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Prison Legal News

Prison Legal News: November, 1994

Issue PDF
Volume 5, Number 11

In this issue:

  1. UT DOC Violates Court Access Rights (p 1)
  2. State Must Provide Assistance for Parental Suits (p 2)
  3. UT Section 1983 Statute of Limitations Struck Down (p 2)
  4. Sexual Assault by Police States Claim (p 3)
  5. Change in Parole Eligibility Actionable Under Section 1983 (p 3)
  6. Admin Reversal Doesn't Affect Disciplinary Hearing Suit (p 4)
  7. Refusal to Help Prisoner Eat Illegal (p 4)
  8. RFRA Must Be Argued on Merits (p 4)
  9. Failure to Treat Teeth States Claim (p 5)
  10. Disputed Disciplinary Facts Require Reversal (p 5)
  11. Attorney Fees for Contempt Hearing (p 5)
  12. 4th Circuit Clarifies Eighth Amendment Standard (p 6)
  13. Idaho Cons Entitled to Pen and Paper (p 6)
  14. Transferee Entitled to Sending State Case Law (p 7)
  15. Prison Alcohol Program May Violate Free Speech (p 7)
  16. Retaliation Suit Requires Trial (p 7)
  17. Detainees Can't Be Forced to Work (p 8)
  18. Shortened Pens States Claim (p 8)
  19. Retaliation for Grievances Illegal (p 8)
  20. Evidence Must Support Disciplinary Charge (p 9)
  21. U.S. S.Ct. to Hear Prison and Parole Cases (p 9)
  22. BOP Phone Litigation Update (p 10)
  23. MA DOC Uses New Phone System (p 11)
  24. WI Removes Weights and Tennis Courts (p 12)
  25. Asset Forfeiture is Dysfunctional Policy (p 12)
  26. Hazardous Waste Found in WI Prison (p 13)
  27. DOJ Releases ADA Advisory Report (p 13)
  28. Killer Workplace (p 14)
  29. MI Parole Consent Decree Vacated (p 14)
  30. Overcrowding Leads to Pneumonia (p 14)
  31. Cooling Towers Spread Legionnaire's (p 14)
  32. Lawyers Deny Inmate Discovery Pending Motion to Dismiss in Federal Court (p 15)
  33. Santeros Win PI (p 16)
  34. No Immunity for Beating (p 16)
  35. WA Digital Probe Suits Barred (p 16)
  36. Committing Journalism - The Prison Writings of Red Hog (Book Review) (p 17)
  37. Scared Witless (p 18)
  38. The London Hanged: Crime and Civil Society in the 18th Century (Book Review) (p 18)
  39. Crisis Continues in Salvadoran Prison System (p 19)
  40. A Prison a Week (p 19)
  41. Asian Prison News (p 19)

UT DOC Violates Court Access Rights

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 1
Filed under: Attorney Fee Awards, Appointment of Counsel, Attorney Client, Court Access, Complaints. Location: Utah.
Utah state prisoners filed a class action suit against Utah Department of Corrections (UDC) officials claiming a failure to provide them with constitutionally adequate access to the courts. The district court agreed with the prisoners and issued an injunction ordering the UDC to substantially modify its practices with regards to ...

State Must Provide Assistance for Parental Suits

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 2
Filed under: Gender Discrimination -- Women, Court Access, Family Law. Location: Michigan.
Women prisoners in Michigan filed a class action suit against the Michigan Department of Corrections (DOC) challenging the decision to reduce funding to Prison Legal Services in order to end PLS assistance in parental rights matters. The prisoners argued that the decrease in PLS funding and prohibition of assistance in ...

UT Section 1983 Statute of Limitations Struck Down

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 2
Filed under: Civil Procedure, Limitations. Location: Utah.
In 1987 the Utah state legislature enacted section 78-12-28(3) which provided a two year period in which to bring an "action for injury to the personal rights of another as a civil rights suit under 42 U.S.C. § 1983." This is the only law of its type in the country. ...

