth and fourth circuits have both held that the statutes do not apply to prisons and jails; while the third, seventh and ninth circuits, and various district courts, have held ...

CA ADA/RA Injunction Affirmed

In the September, 1997, issue of PLN we reported Armstrong v. Wilson , 942 F. Supp. 1252 (ND CA 1996) where a federal district court held that the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-34 and the Rehabilitation Act (RA), 29 U.S.C. § 794, applied to state prisons. The case involves a class action suit filed by all present and future California state prisoners and parolees with disabilities. The parties stipulated that many California state prisons lack emergency evacuation plans for disabled prisoners; that the range of vocational programs for disabled prisoners is more limited than the range provided to non disabled prisoners and that some disabled prisoners had been improperly classified for work and educational purposes so as to deny them sentence reduction credits given to non disabled prisoners.

Based on the stipulation of facts, the district court entered a remedial order and injunction ordering the CDC to develop a plan to comply with the ADA and RA. The court also held that the ADA and RA apply to state prisons and the state is not entitled to immunity from suit under the eleventh amendment. The defendants appealed. They did not contest the content of the ...

ADA Applies to State Prisons

A federal district court for Pennsylvania held that the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, applies to state prisons. This is the second recently published opinion in this case. The first, Saunders v. Horn , 959 F.Supp. 689 (ED PA 1996), was a magistrate's report and recommendation on the defendants' Rule 12(b)(6) motion to dismiss. In this second opinion the district judge adopted the report and recommendation, but gave a more thorough analysis of the legal issues of the case.

In September 1995 a long-time Delaware state prisoner, who had been wearing orthopedic shoes and walking with the aid of a cane for several years because of a spinal injury, was transferred to the Pennsylvania state prison at Camp Hill. Upon his arrival the prisoner's cane and shoes were seized, and he was provided with regular state issued footwear. Two months later he was transferred to Graterford state prison and confined to an upper bunk in a lockdown cell. The prisoner claimed to suffer constant pain from the regular shoes and from climbing into and out of the upper bunk. He further alleged that the toilet and shower facilities at ...

Illinois Suing Prisoners for Cost of Incarceration

Illinois prisoner Kenneth Williams has spent much of the last 12 years working in the Stateville Correctional Center tailor shop sewing prison pants, coats, jumpsuits and shirts. As a result of the job, Williams has saved about $5,000. Money he says he'll need to start a new life when he is released from prison in six years.

But the state wants to take that money. Illinois Attorney General Jim Ryan is suing Williams for the entire cost of his incarceration -- $206,007. Illinois is pursuing court claims against Williams and 38 other state prisoners under a law passed 1997 that allows the state to recover from prisoners the annual cost of incarceration, now averaging about $16,700 in Illinois.

About half of the prisoners targeted in the lawsuits have less than $4,000 in assets, which makes it unclear how the state expects to collect much of the $4.6 million total it is seeking with the lawsuits.

A spokesman from the Attorney General's office said in addition to the 39 suits already filed in March, 1998, the state will file similar suits against prisoners with assets exceeding a certain threshold, which he declined to specify.

Williams ...

California Guard Gets Prison in Child Molester Attacks

by W. Wisely

Jose Ramon Garcia, 42, was sentenced to four years and eight months in prison for soliciting Pelican Bay prisoners to assault alleged child molesters. The former prison guard's April sentencing in Del Norte County Superior Court came amid widening state and federal investigations into civil rights violations at one of the state's most violent prisons.

According to an article in the Sacramento Bee , Garcia said, "Cuff me up," as Judge Alan Thieler ordered him taken into custody. Garcia was sent to San Quentin for a 90 day diagnostic study before he will be shipped to another prison to serve out his sentence.

William Stanton Boyd, 36, a prisoner at Pelican Bay, was slated to testify for the prosecution against Garcia. However, on March 9, 1998, Duke Bolter, 44, and Jimmy Gaston, 27, stabbed Boyd to death during yard recall. Outside agencies are investigating Boyd's death and there is speculation he was killed to prevent him from testifying in the Garcia trial.

"Prisoners [at Pelican Bay prison] are still at risk of harm from staff misconduct. And the fact that the FBI is looking into this shows that the department's own investigative abilities are ...

Tennessee Prison Privatization Bill Fails to Pass

Adramatic confrontation between the private corrections industry and opponents of prison privatization played out in Tennessee earlier this year, ending in an embarrassing defeat for the prison profiteers. Similar struggles can be expected in other states as privatization continues to expand across the nation's corrections systems -- and the Tennessee scenario provides valuable insight into how advances by private prison companies can be successfully challenged.

