P R ISO -- - t.J

VOL. 5, No. 11

ISSN 1075-7678

ews... Working- i~ E~tendDem()c,.acyto All -N0 Y-e~'1l b er 1 994

UT DOC Violates Court Access Rights

Utah state prisoners filed a class ac­tion suit against Utah Department ofCor­rections (UDC) officials claiming a fail­ure to provide them with constitutionallyadequate access to the courts. The districtcourt agreed with the prisoners and issuedan injunction ordering the UDC to sub­stantially modify its practices with re­gards to providing prisoners with accessto the courts.

The UDC contracts with local attor­neys to provide Utah state prisoners withlegal assistance. In July, 1990, UDC Di­rector Gary DeLand issued a memo stat­ing that the legal services contract wouldno longer allow attorneys to provide gen-

InsideState Assistancefor Parental Suits 2

Change in Parole Eligibility Actionable 3

RFRA Must be Argued on Merits 4

Disc. Facts Require Reversal 5

4th Or. Clarifies 8th Ammendment 6

Retaliation Suit ReqUires Trial 7

Retaliation For Grievances Illegal 8

Evidence Must Supporr Disc. Charge 9

BOP Phone Litigation Update 10

MA DOC Uses New Phone System 11

Asset Foifeiture Dysfimctional 12

Hazardous Waste in WI Prison 13

Overcrowding Leads to Pneumonia 14

Lawyers Deny Inmate Discovery 15

WA Digital Probe Suits Barred 16

Book Reviews 17

Prison News 19

erallegal assistance in civil matters. The court access cases that should be read byonly legal assistance allowed under the anyone litigating this type of claim.contract would be assistance in filing The UDC defendants claimed that ifwrits ofhabeas corpus and lawsuits chal- forced to provide legal access to prison-lenging conditions ofconfinement, either ers, budget constraints would force it toin federal or Utah state courts. The pris- cut prisoner programs. The court was notoners contend that because they do not persuaded that any excessive costs wouldhave access to a law library and are not result from ordering the UDC to provideallowed help from jailhouse lawyers, the prisoners with meaningful legal assis-minimal legal assistance provided bi- -tance. While economic factors may becontract was insufficient to allow them considered "in determining the methodmeaningful access to the courts. Specifi- used to provide meaningful access to thecally, they were denied assistance in the courts, the cost of protecting the right offollowing types of legal action: divorce access cannot be used to justify its de-actions; personal injury suits; civil rights nial." The court noted that prisoners havesuits under 42 U.S.C. § 1983 against non- no right to jobs, rehabilitation or educa-UDC employees; workers comp claims; tional programs but they do have a con-breach ofcontract claims; property forfei- stitutional right of access to the courts.ture actions; securing case law and proce- Providing such programs is a legitimatedures for pro se criminal appeals and civil penological goal but prison officials can-rights actions; petitions for certiori to the not choose to provide them at the expenseUS Supreme Court; adoptions; name of a constitutional right. The decision tochanges; tax assessments; paternity ac- fund such programs must be made by thetions; real estate disputes; probate mat- legislature, not the court.ters; out of state litigation, bankruptcies In addressing the plaintiffs' specificand more. claims the court held that the UDC must

The court notes that it is well estab- provide legal assistance in the followinglished that prisoners have a right ofmean- types of cases: in all civil rights cases iningful access to the courts. See: Bounds state or federal courts, this includesv. Smith, 430 US 817, 97 S.Ct. 1491 preparation of all papers needed to get a(1977). States have an obligation to en- prisoner into court, including IFP peti-sure that all prisoners have such access. tions and motions for appointment ofThe Supreme Court has left it an open counsel; in all habeas cases; for Utahquestion of whether law libraries or con- prisoners housed out of state in eithertract attorneys, alone or in combination, federal or other state prisons. The UDCare sufficient to provide meaningful ac- must also assist boarder prisoners fromcess to the courts for prisoners. In this other states, housed in Utah prisons, whocase the UDC defendants contended that seek to assert claims in Utah courts. Thethey were only obligated to provide assis- court gave special attention to legal assis-tance in habeas corpus and prison civil tance in the area offamilial relationships,rights litigation. The court rejected this I.e. divorces, parental rights, etc.argument. In doing so the court gives an Contract attorneys must also assistextensive discussion and analysis of prisoners in small claims and workersBounds, tenth circuit and other circuit

Prison Legal News -1- November 1994

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CourtAccess (continued)

compensation cases. No assistance inadoption proceedings was required.

