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FDOC CORRECTIONAL OFFICERS INDICTED BY FED~ .Fort Myers, FL - Ten Florida Department of Correction's (FDOC) correctional officers were indicted July 10, 1998, on federal charges returned by a ft:deral grand jury in the death of a state prisoner. The prison guards, two ofwhom were high ranking officers, were each charged with a seven-count indictment-for violating the civil rights of prisoner John Edwards. Seven the officers were from Charlotte' Correctional Institution located . near Fort Myers and two were from Zephyrhills Correctional Institution located near Tampa. The grand jury found that prisoner John Edwards had been subjected to numerous beatings over a several day period before he eventually attempted to commit suicide by cutting his own wrists, and then chained to a steel bed, beat again and left to bleed to death by the the officers. Edwards who reportedly was HlV positive had allegedly bit a· corrections officer at Zephyrhills CI in August 1997, According to the indictment, the officers then plotted to injure, threaten and intimidate Edwards and to retaliate against him because he bit a colleague. The beatings started at Zephyrhills CI and then continued when Edwards was transferred to the Charlotte CI prison. The corrections officer allegedly or kicked and beat Edwards, repeatedly slammed him into walls, all while he was wearing handcuffs. After three days of being bnrtalized Edwards allegedly slashed his arm in an attempt to get away from the beatings. He was then moved to a psychiatric dorm at Charlotte CI where after another beating while chained naked to a bed he finally bled to death after 12-hours without medical treatment "He bled to death without receiviJ)g sufficient medical care," said U.S. Attorney Charles R. Wilson. Edwards was reportedly found dead, still chained to the bed, August 22, 1997. A medical examination after his death showed several cuts and bruises, but concluded that he died of blood loss from the selfinflicted wound. "He did not die as a result of the beating. He died as a result of bleeding to death over a 12-hour period," said Assistant U.S. Attorney Doug Malloy. A tenth FDOC officer, John Robbins, apparently blew the whistle on the others. He was allowed to plead guilty to a single conspiracy count the same day the other indictments came down before U.S. Magistrate George Swartz. Each of the correctional officers faces charges of up to ten years in prison and a fine of $250,000 on each count, ifconvicted. The officers charged were: Capt Donald B. Abraham, 38, of Punta Gorda; capt Kevin W. Browning, 33, of Punta Gorda; Michael Carter, 41, of Port Charlotte; Thomas J. McErlane, 38, of Port Charlotte; Robert M. Shepard, 48, of Port Charlotte; Gary T. Owen, 29, of Zephyrhills; Joseph P. Delvecchio, SO, of Zephyrhills; Paul R. Peck, 31, of Port Charlotte; and, Richard Wilks, 30, of Port Charlotte. "I am not surprised that this occurred in a Florida prison," said Teresa Burns, FPLPs publisher, "I am only surprised that it resulted in itidictments. Such beatings and abuse of prisoners does not appear to be uncommon, my office receives approximately 10-J5 reports of such abuse in the Florida system each month. The abuse, and possibly deaths, are expected to increase nqy where prisoners have had their access to' the courts severely obstructed. That access was basically the only check and balance on correctional officers who often are known to the FDOC to have a history ofabusing prisoners, yet are seemingly encouraged to engage in more of the same by not being fired and in cases being promoted to positions CENSORING READING MATERIAL ADA UPDATE NEW PROPERTY DEFINITIONS BECOME EFFECTIVE SMOKING GUN IN THIS ISSUE • lo000-o NOTABLE CASES 1998 LEGISLATIVE HIGHUGHTS ' PROPOSED RULES UPDATE 2 6 8 8 9 12 14 -1 overseeing other officers of the same stripe." . The above nine officers were fired after the FDOC realized that federal indicnnents were likely. This is reportedly the largest single indicnnent of prison guards in Florida's history stemming from a prisoner's death. Federal investigators investigated this case for almost a year before the grand jury returned the indictments. While the justice deparnnent officials did not actually accuse the FDOC ofattempting to cover up for the officers, little active cooperation from the FDOC was forthcoming until after the indictments came down. On August 3, 1998, the FDOC announced that another officer had been fired in cOMection with Edward's beatings and eventual death. Sgt. Shawn Grueber, who had just transferred to Charlotte CI from Desoto CI, testified before the grand jury just days before the indictments were handed down against the other officers on July lOth. Before the grand jury Grueber revealed what he had withheld from federal investigators during their investigation. According to Grueber, while he was working in the psychiatric wing's housing unit at Charlotte CI a group of guards called him over to where they were beating Edwards and told him "This is how we do things in Charlotte." This apparently occurred after Edwards had slashed his arms with the sharpened edge ofan ID card clip and was chained down naked on the metal bed. The guards, in Grueber's presence, then kicked and beat Edwards some more. Even though Grueber has not been iRtticted, the FDOC finally. concluded that he had joined in the assaults on Edwards and had failed to file the use of force reports required whenever force is used on a prisoner. Pederal investigators had already concluded that a number of the indicted guards and supervisors had filed false reports concerning the incident. and that these reports had been "rubber-stamped" by those higher up. The FDOC has went into damage control mode and aMounced that Grueber's firing is the first in a series of disciplinary actions expected to be taken in connection with Edward's F.P.L.P. VOLUME 4, ISSUE 5 abuse and death. Prison activists are skeptical of the FDOC really taking any meaningful action to reduce prisoner abuse. The FDOC has been promising to straighten out Charlotte CI for years,. but has been unable, or unwilling, to do so. Between 1991 and 1994 . Charlotte CI had twice the prisoner-onprisoner serious assault rate as any other prison in the state. Charlotte CI has experienced guards participating in racist rallies that resulted in indicnnents a few years ago. During 1993 federal investigators found that a massive fraud scheme was being perpetuated by the superintendent of Charlotte CI and several high ranking officers at the prison regarding overtime pay. .Prisoners have alleged that officers at Charlotte CI have for years used prisoners to assault other prisoners. Numerous prisoner lawsuits are pending against Charlotte CI because of the uncontrolled violence at the prison. This would be a good opportunity for the FDOC to finally clean up Charlotte CI and other prisons around the state that continue to condone prisoner abuse. This is not something that one would want to hold their breath waiting for, however. [Sources: St. Petersburg Times, Ft. Walton Bch. Daily News] • FLORIDA PRISON LEGAL PERSPECTIVES POBox 660-387 Chuluota, Florida 32766 n.o Publishing Division of: LlGALAlDo_noN.INC. A Not-For-Profit Organization (407) 568-0200 Web: http://mcmbcrs.lIOJ.comIfplplfjllp.hlml FPLAO DIRECfORS TERESA BURNS BOB POSEY DARRYL McGLAMRY DAVID W. BAUER., Esq. FPLPSTAFF Pulllls!ler Editor TERESA BURNS BOB POSEY Layout Editor JOHN OAKS Resurdl SHERRI JOHNSON Admin. Assls. USA FAULKNER TRACIE ROSE FPLP ADVISORY BOARD WILLIAM VAN POYCK PHDJP BAGLEY· SHARON SIMMONS 1CRRY VAUGHN. MICHAEL LAMBRJX ALAN J. canoN • JAMES QUIGLEY JAMES TAYLOR. JUDIE IDGHTOWER CARL WEU.S • GLENN SMITH BRIAN MORRIS· EARN HOWARD LINDA 00T1lJEB - SAIl.YWILCOX JANE PRAlT • PAUL ADAMS KIMBERLY PEOPLES· PCI'ER BLANTON JAMES MAJOR· ENRIQUE DiAl SCOTIGRAY CENSORING READING MATERIALS The FL Department of Corrections [FDOC] recently implemented new regulations at Chapter 33-3.012 (5110/98) F.A.C., and Policy and Procedure Directive (PPD) 7.01.01' (5/13/98), concerning prisoners' access to admissible reading materials through the mail and procedures for rejecting such materials.· FPLP is concerned that many of the new regulations do not appear to comply to established substantive or procedural law. Additionally, certain provisions in the PPD are not contained in the Chapter 33 Rules yet appear to meet the definition of "rule" at Ch. 120.52(12), F.S., that have not been formally adopted according to Ch. 120.54, F.S. During early June FPLP received a notice of rejection from Jackson CI Work Camp indicating that FPLP. Vol. 4, Iss. 3, had been rejected by that institution for an alleged "threat to security or or- FLOIUDA PRISON LEGAl. PERSPECTIVES it plbli>Ilod bi· IlIIIlllhIy by FIGridI ~ Lcpl Aid O<pNzalion, Inc. IS232 E. CoIolliaI Dr.• o.t&noIo. FI 32128. MailUla AddIea: fPLAO. P.O.1Ioa 660-317. ~ FL 32766. FPLP it • Noa I'ra& ~ filaIsiIIa GO lIal FbilIa prlaott IIld crlmlIlII jwllco QSIalU wlIb IIlo sotI at.-idilla • ¥dlIde lilt --. InfamIIIlon IIld _ &ll'<eIilIa prise-., IIldt fImlIia, filaldI IIld Jo\'Cd llllOI, IJla gcnaal pollIic at FIori<lIIIld tbe US RaluaioI> til IIld m:iclM>m. .............. at IimiIJ Iia, ciW nsJlU. COIllliIimlJ at COIllIllanalt IIld oppooIIll1iIia,.....-ma.... CIllIlll ..... Cot priIatlcn, IIld pnllIIOIina I<CClIlItlaIlilily or prison cftlciab. uo III lJaIcs FPLP is da/sned to addIaI 1110 ilItonMIIca ill fPLP dcco aaa -..riIJ n&a IIlo cplolom at IIlo """"'*t lUll NlliaIioa at FPLP iI . . . pcSIIlIe by Ycu, IJla .... IIld JltPIlClftC'.1!lIalIatl1Uhocriptica IIld pncnl cIonatlcN. iIIlqueIlod clooaticaI Cot. """ JC&t tuhalpdclIuc S ~ SIOoIl<e citi=\ m·iIlIIitIltlonl Ct bwiDc:ua. FPLP radcn IIld IIqlpCIICn are l:mlod to-.illW utida, __ iDfcrm&lIcn, IIld "'IIIlCJlioI:I Cot pcujlIIo pod>liatiaa s..=ip!ion \lallIllcl\1 wiD be 1daIowlcds<d by the ...... ICribot'I recdpI of the <umIll i.... at FPLP. FPLP'. no.· JII«Iloy wlImtccr 1IaIJ'_ rapoad 10 ~ rot ItpI ad\'ice Due 10 """"'" atmalJ IIld IlJlF IilIIiwlo:Is III ~ _ be rapolllloI to. boa IIIl1l1i1 dcco Raivc iDlIivilbiaI -.-..a - I'amiIoion I. glIIIIaIlO rcprinll!lJlai&ll. FPLP "",Yidod fPLP IIld lIlY iDdicolod JIIIhor ... idaJliBod ill IJla 1tpinI. NonCE The infomllltion in this pubJiClition provides news lind opinion fiom VlIriaus sources lUld llllIy not provide sUfficient infOl11l4lion to de4I with 1I1Cga! piob/em. Neither the P.l!blishcr. nor ~ WIIII'l1IIlS or reJ!rescnts the suitibility or the infOfl1llltion in this publiClition for instituting lIllY legal lICtian. An ilUOmcy or other knowlciJ8C.lIble j)CfSon in a dispuled o.rea should be collluited for cxpcricm:c in IcpI~. J'bis JlU~lic:lIlion should not be relied on as lwthonlabvc C1'b1ion. Page 2 der." Following that notice, we received information that prisoners at other institutions were having Vol. 4, Iss. 3, also rejected based on the Jackson CI rejection (this is one of the new policies that do not appear to comply to established law). Our staffappealed the Jackson CI rejection, as did some of those prisoners who had their issues rejected, to the FDOC central office and we were notified on June 15, 1998, that the rejection had been overturned by the FDOC Literature Review Committee. All prisoners should have received their copies of Vol. 4, Iss. 3, that had been withheld. All institutions were required to be notified that the "rejection" was overturned. FPLP prisoner subscribers are advised that FPLP staff will appeal every ,ejection of FPLP that we are notified about. If a rejection occurs. prisoner subscribers also need to appeal such rejections directly to the central office under the new reading material grievance appeal procedures at Rule 33-3.012(6), F.A.C. If the new rule$ and PPD are not changed to comply with established law it is suspected that litigation is going to be necessary. The perceived problems with the new rules and PPD are numerous. In many instances they appear to intentionally circumvent established constitutional law, and statutes of the state. Below is discussed some of these problem areas that would be equally applicable to any publication that is rejected under these