In April 1997 Tennessee Rep. Matt Kisber announced that the legislature was taking a hard look at privatizing the state's entire prison system, and that lawmakers had been holding closed-door meetings attended by lobbyists for the Nashville-based Corrections Corporation of America (CCA). Kisber, the influential chairman of the House Finance Committee, joined L.t. Governor John Wilder in sponsoring a system-wide prison privatization bill.

The legislation was drafted by a CCA lobbyist, and CCA cited potential budget savings of up to $100 million a year. As a not-so-subtle incentive the company offered to pay an additional $100 million "franchise fee" for the privilege of operating all of Tennessee's prisons. Republican Governor Don Sundquist, a privatization proponent, endorsed the bill; he previously had stretched state law to the breaking point so CCA could operate ...

MI Prison "Fee" Law Preempted by ERISA

Afederal district court in Michigan held that the State Correctional Facility Reimbursement Act (SCFRA), Mich.Comp.Laws.Ann. § 800.401 and Mich.Stat.Ann. § 28.1701, is preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1000, which prevents the state from seizing pension funds to pay for the cost of prisoners' incarceration. James Baugh is a retired Chrysler employee and a Michigan state prisoner who receives a monthly pension from Chrysler. The Chrysler pension plan is covered by ERISA. The Michigan state treasurer filed suit against Baugh and Chrysler seeking a court order directing that the pension be sent to the warden at the prison where Baugh is incarcerated so the money could then be seized under the SCFRA. Chrysler filed a motion for summary judgment which the court granted.

The SCFRA allows the state of Michigan to sue prisoners when the prisoner is able to pay for the cost of their captivity. Under ERISA, benefits provided under the plan cannot be assigned or alienated. Its purpose is to ensure retirees reap the benefits of their pensions The anti alienation rule extends to garnishments and restitution orders. See: Commercial Mortgage Insurance Inc. v. Citizen's ...

Bivens Action is Not Time Barred When in Compliance With Rule 3

Afederal court of appeals reversed a district court's dismissal of a wrongful death complaint filed by the mother of a federal prisoner, Shelia Moore.

Moore was put in an administrative segregation cell on suspicion of taking an unknown substance. Hours later she began screaming. The guard on duty called for medical assistance. An ambulance took her to the hospital where she died the next day of an acute overdose of cocaine.

Her mother, Rochelle McGuire, sued the warden and other prison officials for her daughter's wrongful death under Bivens v Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971) and the Federal Tort Claim Act (FTCA).

McGuire's complaint contained three Bivens claims: (1) Moore's treatment violated the Eighth Amendment's prohibition against cruel and unusual punishment, (2) the prison officials had violated Moore's right to due process under the Fifth Amendment and, (3) the Defendants had violated Moore's rights under the Fourteenth Amendment.

The district court dismissed the complaint with prejudice, finding: (1) as to the FTCA claim, the amended complaint did not relate back to the original complaint because the United States did not receive notice within the ...

Kansas Prisoners Entitled to Notice of Prison Rules

The Kansas state court of appeals held that Kansas prisoners have a due process liberty interest in their good time credits and are entitled to notice of prison rules before they can be punished for violating them. Xuan Hiep Le is a Kansas state prisoner. While in segregation he was infracted after guards found a pair of tweezers under his mattress. The tweezers were considered "dangerous contraband." Le was found guilty at a disciplinary hearing and sentenced to 45 days in disciplinary segregation; 6 months loss of good time; a $20 fine and 60 days loss of privileges. On appeal the warden affirmed the guilty finding but modified the punishment to 14 days in disciplinary segregation; 60 days loss of privileges; three months loss of good time and a $20 fine.

Le filed a 60-1501 petition in the state district court challenging the infraction. The petition was dismissed. The court of appeals reversed and remanded. The appeals court held the lower court erred in dismissing the petition because Le had stated a claim for a violation of his constitutional rights. The court noted that Kansas prisoners have a liberty interest protected by the due process clause of the Fourteenth amendment ...

Two Year Limitations on Illinois § 1983 Suits

The court of appeals for the seventh circuit held that a district court erred in dismissing a prisoner's lawsuit because it had miscalculated the statute of limitations. The court also held that 28 U.S.C. § 1915(g), the "Three Strikes" provision of the Prison Litigation Reform Act (PLRA), did not apply because the dismissal of the lawsuit was reversed.

Rudolph Lucien, an Illinois state prisoner, filed suit claiming he was subjected to a pattern of retaliatory transfers for filing lawsuits against prison officials. This pattern culminated in a December, 1995, transfer. In March, 1996, Lucien filed suit and requested In Forma Pauperis (IFP) status. The district court held the suit was time barred because it construed Lucien to be suing over a 1993 retaliatory transfer. The court dismissed the suit as frivolous and assessed it as a "strike" against Lucien under § 1915(g). The court of appeals reversed in part, vacated in part and remanded.