Sexual Assault by Police States Claim

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 3
Filed under: Staff-Prisoner Assault, Police Misconduct, Gender Discrimination -- Women, Showers, Excessive Force, Guard Brutality/Beatings, Restraints. Location: California.
Susan Huffman was arrested by Pacific Grove Police and taken to the police station to be held pending a recognizance hearing. During the booking procedure a policeman molested and sexually assaulted her as two other policemen ignored her cries for help, looked on and laughed at her. She remained in ...

Change in Parole Eligibility Actionable Under Section 1983

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 3
Filed under: Sentencing, Ex Post Facto, Parole, Habeas Corpus. Location: Tennessee.
Thomas Lewis is a Tennessee state prisoner convicted in 1984 and sentenced to 30 years in prison. At the time of his conviction prisoners became eligible for parole consideration after serving thirty percent of their sentence. In 1989 the Tennessee DOC enacted Administrative Policy and Procedure 502.02 which allowed a ...

Admin Reversal Doesn't Affect Disciplinary Hearing Suit

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 4
Filed under: Disciplinary Litigation, Witnesses (Disciplinary Hearings), Disciplinary Appeals, Immunity/Liability, Judicial Immunity. Location: New York.
Robert Walker is a New York state prisoner. During a search of Walker's cell prison guards found a knife and excess bedding and infracted him for their possession. At his disciplinary hearing Walker pleaded not guilty and maintained the knife and bedding belonged to the cell's previous occupant as he ...

Refusal to Help Prisoner Eat Illegal

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 4
Filed under: Classification, Transfers, Disabled Prisoners, Nervous System, Food, Qualified Immunity. Location: Wisconsin.
A Wisconsin state prisoner suffering from amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease, had difficulty eating due to weakness in his arms, hands, jaw, facial and throat muscles used in eating due to the disease's progression. Part of the treatment for ALS is good nutrition. He filed ...

RFRA Must Be Argued on Merits

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 4
Filed under: Religious Freedom Restoration Act, Qualified Immunity, Religious Freedom, Religious Practices. Location: Nebraska.
Prisoners at the Nebraska State Penitentiary filed suit under the Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb claiming that prison officials had violated their right to practice their religion. The prisoners are adherents to Asatru, an Icelandic term for the ancient religion of the Teutons of Northern Europe. ...

Failure to Treat Teeth States Claim

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 5
Filed under: Retaliation, Retaliation for Filing Grievances, Dental Care, Administrative Exhaustion, Appeals, Qualified Immunity. Location: Missouri.
Mark Kinney is a Missouri state prisoner. Kinney went to the prison dentist, Dr. Kalfus, for removal of a tooth that was chipped and decayed, to have a cavity filled and for treatment of gum disease. Kalfus pulled the wrong tooth and acknowledged doing so at the time. The extraction ...

Disputed Disciplinary Facts Require Reversal

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 5
Filed under: Disciplinary Hearings, Disciplinary Litigation, Notice of Charges, Disciplinary Appeals, Summary Judgment. Location: New York.
Michael Mays is a New York state prisoner who was infracted for allegedly refusing to return to his cell when a guard ordered him to do so. After a disciplinary hearing Mays was found "guilty" and sentenced to segregation, loss of good time and privileges. He appealed the finding to ...

Attorney Fees for Contempt Hearing

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 5
Filed under: Conditions of Confinement, Totality of Conditions, Attorney Fee Awards, Costs, Contempt (Civil Procedure), Consent Decrees. Location: Wyoming.
Jail prisoners of the Natrona County jail in Wyoming initiated contempt proceedings against jail officials for not having complied with the terms of a consent decree entered into between prisoners and jail officials over jail conditions. The district court concluded that the county jail officials were indeed in contempt and ...

4th Circuit Clarifies Eighth Amendment Standard

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 6
Filed under: Eighth Amendment, Excessive Force, Guard Brutality/Beatings. Location: Virginia.
In the May, 1994 issue of PLN we reported Norman v. Taylor, 9 F.3d 1078 (4th Cir. 1994) in which the appeals court reversed the dismissal of a Virginia jail prisoner's § 1983 suit which alleged that a jail sergeant had hit him in the face and thumb with a ...

Idaho Cons Entitled to Pen and Paper

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 6
Filed under: Court Access, Writing Implements, Probation. Location: Idaho.
This is an Idaho criminal case which addresses prisoner's right of access to the courts in the habeas context, we address only that part of the case dealing with prison conditions. In 1989 James Free was convicted and sentenced to a term of three to ten years with the district ...

