The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume I, Issue 3, July 2000

ACCESS

Seeking Relief Through The Courts: Differences
between Section 1983 Actions and Tort Claims
Inmates who have decided to file
a lawsuit often wonder whether
they should file a Section 1983
suit, or a tort claim in the North
Carolina Industrial Commission, or
in superior court. The purpose
of this article is to discuss the
differences relating to the standard
of proof required in each type
of case.

conduct. See, for example, Wilson
v. Seiter, SOl U.S. 294 (1991).
Intentional misconduct can include
a failure to act. Estelle v. Gamble,
429 U.S. 97, 102-3 (1976)(deliberate indifference to a serious medical
need constitutes the wanton infliction ofpain proscribed by the Eighth
Amendment); Farmer v. Brennan,
511 U.S. 825 (1994)(failure to
protect an inmate from a substantial
risk of serious halm constitutes
deliberate indifference.)

The greatest difference between a
§ 1983 claim and a tmi claim is
the standard of proof required in
each case. In a § 1983 claim, In the context of a constitutional
the standard requires a showing of challenge to prison conditions
intentional conduct that is more or involving safety or health, liability
less culpable, while the standard in can be established by proving that
a tort claim requires only a showing the defendant was "deliberately
indifferent" to a deprivation of the
of negligence or carelessness.
basic necessities of life. See, for
example, Estelle v. Gamble, ld.
Section 1983 Actions
However,
First, a constitutional claim under 42
[A] pnson official
U.S.c. § 1983 must be based upon
an injury (or the threat of an injury)
cannot be found
liable under the
that a reasonable person would
Eighth Amendment
consider to be serious. Hudson v.
McMillian, 503 U.S. 1 (1992). For
for
denying
an
example, a serious injury is one
inmate humane conthat deprives an inmate of "the
ditions of confineminimal civilized measure of life's
ment unless the
necessities." Rhodes v. Chapman,
official knows of and
452 U.S. 337 (1981).
disregards an excessive risk to inmate
Second, the serious injury must be
health or safety; the
threatened, or must have resulted
official must both be
from an official's intentional misaware of facts from

which the inference
could be drawn that
a substantial risk of
serious harm exists,
and he must also
draw the inference.

Farmer v. Brennan, 511 U.S. at
836. This means that a plaintiff
has to prove the defendant had
a "sufficiently culpable state of
mind." Wilson v. Seiter, 501 U.S.
294, at 302-303 (1991); Hudson
v. AlcMillian, 503 U.S. 1, at 6
(1992).
Plaintiffs alleging an unconstitutional use of force have an even
higher burden of proof. The courts
have found in such cases that the
"deliberate indifference" standard
does not accord sufficient deference
to the decisions of correctional offiContinued on page 3

Inside this Issue:
Tort Claim or §1983?

1

NCPLS Challenges DOC
Sentencing Policies

2

Safe and Humane Jails Project 4
NCPLS Successful in Habeas
.Cases

6

NCPLS Paralegals Obtain
Professional Certification

6

Page 2

NCPLS ACCESS

ABOUT ACCESS
ACCESS is a publication of North Carolina

Prisoner Legal Services, Inc. Established
in 1978, NCPLS is a non-profit, public
service organization. The program is
governed by a Board of Directors who are
designated by various organizations and
institutions, including the North Carolina
Bar Association, the North Carolina
Association of Black Lawyers, the North
Carolina Association of Women Attorneys,
and law school deans at UNC, Duke,
NCCD, Wake Forest and Campbell.
NCPLS serves a population of more
than 31,000 prisoners and 10,000 pre-trial
detainees, providing information and
advice concerning legal rights and responsibilities, discouraging frivolous litigation,
working toward administrative resolutions
of legitimate problems, and providing
representation in all State and federal
courts to ensure humane conditions of
confinement and to challenge illegal
convictions and sentences.

Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jr.
Jim Blackburn
James A. Crouch, Esq.
Professor Adrienne Fox
Professor Grady Jessup
Paul M. Green, Esq.
Melinda Lawrence, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, c.P.A.
Professor Ronald F. Wright
Fred Williams, Esq.
Executive Director
Michael S. Hamden, Esq.

Editor
Billy 1. Sanders, CLAS
Articles, ideas and suggestions are welcome: bsanders@ncpls.org

Volume 1, Issue 3

NCPLS Challenges Sen'tence Calculation
Policies of Department of Correction
In 1996, NCPLS filed Hamilton v.
NC Dept. ojCorrection, 96 CVS
6321 (Wake Co. Superior Court) on
behalf of inmates in the custody
of the North Carolina Department
of Correction affected by a policy
and practice of the DOC to ignore
facially valid judgments of the
courts. As a result of this policy
the sentences granted to these
inmates by the court were summarily and unilaterally changed by the
DOC. The Plaintiffs' claims concemed the imposition of concurrent
sentences or Committed Youthful
Offender (CYO) status by the trial
court, although not authorized by
the relevant statutes. In cases in
which a concurrent sentence has
been granted for a crime for which
a consecutive sentence is required
by statute, the DOC has disregarded the judgment for a concurrent sentence and entered the
sentence on their records as consecutive. In cases in which CYO
status was granted to an inmate not
eligible for it, the DOC has refused
to afford the inmate the benefits of
CYO status.
The position of the DOC is that the
practice is required by law and that
Plaintiffs are not entitled to concurrent sentences or CYO status. The
DOC claims that the cases, State v.
Isom, 119 NC App. 225 (1995), and
State v. Wall, 348 NC 671 (1998),
support their position. In Isom, the
North Carolina Court of Appeals
held that, where a criminal defendant has pled guilty under a plea
agreement that calls for a sentence
which is not authorized by statute,
the defendant is constitutionally

entitled either to specific performance of his plea bargain, or to
have the plea withdrawn. In Wall,
the North Carolina Supreme Court
held that a criminal defendant is
not legally entitled to a sentence
not authorized by statute. The court
further held that, if the inmate has
pled guilty in reliance on a promise
of the state that he will receive a
concurrent sentence, he is constitutionally entitled to renegotiate a
new plea which gives him the benefit of his bargain. However, these
cases do not authorize the DOC to
modify these sentences.
Although the litigation is ongoing,
the DOC is taking certain actions.
The DOC is in the process of
identifying all inmates who are
currently serving a consecutive sentence for a crime that carries a
mandatory consecutive sentence.
(There are 10 categories of such
crimes: 1st and 2nd degree burglary
under the Fair Sentencing Act;
anned robbery under the Fair Sentencing Act; habitual felon; violent
habitual felon; habitual impaired
driving; repeated felony with a
deadly weapon; trafficking controlled substances; 1st and 2nd
degree sexual exploitation of a
minor; promoting and participating
in prostitution of a minor; and possession of drugs in jailor prison.)
Although there will be many more
inmates identified than have actually been affected by the practice,
no one who has been affected
should be overlooked.
Each identified inmate will receive
Continued on page 3

NCPLS ACCESS

Page 3

Tort Claim or §1983?

continued from page 1

\0 lume 1, Issue 3

Sentences
continuedfrom page 2

cials when circumstances dictate
that action be taken in haste, under
pressure, and frequently without
the luxury of a second chance.
Whitley v. Albers, 475 U.S. 312, 320
(1986). In those cases, the plaintiff
must show that officials applied
force maliciously and sadistically
for the very purpose of
causing harm. Whitley,
475 U.S. at 320.
Negligence simply is not
actionable under § 1983.
See, for example, Davidson v. Cannon, 474 U.S. 344,
106 S.Ct. 668, 670, 88 L.Ed.2d
677 (1986)(mere negligent failure
to protect inmate does notviolate
fourteenth amendment); Miltier v.
Beom, 896 F.2d 848 (4 th Cir.
1990)(medical negligence does not
state a constitutional claim).