The court noted that state statute of limitations for personal injury suits provide the limitations period for 42 U.S.C. § 1983 actions, which does not have its own statute of limitations. In Illinois this period is two years. The court held that ...

Dismissal for Incompetent Appointed Lawyer Reversed

The court of appeals for the seventh circuit held that district courts should not dismiss cases for want of prosecution where court appointed counsel is plainly incompetent. Lawrence Dunphy, an Illinois state prisoner filed suit claiming prison officials violated his eighth amendment rights by disobeying a medical order to give him a single cell with a lower bunk on a ground floor. The district court appointed lawyer Michael Cheronis to represent Dunphy. Cheronis did absolutely nothing to advance the case. After failing to appear at court ordered status conferences and refusing to follow court orders the district court dismissed the case for want of prosecution.

The court of appeals reversed and remanded. The court held that the guidelines governing district court discretion in dismissing actions for want of prosecution set forth in Ball v. City of Chicago , 2 F.3d 752 (7th Cir. 1993) also apply to cases involving appointed counsel. In cases involving retained counsel, each party is deemed bound by the acts of their lawyer-agent. Applying Ball the court held the district court should have considered sanctions against Cheronis before dismissing the case.

"The court must bear in mind, where counsel has been appointed or recruited for a ...

$13,501 Jury Award in Seg Case Affirmed; New Trial Denied

A federal district court in Pennsylvania denied defendants' motion for a new trial or to remit a jury's damage award of $13,501 to a wrongfully segregated prisoner. Jerry Wilson, a federal prisoner awaiting sentencing at a city jail, was attacked by his cellmate Paul Murphy after guards searched ...

Publications Lawsuit Settled in Alabama

On February 28, 1998, U.S. district judge U.W. Clemon approved the final settlement in a lawsuit challenging a year of blanket censorship at Donaldson Correctional Facility (DCF), Alabama's highest security prison.

In March, 1997, DCF warden Steve Dees implemented a policy that banned all periodicals not included on a list of 16 approved publications. The list of approved publications included Playboy, Reader's Digest, Car and Driver, Newsweek, Wrestling World, Health and Fitness , etc. Mail censors used the policy to exclude a vast array of other publications, namely, everything not on the approved list. This included: Prison Legal News, The Nation, Harpers, Inside Chess, Time, U.S. News and World Report, Outdoor Life , etc. Conspicuously absent from the list of approved publications were periodicals covering non centrist politics, science, literature, and other topics not considered standard fare in rural Alabama. The policy also prohibited catalogs of any kind and prohibited newspapers from places other than the prisoners' "home towns." Warden Dees later expanded the policy to ban all books from the prison.

In May, 1997, the Southern Poverty Law Center filed suit on behalf DCF prisoners. Plaintiffs sought injunctive relief requiring the Alabama DOC to abandon the ...

Strip Searched Massachusetts Women Settle Suit for $80,000

On December 12, 1997, the Massachusetts DOC settled a lawsuit filed by women prisoners for a total of $80,000 plus attorney fees. The class action suit was filed in Suffolk county superior court on behalf of 112 female prisoners by Massachusetts Correctional Legal Services. In the middle of the ...

AEDPA Successive Petitions Clause Not Applicable to Disiplinary Hearings

AEDPA Successive Petitions Clause Not Applicable to Disciplinary Hearings

The court of appeals for the fifth circuit held that habeas corpus petitions challenging prison disciplinary hearings that became final after prior habeas petitions challenging a criminal conviction have become final, are not successive for purposes of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). This ruling is significant because it is the first published opinion to address this important issue.

Shane Cain, a Texas state prisoner, challenged the loss of good time credits in two prison disciplinary hearings by seeking permission from the fifth circuit court of appeals to file two habeas corpus petitions seeking restoration of the lost good time credits. Cain had previously challenged his criminal conviction in federal habeas proceedings.

When AEDPA was enacted it created 28 U.S.C. § 2244(b) which states that district courts cannot consider claims presented in a second or successive habeas petition unless a circuit court first grants permission to file it. Cain's petition to file a successive habeas petition was denied as being unnecessary.

"The AEDPA, however, does not define what constitutes a 'second or successive' application. Nevertheless, a prisoner's application is not second or successive simply because ...

Washington Felon Voting Suit Proceeds

In the October, 1997, issue of PLN we reported Farrakhan v. Locke , a lawsuit challenging the felon disenfranchisement provisions of the Washington state constitution which prohibit convicted felons from voting. The defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing the suit failed to state a claim upon which relief could be granted. The district court granted the motion in part and denied it in part.