new rules and policies: At Rule 33-3.012(5)(a) is stated with mandatory language that: "The Superintendent or designee shall reject any publication ... For'the purposes of rejection of publications, the superintendent's 'designee' shall be limited to the assistant superintendent or chiefof a community facility." That rule would basically appear to comply with the guideline of the U.S. Supreme Court that only a superintendent of a particular institution may reject a publication. In Thornburgh v. Abbott, 109 S.Ct. 1874, at 1883 (1989), the court stated: [W]e are comforted by the individualized nature of the determinations required by the regulation. Under the regulations. F.P.L.P. VOLUME 4, ISSUE 5 no publication may be excluded unless the warden himself makes the determination that it is "detrimental to the security, good order, or discipline of the institution or ... might facilitate criminal activity. " [Federal Code .cite omitted]. This is the controlling standard A publication which fits within one of the "criteria" for exclusion ~ be rejected, but only if it is determined to meet that standard under the conditions prevailing at the institution at the time. Indeed, the regulations expressly reject shortcuts that would lead to needless exclllSions. See sec. 54o-70(b) (nondelegability of power to reject publications): sec. 540.71(c) (prohibition against establishing an excluded list ofpublications). We agree that it is rational for the Bureau to exclude materials that. although not necessarily "likely" to lead to violence, are determined by the warden to create an intolerable risk ofdisorder under the COnditions of a particular institution at a particular time. The court stated that it is the "controlling standard" that "no publication may be excluded unless the him: ~ makes the determination •..." The court was "comforted'~ by the individualized nature ofthe determinations, i.e., that only the warden [read superintendent in Florida] may reject a publication, and the court noted that they approved the regulations being examined in Thornburgh because the regulations had a provision that the warden's power to reject publications was nondelegatible. Florida stretches the nondelegation with Rule 33-3.012(5)(a) by authorizing the superintendent to delegate his power to reject a publication to an assistant superintendent or chief of a community facility. But, that is no big problem. A court would probably hold that an assistant superintendent or chief of a community facility had enough knowledge of the operation and security problems ofhislher particular institution to make an informed determination whether to reject a publication or not. No, the problem is. that the FDOC intends to circumvent the superintendent totally in certain instances. Even though Rule 33-3.012(5)(a) states that the authority to reject is limited to the superintendent or two specified designees, the new PPD is a much different matter. And mm the PPD, not the Chapter 33 rule, is what the FDOC ~ intends to follow. PPD 7.01.01 VII. A. I. states: If the publication has been rejected at another location, the mailroom supervisor shall prepare a rejection notice for each inmate receiving same, using the information provided in the "REVIEW" eform posted on the Admissible Reading Material Bulletin Board, and sign it. Only in this instance can a rejection notice be signed by a mailroom supervisor. This is authorized in this instance because the mailroom supervisor is not the rejecting authority; rather, the rejecting authority is the Superintendent or designee at the co"ectiona/ institution that posted the rejection notice on the Admissible Reading Material Bulletin Board [this "Board" is an FDOC com- puter network site that is accessed at every institution mailroom now} [these paragraphs revised 8/6/98, see End Note]. This PPD greatly expands the mandatory limits of Rule 33-3.0l2(5)(aHb!! the only persons authorized to reject a publication is the superintendent or assistant superintendent or chief of a community facility. This PPD has not been adopted as a "rule" even though it exceeds the adopted rule of Chapter 33, in apparent violation of the above stated F.S. 120.54 required rulemaking statute. See also: PPD 1.01.01 II. A., and 1.02.02111. B. Even more problematic is that the delegation of the authority to reject publications to a mailroom supervisor does not comply with Thornburgh, as above. Mailroom officers are usually low ranking officers and could not be said to be knowledgeable enough about the security of a "particular institution at a particular time" to make an informed decision to reject a publication. There is another problem apparent. The PPD "claims" that the mailroom supervisor is authorized to make such a rejection because "the mailroom supervisor is not the [real) rejecting authority; rather the rejecting authority is the Superintendent or designee at the institution that posted the rejection notice ...." What. this means is that not only does the PPD provide that someone other than the superintendent or assistant superintendent . Page 3 at your institution is "authorized" to reject a publication, but also that the publication will be rejected in such case by a mailroom supervisor based on a determination by a superintendent, or his designee, who is at another institution. Such superintendent or designee certainly is not informed of security conditions at your 'particular institution." Look back at what Thornburgh said above. The court specifically stated it was comforted by the fact that the regulations only allowed a publication to be rejected by the warden himself based on a determination "under the conditions prevailing at the institution at the time." And the court agreed that such rejection should only occur after consideration is given to the conditions of a "particular institution at a particular time." A superintendent at ~ institution cannot "authorize" publication rejections at your institution. The superintendent [warden) can only authorize rejection of publications at hislher institution; the institution where he/she is familiar with the security conditions. Even worse, when you read and understand exactly what the above referenced PPD is truly proposing. combined with the clear violations in PPD 7.01.01 VI. B., you will see that the FDOC intends that one superintendent at one institution will be able to "authorize" the rejection of a publication at every institution in the state. This definitely violates ThornbUrgh. sexual conduct is imminent. The depart- gerated response to concerns of institument sholl have the authority to prohibit tional security and safety. admission of such materials at a particular state correctional facility A prison warden or superintendent may upon a determination by the depart- rtYect a publication only ifit is detrimenment that such material or publications tal to the security, good order. or disciwould be detrimental to the safety, pline ofthe institution or ifit mightfacllisecurity. order or rehabilitative interests tate criminal activity. However. the pubof a particular state correctional facility lication may not be rejected solely beor would create a risk of disorder at a cause its content is religious. philosophiparticular state correctionalfacility. .cal, political, social. or sexual. or because its content is unpopular or It is obvious that the drafter of the repugnant Thornburgh V, Abbott. above law was familiar with Thorn- (1989) 109 S.Ct. 1874. Correctional Jmm!L note that the word particular is officials may prohibit sexually explicit specified three times in this statute. It is materials where the materials could reaequally obvious that the drafter of the new sonably be expected to circulate among FDOC rules and PPD was either not famil- the inmates and cause a potentially disiar with Thornburgh, or, more likely, in- ruptive environment because of the contentionally sought to circumvent Thorn- tent of the material Lambr/x v. Dugger Compare PPD 7.01.01 VI. B. with (1992) FlaApp DI610S02d 1366. mmm. the statute, note the way in which that PPD seeks to expand "particular institution" to A broad definition of ''sexual nature" the "entire department." . as content in reading material would inThe legislature was aware of the poten- clude articles in magazines such as Costial problems that could be caused by this mopolitan. Even Time and Newsweek may statute if not strictly complied with. In conlain articles dealing with content ofa the Final Bill Analysi~_ & Economic Im- sexual nature such as safe sexual pracpact Statement notes of the Committee on tices or homosexuality. In addition. there Corrections for the FL House of Repre- are numerous publications such as rosentatives, dated June 23, 1995, concern- mance novels which have content of a ing House Bill 2531, which examined the sexual nature. If the definition of "sexual above proposed statute before its adop- content" is broad or vague, it may be tion, is stated at Section III. D. 18.: attacked on grounds that it violales an inmate's or a publisher's constitutional right offree speech. The language lacks specificity with regard to the definition of reading material with content of a "sexual nature. It. The section would permit the Department to adopt rules which may or may not be much different than rules currently· in place. Under current rules and case low. reading material which contains text and pictures ofsexual behavior or pictures of unclothed males and female in provocative poses. may be received by it'mates. Depending on how Ihe Department crafts the rules in response to this section and how .the rules are implemented at each correctional facility, this section may result in additional litigation against the State. materials or publications with content Amendment where it is reasonably rewhich depicts sexual conduct as defined lated to a legitimate correctional obby sec. 847.001 or presents nudity in such jective. such as the protection ofprison a way as to create the appearance that security. and does not represent an exag- • First, the superintendent of your particular institution must determine that Now let us look at a specific type rejection that is occurring that is of interest to many prisoners: rejection of sexually explicit materials. As all Florida prisoners who subscribe to adult-type magazines now know. the FDOC is engaged in wholesale rejection of such magazines. Courts have split on whether such materials may be rejected or not, that will not be addressed here. But are the rejection "procedures" themselves in compliance A prison regulation which impinges on with the law? an inmate's constitutional rights is valid In 1995 the FL legislature added the as long as it is reasonably related to following provision to F.S. 944.11: legitimate correctional interests Turner v. For the FDOC to comply with the above state law, two (2) determinations must be made by the superintendent [the statute uses the word "department," but Thgrnburgh noted the individualized na· ture requires that the "warden himself' of the particular institution must make the &!bJJ! (1989) 482 US 78. A particular determination) before sexually explicit (2) The department 'Shall have the au- restriction agecting the receipt ofpublica- reading materials or publications are authority to prohibit admission of reading tions is permissible under the First thorized to be rejected: F.P.L.P. VOLUME 4, ISSUE 5 . Page 4 the material "depicts sexual conduct as defined by sec. 847.001 or presents nudity in such a way as to create the appearance that sexual conduct is imminent." superintendent at that particular institution that the material or publication presents a threat to security or order of that particular institution. Otherwise. you have a rejection based purely on the "content" of the material, which the Supreme • Second, the superintendent must Court in Thornburgh: Turner v. Safely, determine that the "material or publica- 107 S.Ct. 2254 (1987); and Procunier tions would be detrimental to the v. Martinez, 94 S.Ct. 1800 at 1811 safety. security. order or rehabilitative (1974), condemned as "content-based state restrictions" and "suppression of expresinterests of a particular Uilii or correctional facility or would create a risk sion." Without a determination that the mateofdisorder at a particular Uilii or state rial, regardless of the content, is detricorrectional facility." mental to security or order of the instituAccording to this statute. these two de- tion. then the rejection cannot be said to terminations must be made to reject sexu- be "neutral." See: Thornburgh at 1882-83. ally explicit material. And, these two Failure to determine, and state on the determinations must be made in relation to rejection notice [Martinez due process conditions at the particular institution requires notice to prisoner of reasons for where the materials are being rejected. rejection]. that it has been deteimined The "security" determination is th~ that the material or publication is!u!1b most important. and essential, of the two sexual within the meaning of F.S. determinations that must be made. The 944.1 1(2), and a threatto "safety. security. Thornburgh court applied the four-prong order...." makes the rejection unauthorized test that was established in Turner v. by the FL statute and unconstitutional purSafely. 