Negligence Claims
Negligence cases involve a much
less demanding legal standard. In
order to establish a claim of
negligence, a plaintiff must show
that (1) he was injured as a (2)
direct and immediate result of (3)
the negligence of a person who
owed him some duty (4)
which was breached (or
was not fulfilled). To put
it another way, a plaintiff
must allege that: (A) the
defendants had a specific
duty to protect his health,
safety or welfare; (B) the
defendants breached their duty (that
is, that they failed to fulfill their
duty); (C) that plaintiff was injured
as a proximate result (that is, as a
direct result); and (D) that the injury

written notice that his sentence may
have been altered and that he may
be entitled to relief. That notice
will be sent to several thousand
It is also worth noting that, under the inmates within the next 90 days.
law of North Carolina, the doctrine However, it is likely that only a
of contributory negligence is small number of those who will
a complete defense to a claim be notified will actually have been
of negligence. That doc- affected by the policy. In addition,
trine allows defendants to the DOC will send notice to any
argue that plaintiff was inmate who is affected by the
himself negligent, and policy in the future and who has
that the plaintiff s negli- his or her sentence modified by the DOC.
gence contributed to the If you receive such a notice and
injury which he ultimately you want legal help, you can consuffered. Even if the defendants tact your trial attorney or write
were negligent, they would be to NCPLS. We anticipate a large
excused from paying any money if number of requests for assistance
they succeed in showing that the with this matter, so it may take
us longer than usual to respond to
plaintiff was also partly at fault.
your letter. You can help to ensure
Even so, it is generally easier to a timely response by identifying
prove negligence than deliberate the nature of your request with
indifference or malice.
this language at the top of your
letter: Hamilton Case Request ; or
by completing and submitting the
Medical Care: § 1983
REQUEST FOR ASSISTANCE
To successfully maintain a § 1983 attached to the Notice that the DOC
suit for improper medical treatment, will send. It will also be helpful
an inmate must prove that prison if you can provide a copy of your
officials were deliberately indiffer- judgment and commitment paper(s)
ent to a serious medical need, and and the Transcript of Plea, if you
that this indifference caused serious were convicted pursuant to a plea
injury. Estelle v. Gamble, bargain.
429 U.S. 97 (1976). This
means that an inmate must Late Update: on July 3, 2000, we
demonstrate that a serious obtained a decision from the Wake
medical condition existed, County Superior Court that, in the
and that prison officials future, the Department of Correcwere aware of the condi- tion will not change a concurrent
tion, yet failed to provide sentence to consecutive but will
treatment. (Where some medical notify the court that imposed the
attention has been provided, it is sentence that it is erroneous and
must be changed.
often difficult or impossible to
plaintiff suffered was foreseeable
(or should have been anticipated by
the defendants).

continued on page 4

Page 4

NCPLS ACCESS

The Safe and Humane Jails Project

Volume 1, Isssue 3

TortClaimor§1983?
continued from page 3

NCPLS provides a wide range of
services, from advice about prisoners' legal rights, to representation
in all State and Federal courts.
The promotion of safe and humane
conditions of confinement for our
clients continues to be one of the
highest priorities of NCPLS. Such
advocacy has been the historical
focus of our work on behalf of
people confined in county jails. Our
involvement has improved the lives
of thousands of pre-trial detainees
in North Carolina.
With funding from
Carolina State Bar
through the IOLTA
Program (Interest on
Lawyers'
Trust
Accounts), NCPLS
created the Safe &
Humane Jails Project. The community
of persons served
through that Project
consists of citizens
from across the State
who are detained in
jails and municipal
lockups.

the

North

That population constantly changes, but
is composed of
approximately 10,000 individuals at
any given time. Most of these
people are impoverished, being
held pending trial because they are
unable to post bond.
With respect to the conditions
of their confinement (including
matters such as inadequate medical
services, substandard or dangerous

living conditions, or threats to
physical health and safety), people
confined in detention facilities have
little recourse. Even in jails that
treat inmate grievances seriously,
complaints often stem from insufficient capital resources; problems
often beyond the control of the
Sheriff or jail administrator.

show that a medIcal need has been
ignored.)