Black, Hispanic and Native American Washington state prisoners filed suit contending that Article VI, § 1 and 3 of the Washington constitution, which prohibits convicted felons from voting, violates the first, fourth, fifth, sixth, ninth, fourteenth and fifteenth amendments to the U.S. constitution and the Voting Rights Act (VRA). The plaintiffs alleged that minorities are disproportionately prosecuted and sentenced in Washington, resulting in their disproportionate representation among those disenfranchised under the state constitution. Consequently, the law causes vote denial and vote dilution on the basis of race, which violates the VRA and U.S. constitution.

The VRA was enacted to eliminate vote denial and vote dilution on the basis of race. The court held that Washington's felon disenfranchisement law is a voting device subject to the VRA ...

No Immunity for Abestos Exposure; Toxic Water Claim Remanded

The court of appeals for the second circuit held that prison officials are not entitled to qualified immunity for exposing a prisoner to airborne asbestos. The court also held that a prisoner plaintiff was entitled to present evidence that a prison's water supply was contaminated with toxic chemicals and the district court erred in dismissing the claim.

In 1993 Mark LaBounty, a New York state prisoner, filed suit claiming conditions of confinement at the Woodbourne Correctional Facility constituted cruel and unusual punishment, in violation of the Eighth amendment, because toxic chemicals in the prison's water supply and airborne asbestos particles from pipes caused him myriad illnesses. During discovery LaBounty submitted interrogatories asking the defendants what chemicals were present in the prison's water supply. The defendants did not respond. The court ordered a response after LaBounty filed a motion to compel. The defendants submitted interrogatories asking LaBounty what chemicals he claimed were in the water. He said he did not know because the defendants had not responded to his interrogatories yet. Ultimately, the district court held that pursuant to Fed.R.Civ.P. 37(b)(2) LaBounty was precluded from presenting evidence on the water claim because he ...

News in Brief

AZ : In July, 1998, a jury acquitted Bruce Howell, a Perryville prisoner, of murder and all charges but one related to the killing of prison guard Brent Lumley. Howell faces a second trial on a single charge of deadly assault by a prisoner.

AZ : On June 29, 1998, an unidentified transsexual prisoner filed charges alleging that Maricopa county jail guard George Back forced him to perform oral sex in a jail cell. Back resigned from the job as a guard, while the jail insisted the act was consensual.

CA : In early July, 1998, Ronnie Hawkins, a defendant in a three strikes case, was ordered shocked by Los Angeles Municipal court judge Joan Comparet-Cassanithe. Hawkins was wearing a "stun belt" which delivers a 50,000 volt electrical charge, because he had been in fights while in jail. The judge ordered a bailiff to administer the eight second shock because Hawkins repeatedly interrupted her. Several attorneys filed complaints over the incident. Hawkins, represented by lawyer Stephen Yagman, filed suit. He is the first defendant to have the device activated since Los Angeles began using it in 1996.

CA : On April 14, 1998, Jerry Bailey, a guard at the federal Metropolitan Correctional Center ...

Legislative Immunity For Local Jail Budget Votes

The Eleventh Circuit has held that county commissioners are entitled to absolute legislative immunity for failing to adequately fund a jail, thereby causing inadequate jail conditions

Current and former Alabama jail prisoner plaintiffs sued alleging overcrowding, inadequate medical care and medical facilities, inadequate supervision, and other unconstitutional conditions in the county jail. They included the county commissioners as defendants because a state statute makes it the county commissioners' responsibility to pass an annual budget which includes jail expenses. Defendants filed a motion to dismiss claiming absolute legislative immunity. The district court denied the motion and defendants appealed.

Reviewing the issue de novo the court of appeals held that legislative immunity, established in the Speech and Debate Clause of Article 1, § 6, clause l of the U. S. Constitution, can protect local legislators when acting in their legislative capacities. "Legislators have absolute immunity under section 1983 when they are 'acting within their legislative roles' performing 'legislative acts."' Tower v. Glover, 467 U.S 914, 920 (1984). However, this immunity extends only to acts undertaken in a legislative, not an administrative or managerial capacity. "An act is deemed legislative, rather than administrative or managerial, when it is policymaking and of general application ...

$1,000 Awarded in Denial of Dental Care in TX

On July 14, 1997, federal magistrate Judith Guthrie held that Texas prison dentists were deliberately indifferent in refusing to provide dental care to a prisoner. Following a bench trial magistrate Guthrie awarded the plaintiff $1,000 in damages. Garmon Coats, a Texas state prisoner, sought to have a broken filling ...


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