107 S.Ct. 2254 (1987) in deciding suant to the First and Fourteenth AmendThornburgh. The first prong is that the ments. [While Martinez was overruled reasons for the rejection must be in Thornburgh concerning the standard "legitimate and neutraI." Security reasons to be applied when addressing the constiwould meet the "legitimate" aspect of this tutionally of prison rules regarding censorprong [Thornburgh at 1882]; but without ship, the due process requirements estaba determination that the material would lished in Martinez survived Thornburgh. present a security threat, it is prohibited e.g. Lawson v. Dugger. 844 F.Supp. 1538. to base the rejection solely on the contents 1543-44 (S.D. Fla. 1994). and were even of the material. such would not be clarified with the Thornburgh court's specific approval of the due process protec"neutral". Id. Rejection notices are being received tions contained in the regulations being by FL prisoners on adult magazines that examined in that case..M. at 1878]. And where the rejection notice is only state that the material is being rejected because it "depicts sexual con- signed by a mailroom supervisor. instead duct as defined by sec. 847.001 or ...." of the superintendent, based on a determlAbsolutely no determination is being nation by a superintendent at another instiMted on many of the actual rejection tution. then another violation exists as disnotices·;that the material is both sexual cussed above.[See End Note]. This article discusses only some of the and "detrimental to safety, security, order or rehabilitative interests" of that more serious and obvious procedural due particular institution. This is a serious er- process problems with the FDOC's ror on the FDOC's part. Compare former rejection of reading materials/publicaRule 33-3.012(4)(g) (repealed 5/10/98) tions under these new rules and policies. with new Rule 33-3.012(2)(i) and 0> There are several other problems that be(EfT. 5/10/98) [security threat determi- come obvious when one becomes fully nation included in former rule concerning familiar with the law in this regard. The admissible reading material rules sexual content. missing from new rule]. Publications cannot be rejected be- which the FDOC had adopted and had in cause they are simply "sexually explicit:' efTect before May 10. 1998. were There must be a determination by the generally in compliance with the law [Thornburgh]. The FDOC had been forced om om F.P.L.P. VOLUME 4, ISSUE 5 to adopt those former complying rules during the case of Lawson v. Wainwright ene' Dugger. ne' Singletarv), 641 F.Supp. 312, affin part, remand in part 840 F.2d 781. reh den 840 F.2d 779.cert grand vac 109 s.a. 2096. on remand 897 F.2d 536, on remand 844 F.Supp. 1538. rev 85 F.3d 501. adhered to 844 F.Supp. 1538. rev 85 F.3d 502 (11th Cir. 1996). Now that that case is over. the FDOC has went back to rules and policies that do not appear to meet constitutional muster. Another area that needs to be looked at is that the former FDOC rules provided that a prisoner could look at rejected materials [as long as that would not be a security threat] before filing an appeal on the rejection. Former Rule 33-3.012(7) (Repealed 5/10/98). The new rule repealed that provision. Yet. such review appears to be required by due process. . See: Montcalm Pub. Com. v. Beck; 80 F.3d 105 at 109 (4th Cir. 1996). cert den Angelone v. Montcalm Pub. Com. 117 s.a. 296 (1997). Another problem area is that when the system-wide rejections occur under PPD 7.01.01 VII. 1.. the rejection notices being given at the "other institutions" based on the original rejection do not contain notice of the "specific reasons" for the rejection that identifies the specific material in the publication that lead to the original rejection. This practice does not provide due process. ~ee: Lawson v. ~. 840 F.2d 781. 786-87 (11th Cir. 1988). and 844 F.Supp. 1538. 1544 (S.D. Fla. 1994). The practice further appears to violate Rule 33-3.012(4)(b) (specific reasons for rejection must be given). A prisoner who does not receive notice identifying the specific "written or pictorial matterti that was found objectionable can hardly mount an effective appeal of the rejection. The prisoner who has material rejected without notice of the specific "written or pictorial matter" that was thought objectionable cannot be forced to rely on the appeal of the first prisoner who had the material rejected, at another institution. where the first prisoner was the only one noticed of the specific written or pictorial matter that was thought objectionable. This error obstructs those later prisoners receiving rejection notices from being able to mount an effective appeal of their particular rejection at their particular institution. Due process is not provided in Page 5 such a case. Prisoners intending to challenge a publication rejection should not even attempt it without first fully researching this area of the law. The new PPD certainly cannot withstand constitutional scrutiny. All identified errors, rule violations, and legal issues, should be raised in the administrative appeal to preserve them for judicial review. For a further understanding of this subject one should read the sections in the Self-Help Litigation Manual and the two volume set Rights ofPrisoners 2nd Ed., concerning publication rejections. An informative law review article is Thornburgh v. Abbott: Slamming the Prison Gates on Constitutional Rights, 17 Pepperdine Univ. L.R. 10111043, by Megan McDonald. One should also read all the available case law on this subject. A starting point in finding such cases could be the case notes listed in the Federal Digest 4th Ed., PRISONS, Key 4(8). The more one reads and becomes familiar with this area the clearer it will become. You will likely have to reread the cases and material several times. Remember the law has evolved since Procunier v. Martinez was decided. There have been some negative articles written about Thornburgh, but with consideration that specific due process protections do exist when publications are rejected, and recognizing the limitations that Thornburgh did establish on prison officials, there is still plenty to work with to challenge the FDOC's new admissible reading material rules and "policies." The remaining question is which forum -would be best-state or federal. To help resolve that question look at a dated, but still relevant, article entitled Prisoners and Due Process Litigation: An Invitation to the State Courts, in Prisoners and The Law, Vol. 1,5-3 through 5-17. Where rules are being violated, state statutes violated, a PPD that exceeds fonnal rules not fonnally adopted according to law, etc, then serious consideration should perhaps be given to seeking state court relief. End Note: On August 6, 1998, after the above article had been written, the FDOC revised PPD 7.01.01 VII. A. I.. The author had already assisted numerous prisoners in tiling rejection appeals that included a challenge to mailroom supervisors sign- i F.P.L.P. VOLUME 4, ISSUE 5 ing rejection notices. The FDOC denied the appeals, but then hurriedly revised the PPD to address the due process error. The PPD now states at this section: sources, and likely will be added to the Justice Department's appropriation bill. This would stream-line S2266 as the final appropriation's bill must be passed before the end of September. If the publication has been rejected at The bill would exempt "any Federal, another location, the mailroom supervi- State or local facility that incarcerates or sor shall prepare a rejection notice for detains juveniles or adults accused of, each inmate receiving same. using the convicted of, sentenced for, or adjudiinformation provided in the. "REVIEW" cated delinquent for, violations of criminal eform posted on the Admissible Reading law." This is the same definition found in Material Bulletin Board, andforward it the Prison Litigation Reform Act of 1996. to the superinJendent or designee for Not only will this bin exempt juvenile and signature. adult facilities from the ADA and Rehabili[The second paragraph is totally deleted in tation Act, but may also be considered to the revision.] exempt psychiatric hospitals that incarcerate criminally committed prisoners. The mailroom supervisor cim no Every prisoner, family member/friend, longer sign the rejection notice, but that prisoner rights advocates, disability rights does not solve the problem where they had advocates, should contact their U.S. rep~ signed rejection notices between resentatives to oppose the passage of this 5/13/98 and 8116198, as in the above arti- bill. Time is of the essence. Disabled Priscle. However, the revision only creates oners: have your family members and another problem for the FDOC. Where the friends write letters or call Florida's U.S. superintendent at your particular institu- senators and representatives immediately. tion signs a rejection notice, that was The U.S. Supreme Court has ruled in your prepared by a mailroom supervisor based favor, now efforts must be taken to prevent on a rejection at another institution by the. the U.S. Congress from legislating that the other institution's superintendent, without ADA will not protect disabled detainees your institution's superintendent having and prisoners. even seen the publication at issue, the Florida's U.S. Senators can be contacted as rejection is still not in compliance with below: Thornburgh. How is YQ!![ superintendent Senators Bob Graham or Connie Mack suppose to sign to reject a publication The Senate that he personally has not reviewed nor The Capitol personally detennined to be a threat to Washington. DC 20510 the security of hislher particular instituPH# 202-224-3121. tion at that particular time? This revision still does not comply with the law. - BOB BRIEFS POSEY • . ADA UPDATE In the last issue of FPLP was reported the June decision of the U.S. Supreme Court that held that the Americans with Disabilities Act (ADA) does apply to prisoners. See: "U.S. SUPREME COURT HOLDS ADA APPLIES TO PRISONS," last issue. In direct response to that finding, U.S Senator Strom Thurmond introduced a bill in the U.S. Senate on July 7, 1998, to specifically exempt state and 10cal prisons from both the ADA and the Rehabilitation Act. The bill, S2266, called the State and Local Prison Relief Act, was referred to the Committee on Labor and Human Re- Religious Freedom - Florida voters will vote this November on whether to include a provision in the Florida Constitution concerning a Religious Freedom Restoration Act. This past legislative session a statute was adopted creatine such a "law in Florida, but a constitutional amendment would be even stronger and could not be changed as readily as a statute can be. Ken Conner, a member of the Florida Constitutional Revision Commission and a member of Justice Fellowship's FL Task Force was key in defeating an effort by state attorney general Bob Butterworth to exempt prisoners from the constitution amendment proposal. The proposal will be submitted to voters without exceptions. Page 6 The