Acting on behalf
of our clients,
NCPLS representatives have often
been successful
in working on a
cooperative basis
with
counties
across the State to correct problems
that threaten the health and safety
of people in jail. For example, last
year, NCPLS expended substantial
resources working with officials in
an eastern North Carolina county to
ameliorate inhumane conditions in
the jail. There, prolonged, severe

In any case where an inmate is
attempting to establish deliberate
indifference, it must be shown
that prison officials were aware of
the condition. The most effective
means of producing this evidence
is by showing that the inmate
signed up for sick call, and that
the inmate utilized the grievance
procedure. Inmates sometimes feel
that these actions are useless, and
they therefore neglect to sign up
for sick call or file grievances.
However, the lack of those documents can make it difficult to prove
deliberate indifference if the inmate

The phrase "serious medical need"
refers to an "obvious and notorious
Laaman v. Helgemoe,
injury,"
437 F.Supp. 269, 311 (D.N.H.
1977), such that even a layman
can recognize the clear need for
a doctor's immediate attention.
Court-appointed attorneys almost Partee v. Lane, 528 F.Supp. 1254
always limit their involvement to (N.D. Ill. 1981); Ramos v. Lamm,
defending criminal charges and 639 F.2d 559 (loth Cir. 1980),
are not compensated to provide rep- cert. denied, 450 U.S. 1041 (1981).
resentation concerning complaints A serious medical need can also
about conditions of confinement. be established by showing that a
Those few attor- physician exercising ordinary skill
neys who may be and care would have concluded that
inclined to assist the symptoms evidenced a need
their clients with for treatment, that there was a
such matters may substantial chance for harm to result
be unable to do if medical care were delayed, and
so due to a lack of that harm did result after the delay.
knowledge con- Stokes v. Hurdle, 393 F.Supp. 757,
.
.
cernmg pnsoner 761 (D. Md. 1975), aff'd, 535 F.2d
civil rights.
1250 (4th Cir. 1976).

continued on page 7

continued on page 5

NCPLS ACCESS

Page 5

Tort Claim or § 1983 action?
later decides to take legal action
because there may be no other
evidence that the medical problem
was called to the attention of prison
officials.
Medical Care: Negligence
A medical negligence action under
state law has a lower standard
of proof than a § 1983 action. An
inmate must show "by the greater
weight of the evidence that the
care [provided] was not in accordance with [accepted] standards of
practice," and that the inmate's
injuries were the proximate result
of the medical care received.
N.C.Gen.Stat. § 90-21.12. A doctor
is expected to exercise reasonable
care and diligence, and to use
sound professional judgment when
treating inmates. Hunt v. Bradshaw,
88 S.E.2d 762, 765 (1955). It
is not ordinarily negligent for a
doctor to prescribe and follow a
course of treatment different from
that preferred by the patient. See,
for example, Brewer v. Ring & Valk,
177 NC 477 (1919).
Failure to Protect from Violence
Prison officials may be held liable
for "deliberate indifference to a
substantial risk of serious harm" to
an inmate. Farmer v. Brennan, 511
U.S. 825 (1994). There are two
ways this deliberate indifference
can be established. Corrections
officials' deliberate indifference to,
or callous disregard of a specific,
known risk of harm states a
Pressly v.
constitutional claim.
Hutto, 816 F.2d 977 (4th Cir. 1987);
Ruefly v. Landon, 825 F.2d 792