The court held that prisoners are notentitled to any legal assistance beyond theinitial pleading stage. In other words,once they are in the courthouse door theyare dumped there unable to pursue a legalaction on their own unless the court de­cides to appoint counsel. The contractattorneys must assist in the filing ofamended complaints if ordered to do soby the courts. The court ruled that thecontract attorneys have no abligation togive prisoners case citations for use inpending pro se civil rights cases or crimi­nal appeals. Prisoners are not entitled toany assistance in filing writs ofcertiori tothe Supreme Court nor for name changes.Likewise, prisoners are not entitled toassistance in personal injury suits (wherethe court has discretion in appointingcounsel), breach ofcontract claims and incollections matters. The court issued aninjunction ordering the UDC to comply·with its ruling and awarded the prisonerplaintiffs attorney fees. See: Carper v.DeLand, 851 F. Supp. 1506 (D Utah1994).

UT § 1983 Statute ofLimitations Struck

Down

In 1987 the Utah state legislature en­acted section 78-12-28(3) which pro­vided a two year period in which to bringan" action for injury to the personal rightsof another as a civil rights suit under 42U.S.c. § 1983." This is the only law ofits type in the country. In the past, otherstates have passed similar statutes affect­ing § 1983 actions and they have beenstruck down. § 1983 does not provide astatute of limitations to actions broughtunder its provisions. Federal courts gen­erally rely on a state's general or personalinjury statute of limitations in determin­ing if a § 1983 action has been filed in atimely manner. Because § 1983 suits onlyapply to state government officials (andtheir agents) for violating citizens' con­stitutional rights, state legislatures haveperiodically sought to limit its reach byimposing severe time limits on its exer­cise.

November 1994

In 1988 a Utah citizen arrested butlater acquitted on charges of selling astolen firearm sued a county, sheriff andtwo deputies under § 1983 alleging falsearrest. The district court dismissed thesuit holding that it was not filed within thetwo years required by 78-12-28(3). See:Arnold v. Duchesne County, 810 F. Supp1239 (D UT. 1993).

The court of appeals for the tenth cir­cuit reversed and reinstated the suit hold­ing that the statute was illegal because theUtah legislature "has both usurped therole of federal law in characterizing theessence of such actions and has elimi­nated the assurance that neutral rules ofdecision will apply to section 1983 ac­tions in Utah." This is inconsistent withfederal law and practice.

The appeals court noted that one ofthereasons expressed in the statute's legisla­tive history was to curtail § 1983 actions,especially by Utah prisoners. The courtheld this motivation was at odds with thebroadly remedial purpose of § 1983. See:Arnold v. Duchesne County, 26 F.3d 982tlOth Cir.1994).

State Must ProvideAssistance forParental Suits

Women prisoners in Michigan fileda class action suit against the MichiganDepartment of Corrections (DOC) chal­lenging the decision to reduce funding toPrison Legal Services in order to end PLSassistance in parental rights matters. Theprisoners argued that the decrease in PLSfunding and prohibition of assistance inparental rights matters denied them theirright of access to the courts and consti­tuted contempt for previous court ordersin this long running suit. In Glover v.