provision will make it mandatory to the death penalty. So we must educate that the state show a "compelling them. then activate the people of this nagovernmental interest" before infringing tion. We must lead by example." - Sr. on any person's religious freedoms and Helen Prejean CSJ that any "compelling interest" be tailored to the "least intrusive means." -Juvenile Curfews - A new study by the Justice Policy Institute examining the Capital Punishment - In April the U.N. impact of juvenile curfews in the most called for a world-wide moratorium on populous California counties and cities capital punishment. In a report prepared found that curfews did not lower the juveby Bacre Waly Ndiaye, a lawyer and nile crime rate. The study found that in death penalty expert from Senegal, it was four of the largest CA counties there was found that the U.S. administers capital racial bias in curfew enforcement, and that punishment outside international stan- while curfews did not reduce crimes comdards, and in instances in violation of mitted by black and Latino youth, curfews international laws. The report found that were associated with a rise in misdethe death penalty is tainted in the U.S. by meanors by white and Asian youth. The racism, economic discrimination, and an study was funded by the CA Wellness excessive deference to victims rights. The Foundation and wilt be published in the report noted that the U.S. is only one of Sept. issue of Western Criminology Refive countries world-wide (U.S., Pakistan, view magazine. Saudi Arabia, Iran, and Yemen) that per- [Source: The Nation] mits the execution of offenders who committed their crime under the age of 18. Female Prisoners - In the November This is a violation of the Interna- 1997 Annual Report of the Florida Cortional Covenant on Civil Political Rights, rections Commission it was noted that which the U.S. signed. female prisoners in FL are more likely than male prisoners to be placed in a facilCapital Punishment - Sr. Helen Pre- ity hundreds of miles from their county of jean CSJ, author of Dead Man Walking commitment. The Commission found that and a leading activist in the Death Penalty this makes it extremely difficult for feAbolitionist cause, has been nominated male prisoners to maintain relationships for a Nobel Peace Prize. The prizes wilt with children and other relatives. The be awarded in October and if she wins it Commission recommended that the may contribute to the pressure in the U.S. FDOC implement a parenting program at to abolish the death penalty. Letters in major female institutions and design a pisupport of Sr. Prejean can be mailed to: lot work release program that incorporates Francis Sejerstad, Chairperson, The Nor- parenting and reunification with children wegian Nobel Committee, Dammen 19, for female offenders. The Commission N02SS Oslo Norway. Airmail to Norway also recommended that the FDOC convert is 60 centsl~ ounce and $lIounce. let- Jefferson CI into a male facility and conters should be short, stressing why the vert a comparable south Florida male indeath penalty should be abolished in the stitution into a female institution so that U.S., and how granting a prize to Sr. female prisoners can be placed closer to Prejean would pressure abolition of the home. The Commission should be contacted for more information on death penalty in the U.S. "1/ we are serious about stopping the these recommendations and their current violence in this country. then we simply status. Female prisoners' families and must stop our government from giving us friends should contact the Commission and our youth the examples that violence to express support for these recommenand vengeance are legitimate. We must dations: Florida Corrections Commisdemonstrate that killing is wrong no mat- sion, 2601 Blair Stone Road, Tallaha5FL 32399; Web PSge: ter who does it, and that there are plenty see of citizens willing to stand up and say www.dos.state.tl.us/fgils/agencies/fcc; 'Don't kill in MY name... We can do beller EMail: fcorcom@mail.dc.state.f1.us . than that. ' Only when people stand up to be heard and counted will our politicians feel secure enough to vote for alternatives F.P.L.P. VOLUME 4, ISSUE 5 Corrections Abuse - During July federal agents arrested three current and for- mer correctional officers charged with aiding and abetting the assault of prisoner . Toby Hawthorne. Hawthorne was one of the Missouri prisoners being held in a Brazoria, Texas, private prison and whose beating was videotaped in 1996 and later . released to the national news networks.• ARE FDOC EMPLOYEES SUPPLEMENTING INCOME FROM PRISONERS' FUNDS? During April 1998 the U.S. Postal Service initiated an investigation of possible theft of prisoners' funds from mail entering the South Florida Reception Center (SFRC) located near Miami. The investigation was started after the families of more than 30 prisoners incarcerated at the prison contacted the Postal Service to report that money orders they had sent to their loved ones had not reached them. Reportedly, money orders had been turning up missing from approximately December of last year, and amounted to severalthousand dollars. Prisoners in Florida cannot possess cash. Any money they receive must be sent to them from someone on the outside through the mail and in the form of a money order. All incoming mail is opened by prison mailroom personnel who are suppose to remove any money orders and credit them to the prisoners' account. SFRC superintendent Marta Villacorta responded to reporters that she was looking into the missing money, but it was too early to blame prison mailroom personnel. A spokesman for the union that represents many state prison guards in Florida, the Police Benevolent Association, stated that it- was hard to believe that prison guards would steal prisoners' money, that such had never been heard of by the spokesman before. Theft of prisoners' money orders and postal stamps is not a rare event in Florida's prisons. Almost every prison in Florida has experienced one or more incidents where prison mailroom persoMeJ, who often are not correctional officers and are only part-time employees being paid minimum wage, have been caught. stealing money orders. stamps and even prisoners' letters and cards. Usually these occurrences do not reach the media and are contained at the institution unreported to the police, with the guilty party often simply transferred to another prison to work, or laid ofT for a while until things cool down. This situation at SFRC did make the front page ofthe local section ofa Miami newspaper that was brought to FPLP's attention. If any FPLP readers have any further information on this investigation and its outcome, please let Page 7 fPLPknow. [Source: Miami Herald, 4/9/98] NEW PROPERTYLISTI DEFUaTIONSBECOMES EFFECTIVE SMOKING GUN The following memlmllldum (DOC Infonnatiem Memonndum No. 22·79) was diseovered in the rccenttobacc:o litigation concerning FL prisoners. Sec: FPLP Volume 4. Issue 4. "SERIOUS MEDICAL CONDmON·N1COTINE ADDICTION: Prisoners who wen: in prison m"jUVCllile facilitics. who received the "free"lobacc:o that the moe pushed fm" many years and who llRl now sufl'ering tobacCo related diseases. may have Vet)' good claims·against the moe in view of evidence like Ihe following: August /7. /978 In, Volume 4, Issue 3. of FPLP, page 3, MEMORANDUM it was reported that the FDOC had proposed TO: Regiona/ Directors amendments to the list of property that FL Superintendents ofMajor Institutions Superintendents ofCommunity Facilities prisoners may possess. That new list became effective on August 3, 1998, and should now be contained in all copies of Chapter FROM: Louie L. Wainwright 33. The amendment makes significant changes to the definitions of what property is authorized and specificalIy lists a few exemptions to formerly acquired property that is no longer authorized but that may be kept until 1he specified items are no longer serviceable. The amendments are found in Rule 33-3.0025, APPENDIX ONEPROPERTY LIST. It is interesting to note that in the expanded text that was added to explain this new list is stated: "Inmates in possession of previously approved property which meets the description of property on the list shall be allowed to retain the property." This is wi1hout consideration of the designations "canteen" or "state issue." The definition text of the amendment clarifies that those definitions do not mean where property must have come from, only where it may now be obtained from. If you have formerly approved property that meets the basic description of approved property on the list the rule now states that you may keep it. It is suspected that many FDOC staff still will not be able to correctly interpret this new nile, so you should familiarize yourselfwith it so 1hat if property is taken you can effectively challehge the confiscation. The folIowing formerly obtained items are specifically approved for possession as exemptions: Clothing items of a different color than specified on the property list; Locks other than V68 series; Plastic bowls, tumblers, cups and lids; Pantyhose; and Nail clippers larger than 3-112" And, wedding rings no longer have to be just plain bands. The property case and injunction is still ongoing and the injunction is still in effect. We have no new' news on that case at this time, but wilI cover same when somethiJig new is received.• NICOTINE CESSATION INFO (Continued on page /2) F.P,L.P, VOLUME 4, ISSUE 5 RE: Discontinuance ofprolliding tobacco products to inmates Free cigarettes or other tobacco products wiJI not be QllQilable to State inmates after September 30, /978. ~lthough we havefiunished inmates wilhfree cigarettesfor manyyears, we are discontinuing this practice when the present 60.d0y supply on hand is exhausted. The Department of Corrections has been producing rolled. pockaged cigarettes for inmate consumption for oller six years. Prior to providing rolled cigarettes, the Deportment prollided, Itree of charge, smoking tobacco in pouches which the inmates utilized in rolling their own cigarettes. It was the posture of the Deportment that this free issue ofcigarettes was a part ofthe health and cOm/ort item issue that the Departmentprollided to the inmate by lIirtue of his incarcer(Jtion. During the past two years the Department has attempted to objectillely address the feasibility of continuing the prollision bffree cigarettes to incarcerated i"mates. This decision to eliminate free cigarelles is based on a thorough reassessment of the health hazards of smoking and the action of the Legislature in elimination of $500,000 from the Departmental budget used to purchase wholesale tobacco. As a result of the preponderance of ellidence currently available which indicotes cigarette smoking is hazardous to people's health. this has caused the Deportment to eliminate this practice of prollidingfree tobacco in order tofuljill its responsibilities to protect the health ofthe inmates while incarcerated. Prominent among this ellidence is' the following: [Omitted list of general Surgeon Generalfindings, etc.] The Deportment ofCorrections has also determined that with the cessation ofthe prollision offree cigarettes to inmates that anti-smoking clinics will be provided to inmptes within the facilities ofthe Deportment. Arrangements are being made with the American Cancer Society to train Department staff in presenting anti-smoking clinics and these clinics will be made allailable to all inmates inllOlved in the education programs throughout the Department and will be made available on a 1I~~wrybasiswothummate~ I request the each ofyou encourage and support inmates to discontinue this life-shortening habit of cigarette smoking and in the successful operation ofthe anti-smoking clinics. If inmates should chose to continue smoking. they halle the option of buying commercial brond cigarettes from the inmate canteen. Howeller, all inmates do need to be made aware of how smoking may shorten their lilies and the detrimental diseases they may acquire by continuing this habit. I have designated T.P. Jones, Assistant Secretary of programs, to establish and monitor the anti-smoking clinics. and I will appreciate yourfull support olthis program. In order that the entire Deportment might be aware of this decision, I would request that you disseminate this ilfformation to all Departmental staffand inmates. [Signed: L. L. Wainwright, Secretary} As those of)'Oll who wen: in during and after the above memo was issued know, there were never any "anti.srncJcing clinics" established. Free cigarettcs c:cmtinl=lto be dislributed 10 prisoners, III some facilities, into 1980. LiUle. if any. infonnatiem was ever dislributed to Ilrisoners concerning the dangers of tobacco. Many Ilrisonen. who were addicted 10 lobacc:o for the lint time upon entering the DOC where the free lobacco was allllO$l forced em prisoners, have died from lobacco-related cIiseascs m" are suffering from such now. • Page 8 NOTABLE CA.