Transferee Entitled to Sending State Case Law

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 7
Filed under: Out of State Transfers, Transfers, Court Access, Law Library Access/Adequacy. Locations: New Mexico, Oklahoma.
James Clayton is an Oklahoma state prisoner subjected to an involuntary out of state transfer to New Mexico. Clayton had several pro se legal matters pending in Oklahoma state courts at the time of his transfer. The New Mexico prison system did not have any Oklahoma legal materials and relied ...

Prison Alcohol Program May Violate Free Speech

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 7
Filed under: Civil Procedure, Standing, Mootness, Qualified Immunity, Drug Treatment/Rehab, Required Religious Programming. Location: Iowa.
The Iowa Civil Liberties Union (ICLU) and prisoners at the Clarinda Correctional Facility (CCF) filed suit under § 1983 challenging the DOC's expenditure of taxpayer funds on an alcohol rehabilitation program called "The Other Way." According to the complaint, this program has a heavy religious component which requires participants to ...

Retaliation Suit Requires Trial

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 7
Filed under: Prisoner-Prisoner Assault, Retaliation, Retaliation for Litigating, Cell Searches. Location: Virginia.
Allan Dillon is a Virginia state prisoner who was raped by another prisoner. Lawrence Dury was the Virginia DOC (VDOC) internal affairs investigator assigned to investigate the rape. During a search of Dillon's cell pursuant to the investigation, Dury discovered papers indicating that Dillon was in the process of filing ...

Detainees Can't Be Forced to Work

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 8
Filed under: Work, Prison Labor. Location: Arkansas.
Dickie Cokeley is an Arkansas state prisoner. While confined in the Arkansas DOC his criminal conviction was reversed by a federal court. Upon reversal of his conviction Cokeley asked prison officials to place him on an unassigned work status. They refused to do so and ordered him to work, when ...

Shortened Pens States Claim

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 8
Filed under: Court Access, Writing Implements. Location: Wisconsin.
Two prisoners in the segregation unit of the Waupun Correctional Institution at Waupun, Wisconsin, filed suit challenging the prison's practice of issuing segregation prisoners only the ink tube portion of a ball-point pen with which to write. Prisoners who modify the ink tube in anyway are only allowed a crayola ...

Retaliation for Grievances Illegal

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 8
Filed under: Retaliation for Filing Grievances, Disciplinary Hearings, Retaliatory Discipline, Administrative Exhaustion. Location: California.
Gary Hines is a California state prisoner. Hines filed suit claiming that prison guards had broken his television set in retaliation for administrative grievances he had filed against them. After filing a grievance against the guards who allegedly broke his television, another guard infracted him for allegedly tampering with the ...

Evidence Must Support Disciplinary Charge

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 9
Filed under: Disciplinary Hearings, Evidentiary Ruling (Disciplinary Hearings), Standard of Proof, Habeas Corpus. Location: Indiana.
Indiana is unique in that it does not provide any state court remedy for prisoners who lose good time in prison disciplinary hearings. As a result, Indiana state prisoners seeking the restoration of lost good time or expungement of infractions must file directly in federal court pursuant to 28 U.S.C. ...

U.S. S.Ct. to Hear Prison and Parole Cases

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 9
Filed under: Sentencing, Ex Post Facto, Parole. Location: California.
The 1994-95 term of the United States Supreme Court began on October 3, 1994. Among the cases scheduled for hearing by the Supreme Court are two cases previously reported in PLN which will have wide ranging effect.

California Department of Corrections v. Morales, 93-1462, is the state's appeal from the ...

BOP Phone Litigation Update

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 10
Filed under: Preliminary Injunctions/TRO's, Class Certification, Seizure of Prisoner Funds, Telephones, Telephone Access, Telephone Rates. Location: Kentucky.
In the March, 1994, issue of PLN we reported on Washington et al. v. Reno, et al., a lawsuit filed by women prisoners at FCI Lexington challenging the federal Bureau of Prisons (BOP) newly implemented Inmate Telephone System (ITS). [Editor's Note: For a full account of the ITS operations and ...