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Johnson, 478 F. Supp 1075 (ED MI 1979)the court concluded that female prisonerswere denied their right of access to thecourts, among other equal protection vio­lations, and ordered extensive changes tosafeguard the prisoner's legal rights. Thecourt had previously, in 1979, ordered theDOC to fund PLS representation ofpris­oners in child custody disputes and/orneglect actions. The defendants neversought modification ofthe order and con­tinued funding PLS to provide repre­sentation in these areas. The DOC soughtto halt funding for PLS representation inparental rights cases as of February 28,1994. The court held that this was notallowed by its previous orders and foundthe DOC to be in contempt of court. Thecourt granted the prisoner's motion forinjunctive relief and ordered the DOC tocontinue fundingofPLS at previous lev­els to ensure prisoners are represented inparental matters. As a constitutional mat­ter the court held: "In the area ofparentalrights, legal assistance is required be­cause the provision of an adequate lawlibrary and some paralegal assistance,alone, is insufficient to provide meaning­ful access to the courts. I conclude that themaintenance of parenthood is a funda­mental right which is entitled to protec­tion under the constitution. Incarceratedmothers have a right to, and the Depart­ment is obligated to provide, legal assis­tance in parental rights matters affectingtheir children so as to be able to be repre­sented in court."

In Knop v. Johnson, 977 F.2d 996 (6thCir. 1992) the appeals court upheld twodistrict court rulings that had concludedMichigan state prisoners were deniedtheir right ofaccess to the courts by DOCpolicies. In this ease the DOC eontendedthat under Knop they were only requiredto assist prisoners in post conviction mat­ters and in suing over conditions of con-

Prison Legal News

Change in ParoleEligibility Actionable

Under § 1983

abortion they must assist them in activelyand effectively asserting their parentalrights. Prisoners cannot effectively assertthese rights due to their poverty and in­carceration, thus it is necessary for theDOC to continue funding the PLS to pro­vide these services. This is an importantcase that should be read by anyone con­templating litigation in this area of law.Due to the specific facts of the case it islikely to only apply to female prisoners.See: Glover v. Johnson, 850 F. Supp 592

.. {ED .MJH94).

finement. The court concluded that Knopwas not applicable to this case becausethe legal needs of female prisoners differfrom those ofmale prisoners. While sucha limit is constitutional for male prisoners"There is no basis to conclude that thissame limitation would be placed on fe­male prisoners, particularly, when theyare faced with the loss of a fundamentalright, the right to the custody of theirchildren."

Previous appeals court rulings in thiscase have underscored the fact that whatconstitutes meaningful court access formale prisoners may not be sufficient toprovide meaningful access for womenprisoners who" lack their male counter­parts' history of self-help in the law."See: Glover v. Johnson, 855 F.2d 277 (6thCir. 1988). The district court concludedthat simply because an adequate law li-brary and legal assistance may not be Trequired for male prisoners does not mean homas Lewis is a Tennessee statethe same limitation applies to female pris- prisoner convicted in 1984 and sentencedoners faced with similar court access to 30 years in prison. At the time of hisproblems. conviction prisoners became eligible for

In analyzing the constitutional re- parole consideration after serving thirtyquirement that prisoner's access to the percent of their sentence. In 1989 thecourts be "meaningful" the court dis- Tennessee DOC enacted Administrativecusses the structure of Michigan state Policy and Procedure 502.02 which al-courts pertaining to mother's exercise of lowed a prisoner's parole eligibility datetheir parental and custodial rights. The to be extended if the prisoner were foundcourt concluded that because of the court guilty of assault by a prison disciplinarystructures involved "there can be no board. In 1990 Lewis was found guilty ofmeaningful access without the assistance assault by a disciplinary board and hisof an attorney who is able to interface parole eligibility date was extended by anwith the court and its ageney. PLS, additional thirty percent.through its legal assistance to the inmate Lewis filed suit under 42 U.S.C. §mothers, provides the vital method by 1983 claiming that policy 502.02 violatedwhich a pro bono or court appointed law- the Ex Post Facto provisions of the USyer can represent the inmate mothers in constitution by increasing the punish-court." The court held that in this case ment of a crime after it occurred. The" meaningful access can only be achieved district court dismissed the suit and heldwith legal assistance." that the claim had to be brought under the