$ES by Sherri Johnson and Brian Morris -Administrative ConfinementDue Process Not Required In the first case following Sandin V, Q!.nng, 115 S.Ct. 2293 (1995) that the Eleventh Circuit federal appeals court has addressed concerning due process in connection with administrative confinement in Florida prisons the decision is not favorable and may have serious consequences for Florida prisoners. In 1993 prisoner Charles Rodgers filed a section 1983 action in the Southern District federal court of Florida, alleging that following a dispute with an FDOC corrections officer at South Florida Reception Center over a dining table the officer wrote a false DR against Rodgers and had him placed in administrative confinement. The DR was subsequently dismissed against Rodgers but he remained in administrative confinement for two more months awaiting disposition of outside criminal charges for the altercation (he evidently put his hands on the officer during the dispute). Rodgers continued to allege that he was not provided due process before or after being placed in administrative confinement in violation of his constitutional rights. Rodgers also alleged that the superintendent and FDOC secretary violated his due process rights because they did not act to release him from the confinement when given notice of same through the grievance procedure. The district court dismissed the due process claim against the correctional officer for failure to state a claim pursuant to 28 U.S.C. section 1915. The district court granted summary judgment for the superintendent and FDOC secretary after concluding that Rodgers failed to show a deprivation of a liberty interest as required by Sandin v. Conner (following Sandin "Iibeny interests" are generally limited to (I) actions that unexpectedly alter term of imprisonment. and (2) actions that impose an atypical and significant hardship in relation 10 the ordinary incidents of prison life.) Rodgers appealed to the Eleventh Circuit which affirmed the lower court's actions. Rogers had claimed on appeal that since his case facts occurred before Sandin was decided in 1995 that the law at the time of the incident conlrols. The appeal court disagreed and cited several cases holding that decisions of the Supreme Court gener- F.P.L.P. VOLUME 4, ISSUE 5 ally must be given full retroactive effect on cases still pending when the decision is rendered. Therefore the district court's application of Sandin standards to Rodger's case was appropriate according to the appeal court. This case is significant in that it effectively overturns prior established case law that had controlled in Florida requiring that full due process protections be provided before and after administrative confinement is imposed. Parker v. Cook. 642 F.2d 865 (5th Cir. 1981), and Adams v. Wainwright. 512 F.Supp. 948 (N.D. Fla. 1981). However. the results of ~ is not surprising following Sandin v. Conner. What this means is that following Sandin administrative confinement in Florida prisons can generally be imposed without any due process protections (e.g. hearing. opportunity to be heard. periodic review of status) unless there exists a law or rule creating a "libeny interest" in remaining free of administrative confinement mll1 due process protections before and after imposition mll1 that the prisoner's length of time in prison is affected by the confinement and/or that the confinement is an "atypical and significant hardship" in relation to what confinement a prisoner can ordinarily expect while in prison. Following this decision in Rodger's case it is expected that the FDOC will dismantle existing rule mandated requirements that prisoners be allowed to speak with someone and give a statement on his behalf before administrative confinement. and possibly repeal existing rules requiring periodic review of administrative confinement status. This would mean that prisoners could then be placed in such confinement without any reason being given and be kept there for as long as prison officials wish without any review of the status until they decide to review it. See: Rodgers v. Singletary. 142 F.3d 1252 (11th Cir. 1998). Importance of Exhausting Federal Claims in State Court A recent case out of the Eleventh Circuit Court of Appeals illustrates the importance of raising and fully exhausting federal issues at the state court level before attempting to proceed to the federal courts with a petition for habeas corpus on a criminal conviction. On February 18, 1998. the 11th Circuit issued a ruling that is useful for clarifying to Florida prisoners correct procedural remedies in pur- . suing postconviction relief from a state criminal conviction. Harold Snowden, a Florida state prisoner. was convicted in 1986 ofseveral counts ofchild abuse during ajury trial. Snowden filed a direct appeal of his conviction to the Third District Court of Appeals, which affirmed the conviction. See: Snowden v, State. 537 So.2d 1383 (Fla. 3rd DCA 1989)" The Fla. S. Ct. denied discretionary review. See: Snowden V, State. 547 So.2d 1210 (Fla. 1989). Snowden then correctly filed a motion for postconviction relief per Rule 3.850. F.R.Crim,P.• which was denied by the trial court without an evidentiary hearing. Snowden appealed that denial and the DCA affirmed the denial. ~ Snowden v. State, 589 So.2d 911 (Fla. 3rd DCA 1991). Snowden. proceeding correctly, next filed a petition for federal habeas corpus relief in the federal district court pursuant to Section 2254. In June of 1994 a magistrate judge issued a report and recommendation that relief should be denied and the district court judge adopted that recommendation and denied lhe habeas corpus petition. Snowden then, again correctly, and in the correct order, filed an appeal from the denial of his federal habeas corpus petition to the II th Circuit Court of Appeals. That court has now reversed the district court's denial of the habeas . corpus while issuing an opinion that may be very useful to other nm s prisoners challenging a criminal conviction. It is important to note the order in which Snowden prosecuted his claims, He followed an orderly progression; first taking a direct appeal (if the conviction was obtained by plea negotiations. then you would probably not have a right to a direct appeal and would skip that step). Upon denial of that he proceeded to a Rule 3.850 postconvlction motion back in the trial court. When that was denied he appealed it and lost He then, having exhausted all available state court remedies, in the correct order and raising every issue the first time around, proceed.;d to the federal district court. When that court denied him relief he appealed to the 11th Circuit, which has now granted him relief, finding that several of his issues demonstrated a violation ofdue process. The II th Circuit also, in a clear and understandable manner, pointed out the importailce of raising and exhausting any ~ claims that" you might have at every step in the state courts. The Court noted.thai, "In general. a federal court may not grant habeas corpus relief to a state prisoner who has not exhausted his available Page 9 state temedies. (citing 28 U.S.C. Sec. 2254(bXI)(A»." The Court. relying on. established U.S. S. Ct. case law, also found that, "Exhaustion of state remedies requires that the state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon the correct alleged violations of it's prisoners' federal rights (cites omined).''' And. "Thus. to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues." Failure to raise all possible federal constitutional issues at every step in the state court will bar those claims from being raised in the federal court. Some of Snowden's claims had not been properly raised in the state court and were thus barred, some of his claims that had been exhausted lacked merit according to the II th Circuit. But several of his claims had been fully exhausted in the state court, presented as federal constitutional violations at every stage, and thus were considered and found to be due process violations by the II th Circuit affording Snowden his long sought relief. See: Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). Prisoners Frank Bass, Leonard Bean. Enrique Diu. and .BiII Van Poyck challenged prison officials' action in using a contraband rule to confiscate legal materials that had been given from one prisoner to another in order to assist each. other in court cases. The U.S. District Court for the Middle District of Florida. 'Jacksonville. granted a summary judgement in favor of FDOC prison officials finding that the plaintiff prisoners had not presented evidence that they, personally. had suffered a denial of access to the courts pursuant to Lewis v. Casey. 116 S.Ct. 2174 (1996). The plaintiffs appealed to the II th Circuit Court of Appeals, and that court affirmed the lower court's summary judgement with a rather extensive opinion. The prisoners, who are on 24 hour lockdown at Florida State Prison (FSP), filed a two-count 42 U.S.C. 5. 1983 action alleging that Rule 33-3.006(1)(b) is unconstitutional where prison officials at that institution used that rule to allegedly confiscate and destroy plaintiffs legal documents which other prisoners possessed, and other prisoners' legal documents which plaintiffs possessed. Pursuant to that rule, legal documents found in the possession of another inmate at FSP are "contraband" if they are transferred from one prisoner to another without authorization. The rule being challenged in this action provides that "[alny item or article not originally contraband shall be deemed contra· band if it is passed from one inmate to another without authorization." The district court had found that the rule "wasValid under the four-prong test of Turner v. Safley. 