MA DOC Uses New Phone System

Loaded on Nov. 15, 1994 by Paul Wright published in Prison Legal News November, 1994, page 11
Filed under: Telephones, Telephone Access, Telephone Rates, Telephone Monitoring. Location: Massachusetts.
By Paul Wright

As part of the nationwide trend towards more restrictive and more expensive prison phone systems, the Massachusetts DOC signed a contract with NYNEX on January 27, 1994, for the provision of phone services to Massachusetts prisons. The new phone system includes monitoring and taping of all calls; ...

WI Removes Weights and Tennis Courts

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 12
Filed under: Conditions of Confinement, Exercise, Prisoner Privileges. Location: Wisconsin.
Wisconsin's hard-line Republican Governor Tommy Thompson, apparently concerned about his upcoming re-election bid, has ordered all weights and tennis courts removed from the Wisconsin prison system by October 1, 1994. Wisconsin prison officials were in the process of conducting an inventory of weights and tennis equipment after which the weights ...

Asset Forfeiture is Dysfunctional Policy

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 12
Filed under: Money/Property, Forfeiture. Location: United States of America.
Two sociologists received the l994 Academy of Criminal Justice Sciences Award for their undercover study and critical analysis of asset forfeiture's impact on police procedure. Drug Enforcement 's Double-Edged Sword: An Assessment of Asset Forfeiture Programs, by Mitchell Miller, Tennessee State University, and Lance H. Selva, Middle Tennessee State University, ...

Hazardous Waste Found in WI Prison

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 13
Filed under: Guard Misconduct, Prison Industries, Conditions of Confinement, Environmental Law, Water. Location: Wisconsin.
Since 1993 the Wisconsin Department of Corrections has been the subject of several scathing investigations by that state's Department of Natural Resources (DNR). The investigations have made several alarming discoveries, concluding that the DOC is failing to keep track of and properly dispose of hazardous industrial and agricultural waste.

An ...

DOJ Releases ADA Advisory Report

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 13
Filed under: Federal Statutory Law, Americans with Disabilities Act. Location: United States of America.
In 1990, Congress passed the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12134, which prohibits discrimination against the disabled by state and local government entities. The ADA applies to criminal justice agencies, including prisons and jails. The Department of Justice (DOJ) is one of eight federal agencies charged with ...

Killer Workplace

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 14
Filed under: Work, Work Conditions/Safety, Crime. Location: Washington.
On June 15, 1994, a conference on workplace violence was held at Boeing's Renton campus near Seattle, WA. The topic was growing workplace violence, defined as workers striking out rather than companies maiming, poisoning, exploiting workers and the community. According to Dr. Kevin Flynn, a consultant to Fortune 500 companies, ...

MI Parole Consent Decree Vacated

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 14
Filed under: Consent Decrees, Sentencing, Parole. Location: Michigan.
In 1977 Michigan state prisoners filed a class action suit challenging the procedures by which they were granted or denied parole. In 1981 the US district court in Michigan entered a consent decree settling a lawsuit between the Michigan state Parole Board and Michigan state prisoners. The decree required the ...

Overcrowding Leads to Pneumonia

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 14
Filed under: Medical, Respiratory, Overcrowding, Ventilation. Location: Texas.
On September 8, 1994, the New England Journal of Medicine published the report of an investigation conducted by the U. S. Centers for Disease Control and Prevention into the outbreak of a deadly form of pneumonia in the Harris County (Houston) jail in Texas in 1989. The outbreak was caused ...

Cooling Towers Spread Legionnaire's

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 14
Filed under: Medical, Respiratory, Ventilation. Location: Michigan.
The Federal Centers for Disease Control (CDC) has issued a report stating that cooling towers holding contaminated community water can lead to serious outbreaks of Legionnaire's disease, a pneumonia like illness that can be fatal. The bacteria causing the disease are spread by water or air conditioning systems. More than ...

Lawyers Deny Inmate Discovery Pending Motion to Dismiss in Federal Court

Loaded on Nov. 15, 1994 by Allan Parmelee published in Prison Legal News November, 1994, page 15
Filed under: Civil Procedure, Discovery. Location: United States of America.
In all the lawsuits brought by federal prisoners against prison staff, the U.S. Attorney who defends them will usually file a Motion to Dismiss or in the Alternative for Summary Judgement in favor of the defendants. Plaintiffs should respond quickly and firmly requesting the court to review the matter or ...