The court gave an extensive analysis habeas corpus statutes. Lewis duly filedof the legal right to exercise parental his claim as a writ of habeas corpus andrights and responsibilities, with the ac- the court dismissed it for having failed tocompanying interest by the state and par- exhaust state remedies. Lewis filed a mo-ents that decisions made regarding tion asking the court to reconsider itschildrens well being be informed and im- ruling and the court did.prove the childrens quality of life. The The court relied on Roller v.state's interest diverges from the parents .... Cavanaugh;984 F.2d 120 (4tlicir. 1993)in that they want the decisions made as and Akins v. Snow, 922 F.2d 1558 (11 thcheaply as possible, appointing counsel Cir. 1991) to hold that where prisonersand allowing imprisoned parents to exer- challenge the parole eligibility process,cise their rights is likely to increase the and do not claim they are entitled to pa-cost. The court held that because a funda- role, the claim can be brought under sec-mental right is at stake the DOC has to tion 1983. This is an important distinctionprovide the means for the parents to exer- because § 1983 has no requirement thatcise that right. Just as prisons orjails must state remedies be exhausted and allowsassist women in asserting their right to an for a court to enter injunctive and decla­

ratory relief.

The court granted the motion for re­consideration and ordered that the § 1983claim be reopened and consolidated withthe habeas petition. The court did notreach the actual merits of the case, Le.whether the policy actually violates theEx Post Facto clause. See Lewis v.Driskell, 850 F. Supp 678 (MD TN 1994).

Sexual Assault byPolice States Claim

Susan Huffman was arrested by Pa­cific Grove Police and taken to the policestation to be held pending a recognizancehearing. During the booking procedure apoliceman molested and sexually as­saulted her as two other policemen ig­nored her cries for help, looked on andlaughed at her. She remained in jail forthree days and during this period jail of­ficials refused to allow her to shower,make phone calls or have reading mate­rial. While injail she was hog-tied in hercell and taken to court where she re­mained hog tied on the floor of a holdingcell for four hours. The restraints causedher significant injury. On another occa­sion, while returning to jail her bare feetwere stomped on by police after she toldthem she was going to file suit in federalcourt concerning her treatment. Huffmandid file suit claiming that the above treat­ment violated her constitutional rights.The district court granted her In FormaPauperis status to proceed and gave abrief legal analysis of the claims.

While pretrial detainees are not sub­ject to the protection ofthe eighth amend­ment's ban on cruel and unusual punish­ment they are protected by the 14thamendment's due process clause whichforbids punishment without due processof law. The fourteenth amendment pro­vides greater protection to unconvicteddetainees.

The court notes that prisoners and de­tainees retain a right to bodily privacy.This includes the right to shield one'snaked body from strangers, especiallythose of the opposite sex. Under thisstandard Huffman stated a claim againstthe policemen who allegedly sexually as­saulted her. The assault would violate herfourth amendment right to privacy. Thepolicemen who stood by and watched theassault would also be liable for failing toprotect her from harm.

Prison Legal News -3- November 1994

SexualAssault (cant)

While being deprived of a shower forthree days would not ordinarily state aclaim, in this case it did because it wasunder the circumstances of Huffman be­ing sexually assaulted. Moreover, otherprisoners were allowed to shower duringthis same time period. The court dis­missed the claims conceming verbal har­assment and abuse because such behaviorby police and guards does not violate theconstitution.

The excessive force allegations stateda claim because the hog-tying and footstomping could be found by a jury toviolate due process. She also stated aclaim for retaliation where she told policeshe would sue them and they stomped onher bare feet and when she was denied ashower after reporting the rape to awoman's crisis center. Readers shouldnote that this is not a ruling on the meritsof the case. The court only determinedthat Huffman had alleged sufficient factsto entitle her to proceed without prepay­ment of costs and fees. See: Huffinan v.Fiola, 850 F. Supp 833 (ND Cal. 1994).