482 U.S. 78 (1987), and specifically that the plaintiffs had failed to show that prison officials hindered their efforts to present a legal claim where the plaintiff failed to present any evidence that such an injury had been sustained by them personally. The plaintiffs attempted to argue on appeal that the lower court' should have 'applied the test established in Johnson v. Averv, 393 U.S. 483 (1969). The appeal court considered both Johnson v. Avery and Bounds v. Smith, 430 U.S. 817 (1977). The plaintiffs had argued that this was not a Bounds case, but the appeal court disagreed. Citing from Lewis v. Casey, the appeal court noted that Bounds and Johnson "focued on the same entitlement of access to the courts." and found that neither of those cases created a free-standing constitutional right independent of the right of access to the courts, and those case did not create separate, independent, standards to be applied in assessing access to court cases. Thereforc, the plaintiffs' case must be examined under the standards as established in Lewis v. Casey. The appeal court noted that under Lewis, prisoners' claims of denial of access must fit within the narrow limits of being related to an underlying habeas corpus petition, a challenge to a criminal conviction, or a civil rights action concerning conditions of confinement. Lewis established that those are the only areas of litigation that prison officials have a constitutional dut)' to accommodate prisoners with in accessing the courts. The appeal court noted that if the plaintiffs' claims in this case involved claims of denial of access concerning those enumerated reasons. that the plaintiffhad provided no evidence that they have had one or more such actions denied or dismissed because of prison officials alleged actions under the stated rule. The appeal court emphasized several times that after Lewis prisoners can only bring denial of access claims if the action (or inaction) of prison officials actually resulted in an underlying case concerning a habeas petition, challenge to a criminal conviction, or civil action on conditions of confinement. F.P.L.P. VOLUME 4, ISSUE 5 ~ [Follow-up: On March 26,1998. Harold Grant Snowden, an excop. was set free on a $50,000 bond by the Southern District Court of Florida. pending a retrial. His original conviction was overturned based on the above decision by the II th Circuit. Source: The Orlando Sentinel, 3/27/98, A-I-sj] Using Rule 33-3.006(l)(b) to Confiscate Legal Material in Other Prisoners' Possession Not Unconstitutional o being dismissed or denied. The appeal court also pointed out several times that Lewis requires "personal injury," prisoners can not claim that they were denied access to the courts because they were prevented from assisting other prisoners. citing AdamS v. James, 784 F.2d 1077 (\ Ith Cir. 1986) ("prisoner has no standing to litigate another prisoner's claim of denial of access to the courts."). The appeal court implied that this is what the instant plaintiffs were doing, absent any evidence that they personally had one of those type legal actions denied or dismissed because prison officials had confiscated legal materials in another prisoner's possession. In closing, the appeal court again addressed whether an "independent" right exists for prisoners to give or receive legal assistance to each other. The court found that no such right exists, citing Johnson v. Rodriguez. 110 F.3d 299, 31 I n.15 (5th Cir), cert. denied 118 S.Ct. 559 (1997). The appeal court·noted that it joined several other circuit courts of appeals in this position (cites omitted here). ~ om. Bean. Diaz. and Van Poyck v. Singletarv, _ F.3d _ _' II FLW Fed. CI487 (6/19/98). PLRA's "Three-Strikes" Provision Upheld by 11th Circuit In an extensive opinion, the federal 11th Circuit Court ofAppeals has upheld as constitutional the "three-strikes" in forma pauperis (IFP) provision of- 28 U.S.C.A. Sec. 1915(g), section 804(d)7fthe Prison Litigation Reform Act of 1995 (PLRA). On May 9, 1997, FL prisoner Vincent Rivera filed a 42 U.S.C. Sec. 1983 complaint in the federal district court for. Northern Florida. Rivera alleged that a prison doctor had disregarded his medical needs and sexually fondled him during an examination. Rivera sought monetary damages, correction of his record, and restoration of gaintime that was taken through disciplinary action (it is obvious that Rivera had absolutely no clue as to the proper remedy. even if his claims were true). Pertinently. Rivera sought to proceed in fum!J ~, and after the case was transferred to the Middle District Court within which Rivera was incarcerated, the district court dismissed Rivera's case because he had filed three previous lawsuits that had resulted in dismissals because they had been frivolous. malicious or failed to state a clai~ upon which relief could be granted. The district court determined that 28 U.S.C. Sec 191 5(g) rendered Rivera ineligible to proceed IFP in the instant action as the three prior dismissals all counted as "strikes" under the PLRA and Rivera 'had not shown he was in imminent danger of Page 10 physical injury." The district court found that Rivera could only proceed if he prepaid the entire filing fee-up front. Rivera, not knowing when to leave well enough alone, filed an appeal and sought to proceed on appeal IFP. The district court found that the appeal was not in good faith and ordered Rivera to prepay the appeal filing fee before he could proceed. However, the clerk of the court obtained Rivera's written consent to pay a partial payment and place a hold on his account to, satisfy the rest of the appellate filing fee (exactly what Rivera had been seeking to do). Rivera failed to realize something was up when the clerk appeared" to be going around the court so his appeal could be heard. The court had denied IFP status and the clerk, unofficially, granted same. The 11 th Circuit took this made-to-order opportunity to address PLRA issues of first impression for that court. Rivera raised constitutional challenges to Sec. 1915(g) on four grounds: (1) First Amendment access tb courts; (separation of powers; (3) Fifth Amendment due process; and (4) Fourteenth Amendment equal protection. Alternatively, Rivera alleged that the district court erred by using cases dismissed before the PLRA became effective in a retroactive manner to count towards the "three strikes" against him, and that two of the "three strike" cases could not be counted as dismissals due to being frivolous, malicious or failing to state a claim. Almost routinely, the 11th Circuit disposed of Rivera's First Amendment challenge noting that proceeding IFP in a civil case that does not involve "fundamental rights" is a privilege rather than a right. The court also found that Sec. 1915(g) does not violate separation of powers, based on, the same cases that Rivera sought to argue did show such violation. Rivera's claims of denial of due process under the Fifth Amendment the court equated to a restatement of his First Amendment denial of access to the court claim, as Rivera alleged due process -was denied in a application of res judicata. The court held that Sec. 1915(g) does not violate the Fifth Amendment. The court noted that a district court in the 8th Circuit had found that Sec. 1915(g) was unconstitutional in violation of equal protection rights of prisoners, but that had been overturned on appeal to the 8th Circuit appeals court. The court went further to agree with the 5th and 6th Circuits that Sec. 1915(g) does not violate the Fourteenth Amendment right to equal protection, as F.P.L.P. VOLUME 4, ISSUE 5 There Is No Constitutional Right of an Accused to Proceed Both Pro Se And With Counsel Although indigent criminal defendants are entitled to the appointment of counsel and, under certain circumstances, have a constitutional right to waive their right to representation by counsel, "there is no constitutional right of an accused to representation both by counsel and by himself." Whitfield v. Web rlge Address: bttp:Jlmemben.lol.com/fplp/fplpJatall E-mail Address:fplp@aol.com Telephone: (4a7) ~ Page 11 (Continued/rom page 8) FPLP has received some requests for case information concerning the nicotine cessation article that ran last issue. Thomas Waugh's case, which forced the FDOC to provide him with Zyban and nicotine patches to stop smo~ing, was styled: Waugh V. Harry K. Singletary. et al.. Case No. 95-605-Civ-J20A, and was filed in the federal District Court, Middle District, Jacksonville Division. The State of Florida's case against the major tobacco companies, in which' the tobacco companies filed a counterclaim alleging that the FDOC, a state agency, had also manufactured and distributed cigarettes for decades to "risoners, and in which a significant amount of discovery materials concerning that claim was filed, was styled: State. et a!. v. American Tobacco Company. et al.. Case No. 95-1466AH (Civil), and was filed in state court, Fifteenth Judicial Circuit Court, In and For Palm Beach County, Florida. FPLP has most of the key documents that were tiled or used in litigating the above two cases. If enough interest is received we will consider making copies of those materials available for order. Let us know. Tom Waugh was provided Zyban and nicotine patches following his settlement, and has now been smoke·free for several weeks. He informs FPLP that the Zyban was more beneficial in helping him to stop smoking than the nicotine patches, but recommends them both as necessary cessation aides to those heavily addicted to nicotine as he was. All Florida prisons are suppose to have adopted a written Institutional Operating Procedure (I.O.P.) outlining the steps that prisoners can take to participate in nicotine cessation programs"'" and possibly receive nicotine patches. If interested check your law library for the I.O.P. or contact your doctor or classification officer for more info. 1 1998 LEGISLATIVE mGHLIGHTS The 1998 FL legislative session produced few changes to state law that will affect prisoners, unlike the past few years. The following notes selected highlights from this most recent session: Criminal Procedure, D~ath Sentence, Method of Execution: Session Law 98-3, C.S.H.B.3033, created Sec. 922.105, F.S., and amended Secs. 775.082 and 790.161, F.S., to provide that electrocution is the official method of execution of deathsentenced prisoners and that lethal injection will only be utilized if electrocution is ever F.P.L.P. VOLUME 4, ISSUE 5 held to be unconstitutional by the FL or U.S. Supreme Courts. Became effective 3/26/98. Sexual Predators, Civil Commitment: Session Law 98-64, C.S.H.B. 3327, created several new statutes entitled the "Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators' Treatment and Care Act." This Act establishes state laws that allows for the involuntary civil commitment of offenders designated as sexual predators. The Act will affect presently incarcerated and future sexually violent predator offenders as defined under the Act. This bill was modeled after a law that was'adopted in Kansas and that was upheld as constitutional by the U.S. Supreme Court last year. Kansas v. Hendricks. 117 S.Ct. 2072 (1997). Essentially, the Act provides for continued incarceration of those offenders designated as sexually violent predators through civil commitment after their prison sentence has ended andlor civil commitment incarceration for those not sentenced to prison but who fall' within the parameters of the Act. Effective January I, 1999. Sexual Offenders: Session Law 98-81 C.S.S.B. 1992, provides changes to itumer~ ous statutes concerning identification,'notification, registration, DNA typing, and other related requirements of sexual offenders in FL. Effective dates: 6/1/98 and 10/1/98. Became law 5/21/98. FDOClParole Commission Rule Adopt Authority: Session Law 98·200 Sees. 227-28, C.S.S.B. 1440, provides minor in appearance, but significant, changes to Sees. 944.09(1) and 947.07, F.S. The amendments add language to these two statutes, that authorized the FDOC and Parole Commission to adopt rules, to provide that such adoptiolls shall be pursuant to Secs. 120.54 and 120.536(1), F.S., of the Administrative Procedures Act. To bring Sec. 944.09, F.S., into compliance with Sec. 120.536(1) (1996), the FDOC's "general" rulemaking authority at Sec. 944.09(1)(r) was totally repealed. The FDOC may no longer adopt .rules unless there is a specific statute authorizing such adoption. Became effective 5/24/98; ** FDOC Salaries: The 1998-99 Appropriations Act provides, beginning September 30, 1998, an increase in the base rate of pay for FDOC career service employees, correctional officers and correctional probation officers as follows: (I) Employees with salaries of $20,000 or less shall receive an annualized increase of $1,200; those with salaries from $20,001 to $36,000 shall receive an annualized increase oUI,OOO. (2) Employees earning $36,001 or more shall receive an annualized increase of 2.78 percent; professional health care employees of the department will receive a 3 percent increase in pay. On January I, 1999, an across-the-board special pay additive ofSI,900 will be available to increase the base salary ofcorrecllOna'l officers in Regions I and IJ. Officers in Region m, IV, and V will also receive the $1,900 special pay additive to increase base salary, but this will replace the current $1,900 they receive as Competitive Area Differentials. Becomes effective October I, 1998. ·*The Florida Department of Corrections (FDOC) sought to obtain legislative support tbls past session to furtber limit, or totally eliminate, prisoners' ability to participate In Rule Promulgation or Adoption procedures pursuant to sec. 120.81(3), F.s.. Fortunately, the FDOC could not find a legislator to Introduce sucb a proposalthis year. Tbe only vestige of FDOC