(4th Cir. 1987). Even where there
is no notice of a specific threat
of harm, deliberate indifference to
a pervasive risk of harm raises
a constitutional claim. Withers v.
Levine, 615 F.2d 158 (4th Cir.),
cert. denied, 449 U.S. 849 (1980);
Woodhous v. Virginia, 487 F.2d 889
(4th Cir. 1973).
Under State law, an inmate may
file suit based upon a "failure
to protect" theory under the law
of negligence. In this context,
the inmate must prove: (A) the
defendants knew or should have
known that the inmate faced a
genuine risk of harm; (B) the
defendants had a specific duty to
protect the inmate's safety; (C)
the defendants breached their duty
(that is, that they failed to protect
the inmate); (D) that plaintiff was
injured as a "proximate" result (that
is, as a direct result); and (E) that
the injury plaintiff suffered was
"foreseeable," (or should have been
anticipated by the defendants).
Under both federal and state law,
the most difficult aspect to prove
is knowledge on the part of prison
officials.
The inmate must be
able to show through grievances,
letters, and witness statements that
the problem was brought to the
attention of the defendants at a
time when they could have acted to
prevent the assault. The question of
whether to prosecute a § 1983 action
or a tort claim then turns on whether
the defendants' inaction constituted
negligence, or involved a higher
degree of culpability amounting to
deliberate indifference.

Volume 1, Issue 3
continued from page 4

Use of Force

The courts have recognized a
privilege for correctional officers
to use force against an inmate
to maintain institutional order and
security.
Although the courts
ordinarily defer to the judgment
of correctional officials concerning
such matters, it has been recognized
that the Constitution protects against
an unreasonable or excessive use
of force. See, for example, King
v. Blankenship, 636 F.2d 70 (4th
Cir. 1980). Force that is used in
a good faith effort to restore or
maintain discipline is not excessive,
but force that is used maliciously
and sadistically for the very purpose
of causing harm is considered
unconstitutional. Whitley v. Albers,
475 U.S. 312 (1986); Hudson v.
McMillian, 503 U.S. 1 (1992).
In determining whether the force
used in a particular situation was
excessive, such factors as (1) the
need for application of force, (2) the
relationship between the need and
the amount of force used, and (3) the
extent of the injury inflicted will be
considered. Miller v. Leathers, 913
F.2d 1085, 1087 (4th Cir. 1990)(en
bane). The extent of the injury the
illlnate has received may indicate
the force used was excessive.
Hudson v. McMillian, 503 U.S. 1
(1992). However, not every injury is
considered to be "sufficiently serious" as to violate the Constitution.
Stanley v. Heijrka, 134 F.3d 629 (4 th
CiT. 1998)(bruising, swelling, loose
tooth were de minimis injuries under
8 th Amendment).
Continued on page 6

Page 6

NCPLS ACCESS

Tort or §1983?
Under state law, an officer may bc
held responsible for the negligent
application of force. This means
that, although an officer may have
intended to use force, unintended
injuries that result may have been
negligently inflicted. Jackson v.
North Carolina Department 0/
Crime Control and Puhlic Safety,
388 S.F.2d 770 (1990)(i1' an officer
employs force but applies it negligently and injury results, the officer
may be held liable).

Conclusion
The decision about what kind 0['
lawsuit to file can be complex
and confusing.
Inmates who
believe they may have grounds for
legal action can contact NCPLS
for advice and limited assistance.
NCPLS also provides legal representation in meritorious cases. A
meritorious case is one that presents
a claim \-vhich is eithcr legally
recognized, or one for which a
good faith argument could be made
for recognition. Additionally, the
case must have a realistic chance
to achieve significant relief for thc
c1icnt, or for inmates, generally
(either monetary or injunctive relief,
or both). NCPLS does not accept
for representation cases that have
only de minimis valuc or little
likelihood of success.

Authored by Chana Dorrough
NCPLS Star! Attorney

Volume 1, Issue 3

NCPLS Successfully Represents Clients
in Two Habeas Cases
NCPLS recently prevailed at the
U.S. District Court levcl in two
petitions for writs of federal habeas
corpus. In onc case, the U.S. District
Court ordered a re-sentencing, and
in anothcr ease, a ncw trial.

successful appeal, in the absence
of new facts justifying a harsher
sentence, a more severe sentence
is presumed to be the result of
unconstitutional judicial vindictiveness.

