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Prison Legal News: September, 1998

Issue PDF
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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...