rulemaldng participation still remaining to prisoners Is tbe rlgbt to submit eommentslevidence to proposed rulemak· Ing ,notices of the department (per 120.54(3)(c) and 120.81(3)(b», and file petitions for rule adoption, amendment, or repeal (per 120.54(7) and 120.81(3)(a». Prisoners still bave tbe right to appeal an FDOC decision to deny 11 petition flied pursuant to 120.54(7) directly to the DCA pursuant to 120.81(3)(a), 120.68, F,S., and Rule 9.110, F.R.App.P. Recentiy, the First DCA confused this ability to appeal under 120.68 by l.uulng a vague opinion In Tunglite v. FDOC, _ So.2d _ , 23 FLW D13S2(F1a. 1st DCA 611198). Prisoners may only appeal under 120.68 when tbey have filed a 120.54(7) petition to .the FDOC and It has been denied. Tbis Is a very narrow remedy and tbe procedures must be fully understood and complied witb. The courls are not allowing any procedural leeway in FDOC rule cballenges. Altbougb a complaint for dedaratory Judgment under Chap. 86, F,S., still remains viable for rule cballenges, but still administrative remedies must have been exbausted or II 120.54(7), F.S., petition must bave been flied and denied to crelite a controversy ripe for declaratory Judgment. See: Endress Vt FDOC. 612 So.2d 64S (Fla. 1st DCA 1993).1 FPAN Meeting Update by Traci Rose There was a FPAN meeting on Sunday, June 28 in Orlando. Several members from different groups attended: PEN, FLIP, along with Glen Boucher from Florida Institute of Legal Services (FILS) Teresa Bums from FPLP and myself, and the Co-Founder of TIP (The illumination Project). Even though there wasn't a large turnout for the meeting, we made great progress. Those of us that were there left with more knowledge and a better understanding of what we actually can do to help our forgotten (Continued on page 14) Page 12 Dear FPLP As usual, I waited until the last minute 10 renew my subscription. So, I decided to plan ahead. Enclosed is my donation for two years. I would encolltl18C all subscribers 10 renew for two years. It will allow FPLP 10 move forward, farther and sooner. And 10 my fellow convicts- Get up off them lunches. Don't be cheap! You can do without those nabs for a week. And by the way, are you c:heapo's the SllI1\e whiners that keep crying about what the DOC is Illking away from us? When are you going 10 get offyour bun and start pushing the paper, Remember-Research, Educate, and put into Action! TWJ CCI DeiuFPLP Just want 10 renew my subscription early. Have been down since 89, and the FPLP is the best publication I've come across. I have in the past gouen several inmates 10 apply for FPLP. So please keep up the great job your doing and helping us inmates. I thank you. G.R. WCI FPLP, Enclosed you will fmd nineteen 5.32 Stamps lIS payment 10 renew my subscription for your newsleuer. IfI'd had more stamps I'd sure have sent them 10 you. For I personally really enjoy this newsletter and all the information your staff provides me with: People like you and your staff are the ray ofsunshine for me at least Having spent more then 30 years in the prison systems of this country I'm all to well aware of the reality of 'Those that have no-one 10 represent or fight for them' will surely get lost in these systems. That your organization spends time, energy, funds in our behalf is fantastic. Without people like you out there in the liee world speaking up for those of us inside these barbed wire reservations, well with out a doubt, we inside would be back in the old chain gang daily routine. Which wouldn't be bad ifthere WIIS a chance ofCll1Tling release from these lost in space sentences. Yet personally I'm sure that sooner or later the tax payers will get tired of paying for a system that can never work, the way that it currently is being run. Statistics concerning recidivism should show that this system does not..can not..will not work. No matter how many millions...billions of tax payers dollars they spend on it year after year. Those of us old enough 10 remember the old system (chain gang) remember the hard work, long hours, and if you wanted 10 be aloud mouth the pain and bruises that went with thaL But, my issue is that back then you could ClI1Tla parole. SlatS I'm sure will verilY that under that syslC(1l the recidivism rate was right around 25-27%. After all the changing was done what did the recidivism rate go up too around 70+ %. I might bejust an old convict, but even I can see that teday's systems are mega failures. A very sad joke. at the taxpayers expense. But do the politicillRS ever let the taxpayer know the true facts and realities? Hell no they wouldn't get eleeted if they did. Yet with more organizations like yours out there, maybe just maybe the public could becOme informed of the truth and reality. For myself I'm not crying. I did what I did,l got what I got, so be it But for the young dudes that I sec coming into this system I feel sad. They have no chance at all, this system isn't designed to gip: them a chance or any help even if they want it To me thill's the biggest shame of all. All of those that vale for these politicillRS that promote or believe in ttIis ~ should be made 10 lOur a place like this. So they can see first hand the lives that are being wasted because oftheir vote. The public gets all bent out ofshape when someone that just got out of a prison system re-aets in a violent negative way, but why should they? The public allowed these systems to become what they are. wItere only the strong canlwill survive. The ones thIIl rc-act with violence once they get out, weill can't say this with sureness, yet I'll bet that they were thcones that were sUbjeeted to the violence in these systems. Its sad to think, let alone say...that they learned it in here...Well I've run my mouth all 10 long. Just want 10 say Keep Up The Good Workll! I for one really do appreciate all that your doing...A1I the time you spend doing it. BAC UCI Greetings, I have just read my fU'St copy ofyour newslcuer, received from an inmate in Everglades C I. You are doing a wonderful job for inmates and their 10vcdones.1 too have had a problem with visiting privileges at ECI. I recently ml1de a trip from Maryland 10 Florida to visit my son, who is an inmate at ECI. He had an ok by his classification officer and WllS told my name was on the visiting list. When Illrriver at ECI, the gUllfd told me my name was not on the visiting list, and he did show me the list, which did not have my name on it I was not allowed in to visit. I had visited before in January 1998 and my name was on the list then, Needless to say I was hysterical to have come all that way and not sec my son. The next time I heard from my son, he said he was IOld there was a mistake and that my name was on the computer, but not on the list at the gate. The same day a family of four coming from Ecuador was also turned away because of the same reason. What can a person do? Margaret, Maryland To whom it may concern, In reading the May volume 4 issue 3 of FPLP. I noticed that there isn't enough information that benefit the incarcerated women in Florida's instilutions. On the subject of restoring Pasona\ Property, nail-clippers, tumblers, and wcightlifting gloves are acceptable for Men. As an African-American woman hair-e:are products, hair accessories, cosmetics are very limited, if not non-cxistent. Support bfllS and pant-girdles are needed but, no longer able to receive these and other items that once were permiUed thl'Ollgh personal property are still needed. JCI has it's own unofficial Sovereignty Commission due to Nepotism. Inmates here are repeatedly subjected 10 victimization within the instilution. In this instilution there are many family members employed, from Asst. Superintendent, Ueutenants, and other subordinates: Sisters, brothers, mother .son, daughter, cousins and in-laws, mostly all working for security. They are supposed 10 work different shifts but they do not. This is a direct violation of FL.S\. 20.31 S After an accumulation of instances of misconduct the problem of Nepotism still goes unnoticed. It is aIrnost impossible for inmates 10 exercise their rights through-the grievance process and not be subjected to impartial, improper conduet by other &Jar relative SlaIT members here at JCI. We are now expected to purchase tampons, raincoats, toothpaste_ and stamps on the canteen. Where does that leave the indigent person who cannot use their brand of sanitary napkins or tampons, due 10 sensitivity or allergic reactions? Where does it leave indigent inmates withHIV?Aids, Asthmatics, and other respiratory illnesses? As far as Jel is concerned oppression, victimization,·and a total disregard that persons incarcerated are here for lIS punishment not to be punished. Will the inOiction continue will someone take a stand? For even though the training of Correctional Officers consist if "dehumanizing" the inmates. We the incarcerated are still human. GG JCI [Alliellers received cannot be printed because o/space restrictions. Unsigned lellers IVIII not be printed or lellers that obViously are not Intended/or publication. Please Indicate in lIT letters I u do not want /I rinkel. otherwise FPLP reserves the ri ht to rim olliellers received and to edit lellers or len th. F.P.L.P. VOLUME 4, ISSUE 5 Page 13 family members in the FDOC. interesting. but disheartening. film was aboul prison eduwion in New York. Also, members" from PEN reported lhat they still need over 20,000 pelilions signed in order 10 get the issue regarding abolishing the plIfOle Board on the ballol Anyone that WIllIts to volunteer please cOnlllCt Twyla from PEN. She really needs the help. M sfIo",,'Tl In addition, there was an update, and enlighten· ing discussion, about the rally FPAN coordi· nated in Tallahassee during the legislalive ses· sion Ihis past April. As most of you know, se\'enr,1 members of FPAN were 11.1 thai rally. Family members wen: u1king 10 their represen· wives, and to othas. about the obstacles a family mUSI go lbrough when they have a loved OtIC inearccnted in the FDOC. Basically, concerned family members were con\'eying a message 10 the legislature that families of prisoners are not going 10 be quiel aboUI how they arc being uwcd. FPAN will again be coordinating this event in 1999. Listen families. these l'IIllies are ulremefy important. Thll II /he place. This is where all our decisions are made for us. We must be present and bc hcartl cI'ery year. FPLP will keep everyone updated about the 1999 nlly, bUI we also desperately need family memo bers to participate. If there was just one family member fmm half of the inmates in the FDOC anending these rallies. ....·e'd have O\'er ]0,000 people up al the Capitol. N_ thai'S powerful, Plc:asc get in\·olved. The oulcome of lbe legisl:uh'e upd31c was lblt selected members of FPAN will be targding appropriale committees about imponant issues we, as a group, would like to see changed. For instanec, Ihe main focus right now is presenting. to the appropriate commiltee(s), the idea that every family member has the tight to visit a loved one incan:erated in the Slllte of Florida Members were encoul'llged to .....rite their repre· sentath'es regarding this and olher issues they have concerns about. We also had a guest speaker, the Public De· fender from lbe 9· Judicial Cireuit in Orlando. The Honorable Joseph W. DuRocher. MI. DuRocher p\'e lbe group an ovCl'View of the role the Public Defender's office has in the system. This gentleman is very eating. and is Cltlremcly active in his commitment 10 speak Ollt for inmate'S rights. In addition, Mr. DuRocher announced the great news thai Sister Helen Prejean, aulbor of ~Dead man Walking." was nominated this )'w for the Nobel Pcace Prize. Towards the end of the meeting, Susan Cary from the Public Defender's office in West Palm Beach showed up and gave the group an update on lbe proposed rule that will se\'erely, if it F.P.L.P. VOLUME 4, ISSUE 5 passes, restrict items allo ....