In Boyd v. Freeman, the Petitioner
had pled guilty in state court to
ten counts of robbery and received
a single, consolidated sentence of
60 years, under the Fair Sentencing
Act.
However, under that law,
a consolidated sentence cannot
be greater than the maximum
penalty for the most serious felony
consolidated, and the maximum
sentence for robbery was 40 years.

In Boyd, the U.S. District Court
for the Western District ruled that
the re-sentencing (which resulted in
two, eonsecutive robbery sentences
adding up to the same number
of years as the original sentence)
was more severe than the first
sentence because the seven-year
mandatory imprisonment prior to
parole eligibility was doubled in the
second sentence.
Becausc there
was no fact in the rc-sentencing
hearing to dispel the presumption
of judicial vindictiveness, the court
required North Carolina to either
grant a re-sentencing hearing to deal
with the increased imprisonment or
release the Petitioner from custody.

The Petitioner filed a motion for
appropriate relief seeking a legal
sentence. The state judge then
unconsolidated one of the robbery
sentenccs, gave him 40 years for
thc consolidated sentences and
a consecutive 20 years for the
remaining robbery, thus totaling
the original 60 years. Rut since
eaeh robbery conviction carries a
mandatory 7 years imprisonment
before parole eligibility, Petitioner
was required to serve 14 years
before parole consideration rather
than 7 as under his original sentence.
The Petitioner was worse off than
before he began post-conviction
proceedings.
After exhaustion of the claims in
state cOllli, NCPLS filed a Petition
for a Writ of Habeas Corpus in
the Western District based upon
North Carolino v. Pearce, 395 U.S.
711 (1969). In Pearce, the U.S.
Supreme Court ruled that, after a

conlinued 0/1 page R

NCPLS Paralegals Obtain
Professional Certification
NCPLS Paralegals Kim W. Bratton
and Yvonne P. Oates have successfully completed the Celiified Lcgal
Assistant examination administered
by the National Association of
Legal Assistants.
Passing that
milestone, Yvonne and Kim join
four other NCPLS paralegals who
have already attained professional
certification. With this certification, Kim and Yvonne are able
to deliver comprehensive suppOli
services to NCPLS attorneys and
clients. Congratulations to Yvonne
and Kim on achieving this landmark
in their professional development!

Page 7

NCPLS ACCESS

Safe and Humane Jails Project
overcrowding at the jail had caused
a deterioration of the physical
plant, a lapse in safety procedures,
the degradation of programs and
services, and the development of
inhumane and illegal practices.
Crowding had reached such levels
that inmates on suicide watch
were housed in common corridors,
chained to their beds.
Other
inmates were even less fortunate,
relegated to matts placed on hallway
floors and handcuffed to bars
or tables.' Because there were
insufficient officers to handle the
population, inmates were rarely
afforded exercise or any opportunity
to move beyond the length of the
chains and bars that restrained them.
With literally hundreds of people
crammed into poorly ventilated,
dark cells and hallways, a lack
of adequate staff to supervise
and care for the inmates, and
no meaningful health screening
of inmates upon admission, the
potential for profound catastrophe
was real and immediate.
While there remain significant
problems at that jail, NCPLS
advocates worked with County
officials to reduce the population by
about 30%. Additionally, attention
was given to fire safety and evacuation procedures, a tuberculosis
screening protocol was developed
and implemented, and other actions
were taken to improve operations.
Similarly, at the request of a County
Board of Commissioners in western
NOlih Carolina, NCPLS Attorney
Kari L. Hamel appeared at a meeting
of the Board to discuss with its
members and the Sheriff principles
of j ail administration, including

Volume 1, Issue 3
continued from page 4

legal requirements concerning the
safe custody and the humane treatment of prisoners.

through administrative channels,
and when necessary, through litigation.