Santeros Win PI

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 16
Filed under: Discrimination, Religious Discrimination, Preliminary Injunctions/TRO's, Religious Freedom Restoration Act, Religious Practices, Religious Property. Location: New York.
Santeria is a religion which combines aspects of Catholicism and African animism. Believers worship saints, or orishas, who have their own personalities and characteristics. Santeria is widely practiced in Caribbean and Latin American countries. In Church of the Lukumi Babah Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217(1993), ...

No Immunity for Beating

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 16
Filed under: Guard Brutality/Beatings, Restraints, Immunity/Liability, Qualified Immunity. Location: Iowa.
Thomas Munz was an Iowa state prisoner called to testify in federal court. Munz was taken to the court by federal marshals. En route to the court, while bound hand and foot, Munz became violent and vandalized the interior of the marshal's car. When Munz and his escort arrived at ...

WA Digital Probe Suits Barred

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 16
Filed under: Searches, Body Cavity Searches, Estoppell, Qualified Immunity. Location: Washington.
In 1984 the Washington state DOC opened two control units and initiated a policy whereby all prisoners transferred to the Intensive Management Units (IMU) were subjected to a digital rectal probe, or digital rape, upon entry. The "searches" were conducted on a blanket basis with no individual suspicion being required. ...

Committing Journalism - The Prison Writings of Red Hog (Book Review)

Loaded on Nov. 15, 1994 by Bill Jeffcott published in Prison Legal News November, 1994, page 17
Filed under: Media, Access to Media. Location: United States of America.
By Dannie M. Martin & Peter Y. Sussman

Review by Bill Jeffcott

"I committed bank robbery and they put me in prison, and that was right. Then I committed journalism and they put me in the hole. And that was wrong." This is the opening statement in Dannie M. Martin's ...

Scared Witless

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 18
Filed under: Reviews, Crime/Demographics, Crime. Location: United States of America.
The fear in her voice reverberated throughout talk-radio land. The elderly woman was among a parade of callers who passionately supported the caning of 18-year-old Michael Fay, who'd pled guilty to vandalism in Singapore. When the host asked why such a brutal punishment was appropriate, she replied that something, anything, ...

The London Hanged: Crime and Civil Society in the 18th Century (Book Review)

Loaded on Nov. 15, 1994 by Sandy Judd published in Prison Legal News November, 1994, page 18
Filed under: Reviews, Prisoners-International, Death Penalty/Death Row, Death Penalty. Location: United Kingdom.
by Peter Linebaugh
 
(Cambridge University Press, 1992)

Review by Sandy Judd

A title like The London Hanged might make a person think this is another book about death--an 18th century version of those true crime books about people like Ted Bundy--but it isn't. Instead, it's about the struggle to survive. ...

Crisis Continues in Salvadoran Prison System

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 19
Filed under: Prison Rebellion, International, Prisoners-International. Location: El Salvador.
As reported in the October, 1994, issue of PLN, the prison system of El Salvador remains locked in a crisis of overcrowding, spiraling violence and unrest. This trend continues. On September 13, 1994, prisoners at the Central Penitentiary in San Vicente, in the central part of the country, rioted, leaving ...

A Prison a Week

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 19
Filed under: Reviews, Crime/Demographics, Statistics/Trends. Location: United States of America.
According to the Bureau of Justice Statistics Bulletin, Prisoners in 1993, the nationwide 7.4% growth rate of state and federal prison populations in 1993 translates to 1,254 additional prisoners each week. This rate of growth can only be supported by building one 1,254 bed prison somewhere in the United States ...

Asian Prison News

Loaded on Nov. 15, 1994 published in Prison Legal News November, 1994, page 19
Filed under: Medical, HIV/AIDS. Locations: China, Indonesia, Thailand.
Indonesia: The warden at the Kedungpane prison in Semrang announced that new good time releases would be offered to prisoners who donated blood and organs. Each blood donation by a prisoner would result in a six month time reduction per year. Donation of an organ would bring an immediate time ...