·ed to be sent 10 inmates through the U.S. mail Ms. Cary reponed th:1I this rule is being challenged, and that there i.s a hearing scheduled fOI Tuesday. July 14 in Tallahassee.. Having a loved one in Ihe FDOC has been extremely difficult, as I'm sure it is fOI OO)'one in the same situation. Feelings of despair, powerlessness, hopelessness, and isolation used to O\'ercome my entire life. I used to live with the feeling thm no one understood what it WM like to experience something so terrible and heanbreaJdng. I'm not sure when it happencd or how it happened. bUI I found a little bit of hope. Hope that things could be different if I would juS! belie...e. Hope thal sitUlltions could change if I would only do the footwork. As. member of this group, I lind thaI logether we can make a difference in the Ih'es of our loved ones in the FOOC's care. My motivation for getting in\'olved SWted .... hen I wanted to do something about the issues I was facing due 10 my lianct being inCllJ'CCtUted. That slill remains my main motivation; however, sev· erol other clements have become importllllt these: past few yellrS. I realized my liane~ and I weren't the only people suffering. There lll'C many others that nre faced with lIle same problems. My added motivation is simple. It's compassion for another human being. combined wllh se"ere sadness about ""hal is going on behilld the cemenl walls in our prisons in Florida. Befon: I was exposed to lbe DOC. I nC"er d.rc:amed a legal entity could be so blatsntly dishonCSl and cruel. I JUSI don'II\a\'c it within mysdf to sit b3ck and let lbis SIlIlc·run'dcpanment destroy people's lives. Please get involved and speak OUI for our forgollen loved ones.1 PROPOSED MAIL RULES UPDATE In the last issue of FPLP a summary was given ofrcccnt proposals Ihatthe FDOC has made 10 amend routine, legal and privilege mail rules. FPLP. Vol. 4. Iss. 4. -RULE REVIEW: pgs. 8 and 12. On Jul) 14th a public hC3ting wu held following a request for such hearing by sevenJ interested clli«n parties concerning the proposed mail rule amendments. FPLP staff had contacted numerous allomC)'S and individuals seeking support for objections to the proposed rules along with the staff submitting objections themse!\·es. The staff thanks all those who n::sponded to this request for support in op· posing these proposed rules that were extremely restrictive. Numerous prisoners nlso submimd wrillen objections in response: to FPLf"s CaU for Action, thank )·ou. The opposition was effecti\·e. Following lbi:: public hearing the FDOC dec;:ided thaI changes wen: needed to address the concerns and objcelions thai had bttn raised. Most imponanily. the proposed amendment to pm. hibit prisoners from receiving poSUIge StAmps. blank greeting cards, blank pllper and en· velopes in routine m:lil hIlS been deleted in a Notice of Change published August 21. 1998 The FDOC is now proposing that prisoners will still be able to rcceh'e up to the CQuivalcnt of 20 (I OL) postage stamps in rouline mail. This will positively affcct all prisoners and their families and friends in mainlaining correspondence. Those responsible in Ihe FDOC arc thanked for reconsidering this \cty imponanl issue. Less changes ""'ere: made to the proposed amendmenlS to the legal and privilege mail rules. Pertinently, the FDOC refused 10 delete Ihe proposed provision of ]]-3.00S(9)(b) Ihat would rcquin: indigent prisoners to payor be responsible for paying ALL legal mail poSlll&e costs. FPLP Slaff had not only conUlCled Ihe FooC Objecting to that proposed provision. that docs not appear to comply with cslllblish law or stale stututcs, but they had also filed objections with the Joint Administrntive Procedures Committee which oversees agency rulemaking. The JAPC has indicated that they arc ~carcfully evaluating- this proposal for a possible objection by the JAPe. If JAPC fails to act and the FDOC allows the adoption of proposed 3). HIOS(9)(b), litigation is going to be necessary. Allomeys who m:Iy be interested in representing such a ClISC arc requested to contact FPLP. Iflbe rule goes into effect placing holds on indigent prisoners' accounts for the COS! of legal mail postage. prisoners should imme· diately Clthaust their administrative remedies on this issue. See: Bounds y, Smitb. 97 S.CI. 1491, 1496 (1977), and progeny; llIId Fla. Stal. 944.09( I )(0) (1996). I HUMAN RIGHTS WATCH Human Rights Watch. the largesl international human righlS organization based in lbe United SllI.Ics. is conducting prelimin;vy re:search into the problem of prison rape: ""hen it occurs, ""hy it occurs. ho..... it occurs and how to SlOp il from occurring.. An)'one ""ho has been llltgeted for any kind of un .....anted sexual contact in prison. whelher simple harassment. touch· ing or anal pcnetmlion, please conlllcl: Prison Project. Human Rights Watth, ]SO Fifth Ave, ]4th Floor, Ne..... Yotk, NY 10118, attn: Joanne Mariner, Anomey.at.Law. The names and identifying information of all persons con· llIeting Human Rights Wmch will remain striclly confidenlial. Page 14 PRISON LEGAL NEWS "Perhaps the most detailed journal describ· ing the development of prison law is Prison Legal News." •• Marti Hiken. Director Prison Law Project of the National Lawyers Guild. THOMAS E. SMOLKA AND ASSOCIATES 909 EAST PARK AVENUE TALLAHASSEE, FLORIDA 32301·1646 TIIcaaaJ Eo Smolka. Esquire Nct Adminalln Acrida Telephone (850) m.64OO Vlrglnlll Slate Bar ID Nc.ISl84 PLN is a 24 page. monthly magazine. published since 199{). ediled by Washington state prisoners Paul Wrighl and Dan Pens. Each issue is packed with summaries and anal· lYsis ofrecent court rulings dealing with prison rights, written from a prisoner perspective. Also included in each issue are news articles dealing with prison.related struggle and ac· tivism from the U.S. and around the world. AMual subscription rates are SI 5 for prise oners. If you can't afford to send SI5 at once, send at least $7.50 and we will pro-rate your subscription at SI.25 per issue. Please send no less than S7.50 per donation. New (Unused) U.S. postage stamps may be used as payment. For non-incarcerated individuals. the subscription rate is S20tyr. Institutional subscriptions (for attorneys. libraries. govern· menl agencies. non-governmental organiza~ tions. etc.) are S50/yr. Sample copies are available for SI. Contact: Prison Legal News 2400N.W. 80th St..Ste 148 Seattle WA 981 17 Telelas (850) 2U6484 EMAIL: tesmolka@-ortdnd.a11.lld (pROVIDING CONSULTING SERVICES TO INMATES ON ADMINISTRATIVE, CLEMENCY AND PAROLE MATTERS) Dear FPLP Subscriber: As many of you know, I suffered tbrougb many years on tbe receiving end of tbe Florida Judicial System, before I was released after winning my direct appeal. See Smolka v. State, 662 So.2d 1255 (Fla 51b DCA 1995), rev. denIed, State v. Smolka, 668 So.2d 603 (Fla. 1996). Undoubtedly, many of you may be in need ofeffectlve representation on a variety of inmate related matters. In tbis regard, I would urge you to contact me, as I provide prompt assistance on a fee paid basis. Best wisbes, Tbomas E. Smolka James Fultz, Inc. offers many legal services to prisoners and their families. We are a legal aid society, and have many qualified professionals on hand to assist you. Please Write: James Fultz, Inc. BB & T Building, G130 Asheville, NC 28801 Anyone interested in getting in on a class action suit for the banning of sexually explicit material in Florida prisons, Contact: Paper Wing Company PO Box 4855 Baltimore, MD 21211 F.P.L.P. VOLUME 4. ISSUE 5 ' ADVERTISING NOTICE U 8 ~ ~ R I 8 E T o 0-II Due 10 a conmn fCll' our rcadm, I!lt FPLP SIalJ!aka mry ell"on 10 ensure I!lIl FPI.P adwnisen aR rcpIlable.1IId qul!ifled fcr lhe Kn'icea beina oll"ered. We cannot pcncnaJlY lIIOCl mry ad\'Uliser. 1lowcMr. 1IIerefclR RaI!cn' aR advised lO aJways personally eoIltae1 adwnism fCll' filt\ber infomwicn em their qualilleations IftCI cxpcrimee before makiIIa a =mcia 10 hiIc au Illcmey ClI' lIIher ptOfeaicUI seni= ptOYiclu. Readers shold4 neYer KlId ICSIlI doclllllellts. 10 ad\'Cl1ism before eonllehna dmn Illd m:eiwina ditec1ions 10 scad sueh mataia\s. For dlose wishinslO ad\'Cl1ist m"'PI.P. pleat·.....Ie fCll' rate infonnolion al lhe lilladac\dress...Ann: Ad\'Cllisins. ClI' eomaa lhe plllllisller aI: PH: 407156800100 Email: "l'l.P@aolClml Webpage: memben.acl.",",FPI.PI"7'I.P ClI' mmIben.lripClcl",",-fPLP SUBMISSION OF MATERIAL TO FPLP Because of I!lt Iarae volUllle ofmail beins Reei>-ed by mJ'. financinl ccnlidentiens. IIId I!lt iuhilil)' 10 Fowide illl!ividlW le~1 asrislallU. ruclm should IlClI scad CClpia of Ie&d cIocumUIlS of pending ClI' poIeIIIiII cues lO "1'I.P ~ tlnt hawins conllCled lhe lUll" and m:eiviltj diR<UGn$.1O IClId same. Neilhn "'PLP. ClI' iIs sWt_!1'~llliiiiy UlISCllieiled material sent. ~ .--ReadeB ory-'ClIunled 10 ccnlinllC I'!---~ _ _ '" mf~ .mcfWlinll newspaper c1ippiltss (pre- iIleIwIe rume Paper nnd dale). memonndums, pholoccpies of IinaJ decisiollJ in unpublished cues. IIId poImlial anidcs fCll' plIlllica· lien. Please send only copies ofsueh maleriaIl!lIl do DOl haw lO be RlUmed. f7'U' depend, on YOU. ilS radm and sllJlPCftm 10 keep infcmned. 10 I!lIl everyone CIA be mfonned. Thank you fCll' your coopenlion Illd panieipaJicm mhe\pillg 10 Bellhe . tIlII. Your dTons llR greilly opprecialad. Page 15 Florida Department of Corrections 260 I Blair Stone Rd Tallahassee FL 32399-2500 (850) 488-5021 Web Site: www.dc.statetl.us Ronda Cornxtlons CommiSSion 260 I Blair Stone Rd Talluh""""" 1'1. 32399-2500 (850}l13-93 0 Fax (850}l13-9 141 EMail teofComlQrnall dc_statc.llus Officc of the Governor PL 05 The Capitol Tallahassee FL 32399-000 I (850) 488-2272 Web Site WWw.cb.SlatclluYIWlstagc:ncicslfo; IblT)' .... Singlet3I')'. Sec:rd4I)' (Per.«mal Sc..-r.:uary. Suunne Po\\cll) Infomution. .,. (Info DuC\.'1Of. l\my Flack.) OIT~ponden.:e Control 488·7480 Flonda Resource Orgamzauons Chicflnspec1Dr Omcral Cltlun's As5istance Adtmn.. ._. .." 922-4637 488·7146 Commission/Government Account.sbilily The Florid:. C'unc:ellon1 Comn\! \lun " contpOlCd of to the People... •.•. 922-6907 cighl Cthtent aJ'JWlmled by the go\.'emor 10 ovemc UIC ,488-04'20 Flnrilb Dcpanrncnl pi Concctiont. "dvUc thc gco.'CflIOf Officc ofE:'(ccuti\C Clemenc)' Ind legiJl~lurc on correctiON I ISSUQ. ~nd promote public 2601 Blair Slonc Rd. .... .48R·7012 eduation ~bool Ole c:om:ctiocul I) lem in AoridJ, The: . 488-9261 CommiJaion holdJ n::pJu med.inp uound the: stiLe Bldg. C. Room 229 Inspo.1or GcncnJ. Frat Sdluknc'l:hl ......487-0558 "tndl the public nul .lIuend to prov;de Input on lS5ua Int~le Comp;ll..."'l' ._. Tanahassee FL 32399-2450 Health Sa"\'11; 922-6645 Inc! problc:mll arrectln! the COfTCCtiorul s)~cm In Florida (810}l88-2952 PrUoncn wmha "00 fricncU :an:: cncoungcd to contact (Clwlc=s Ml\lthc\.\,. MD. Aut. Sec.) Coordinator: Janct Keels the CommiAion 10 advise: than or problem MUI. The As!i¢l,.nl S«tcw)' lOr Security Inst. Management Stan Czemilll.... ... 488·8181 Comm.i.saion it lndcpc:ndcnt ofthc: FDOC mel is Inlaatcd Rorida PlUOlclProbatlOn Commluion Inmate CI1UlliQlion ...• ,_....488·9K59 In public JUlrticipOllti01l and enmmmu concerning thc o'er2601 Blair Stone Rd., Bldg C Scnterk.'cStn.a 1ure 413·9337 sight orthe FDOC, Tallahassee FL 32399·2450 Victim Auistanl:c 4k8·9166 CommlSS101'1 Mnnbcn (850) 488-1611 Populalion Mgt... . _ •... _ ,488-9166 Edpi' M Dunn. 1r , Esq ...chaIr Regional om..: Katlr r Nichol.·Vice Chair Department orLaw Enrorc:.cmenl ....(Rl0)4R2-9113 Region I. Slc'\-.:n M Flono. PrufCDOf FlU P.O 80.1489 Region II.. .(312)911·2031 IlMd F Huwr. Sbmll: Wakulla Count)" .(407)241'()840 Alma B GuJes, MD T"IJah..,see FL 32302 Regjoo III Guy R~'d1, Jr ,Fonner Parott' C"cmrmUJlllnQ' Region IV (850)488-7880 (9")202·3800 Ray SaNorn. (Jlr.A!oos..a {"ount" ComrntDtOnCf Reg.aon V.. .(813)7"4-~5SS Web Ile: www.lc:Ue.stutcO.us AaraftWaI.l.aa: ~da.T~Pro!~:EA . SUBSCRIPTION EXPIRATION?? 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VOLUME 4, ISSUE 5 Ronda lnsutuuonaJ Lcgul Scm= (Florida Prison Acuon Network) I I IQ.C NW 8th Me G"lOcsviJIe FL 326() I (352)955-2260 I'll)( (352)955-2 I 89 EMail: liIS@afn.org Web Site: www.afn,orglfilsl Families with Lo\'cd ones In Prison 710 FlllOders A\·e Dajtona Bch FL 32 I 14 (904)254-8453 EMili!: Ilip@afn.org Web Site: www.afu.orgl nip Parole Elimination Network Group 1100 John Rhodes Blvd. #189 MeJbowne FL 32934 (407)254-2045 NFIaIGA Chapter can be Enuulod at. nfsgpen@afn org FLORIDA PRISON LEGAL PERSPECTIVES P.O. BOX 660-387 CHULUOTA, FL 32766 . Page 16