When officials have been unwilling
to work cooperatively to ameliorate
inhumane jail conditions, NCPLS
has achieved meaningful relief for
our clients through litigation. In the
last decade, NCPLS has represented
jail inmates in class action lawsuits
in more than a dozen counties.
For example, NCPLS litigation has
resulted in the construction of
new or refurbished jail facilities
in Durham, Gaston and Franklin
Counties.
The result has been
greater safety and more humane
conditions for people confined in
those counties, benefitting literally
thousands of North Carolinians.

Although the task is daunting, we
believe the Safe & Humane Jails
Project provides a genuine service
to our clients and the people of
North Carolina. This is true, not
only in the narrow and abstract
sense that every citizen in a civilized
society has an interest in the humane
treatment ofprisoners. It is also true
because people who are detained
pending trial are themselves citizens
and members of the larger community to which they eventually return,
as, of course, are detention officers
and other jail employees. Unsafe
or unsanitary conditions of confinement, coupled with overcrowding,
pose a heightened risk of contagion
and threaten the health and well
being of prisoners and those who
work in a detention facility. The
health of the general population
is threatened when those who
have been directly exposed to
unhealthy jail conditions return to the
community, either
after the disposition of criminal
charges, or upon
their return to
friends and family
at the conclusion
of each shift.

Regrettably, NCPLS has extremely
limited resources to administer the
Safe & Humane Jails Project,
despite an almost overwhelming
demand. For instance, during the
period of 1 October 1998 through 30
September 1999,
NCPLS received
more than 400
complaints about
jail conditions and
requests for legal
assistance from
pre-trial detainees
across the State.
NCPLS staff provided a response to each inquiry.
Our clients were advised of the
controlling legal standards, and they
were given advice and infonnation
about how to resolve particular
problems.
In appropriate cases,
NCPLS intervened on behalf of our
clients to attempt to resolve serious
complaints and attend serious needs

NCPLS works to ensure that living
conditions in all of the State's jails
are safe and humane. In a very real
sense, this work serves all of the
citizens of the State.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611

North Carolina Prisoner Legal Services, Inc.
224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611

Phone: (919)856-2200
Fax: (919) 856-2223
Email: bsanders@ncpls.org

Visit our website at:
<

http://www.ncpls.org

NCPLS Prevails in Two Habeas Cases
In Johnson v. Watkins, NCPLS
represented a prisoner who was
convicted of sexually abusing
children while they were visiting
his son at his home.
Social
Services had investigated the
allegations to determine if his son
should be removed from the home
but found the allegations to be
unfounded.
Although the Petitioner had told
his attorney that the social services
worker had left his child in the
home and would likely be a
favorable witness, the attorney
did not call the witness at trial
nor subpoena her reports. At a
hearing on a motion for appropriate
relief, the social worker testified
that she found the allegations of

sexual abuse of the children to be
unfounded.
The state court judge held that
the attorney should have used the
social worker at trial, but that it
probably would not have made a
difference in the outcome. NCPLS
then filed a petition for a
writ of habeas corpus in
federal court, based upon
both the failure of the state
to tum over the evidence
(a Brady claim) and ineffective assistance of counsel in
failing to use the evidence at
trial (a Strickland claim).
The federal court ruled that there
was no Brady claim since the
evidence was known to the defense ,
but ruled that the Petitioner should

continued from page 6

be awarded a new trial because
the attorney should have used the
evidence at trial and the evidence
would probably have changed the
verdict. A new trial was ordered.
The case has now been appealed
to the Fourth Circuit Court of
Appeals.
NCPLS evaluates
requests
for
post-conviction
assistance
from
inmates incarcerated in the North
Carolina Department of Conection. When there
is a reasonable chance to obtain
relief for the prisoner, NCPLS
offers representation in such cases.