Refusal to HelpPrisoner Eat Illegal

A Wisconsin state prisoner sufferingfrom amyotrophic lateral sclerosis(ALS), also known as Lou Gehrig's dis­ease, had difficulty eating due to weak­ness in his arms, hands, jaw, facial andthroat muscles used in eating due to thedisease's progression. Part of the treat­ment for ALS is good nutrition. He filedsuit in Wisconsin state court claiming thatprison doctors were deliberately indiffer­ent to his serious medical needs by notproviding him with assistance in eatingafter it was clear it had become difficultfor him to eat without assistance. The suitalso claimed that the DOC classificationchief had acted with deliberate indiffer­ence by delaying his transfer to anotherprison where such assistance was morereadily available. The trial court dis­missed his suit.

A Wisconsin state appeals court re­versed, ruling that the prison official de­fendants were not entitled to qualifiedimmunity. It held that the facts, as allegedby the suit, were sufficient to state aclaim for violating the prisoner's eighth

November 1994

amendment rights. Because the prisoner"suffers from a serious medical condi­tion, and treatment of the condition in­cludes adequate nutrition," deliberate in­difference to the need for feeding assis­tance violates the eighth amendment." And if he cannot obtain that assistancein one prison but can relieve it in another,deliberate indifference in failing to effecthis transfer violates the eighth amend­ment." See: Santiago v. Leik, 508N.W.2d 456 (Wis. App. 1993).

RFRA Must BeArgued on Merits

Prisoners at the Nebraska State Peni­tentiary filed suit under the ReligiousFreedom Restoration Act (RFRA) 42U.S.C. § 2000bb claiming that prison of­ficials had violated their right to practicetheir religion. The prisoners are adherentsto Asatru, an Icelandic term for the an­cient religion of the Teutons of NorthemEurope. Prison officials moved for sum­mary judgment claiming that the restric­tions they had placed on the prisonersreligious exercise were related to prisonsecurity.

The court denied the motion on itsmerits because prison officials had basedtheir argument around the Supreme Courtdecision in 0 'Lone v. Estate ofShabazz,482 US 342, 107 S.Ct 2400 (1987) whichdealt with prisoner's 42 U.S.C. § 1983challenge to prison officials restrictionson religious exercise. The district courtnoted that the RFRA was especially en­acted to overrule 0 'Lone and applied tostate prisoners retroactively. [See: PLN,Vol. 5, No 6 and 7]. Because prison offi­cials had crafted their argument aroundo 'Lone they had not addressed one oftheRFRA issues on which they bore the bur­den of proof: whether they employed the"least restrictive" means of furthering acompelling governmental goal. Thus theycould not succeed on their motion forsummary judgment.

The district court did, however, grantthe defendants qualified immunity formoney damages in their official and indi­vidual capacities. Government officialscannot be sued in their official capacitiesbecause it is forbidden by the eleventhamendment. Because the RFRA was notenacted until after this suit was filedprison officials could not be expected to

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comply with it and their conduct arguablycomplied with the constitutional standardset forth in 0 'Lone. These rulings did notaffect the prisoners claims for injunctiveand declaratory relief, only their claimsfor money damages. See: Rust v. Clarke,851 F. Supp 377 (D Neb 1994).

Admin ReversalDoesn't Affect Disc.

Hearing Suit

Robert Walker is a New York stateprisoner. During a search ofWalker's cellprison guards found a knife and excessbedding and infracted him for their pos­session. At his disciplinary hearingWalkerpleadednot guilty and maintainedthe knife and bedding belonged to thecell's previous occupant as he had onlyrecently moved into the cell. Walker spe­cifically requested the unit sergeant andthe guard assigned to the area to appearas witnesses at the hearing to support hisdefense. The hearing officer denied therequest without explanation, foundWalker guilty of the offenses and sen­tenced him to six months in segregation.Walker administratively appealed the de­cision which was reversed over twomonths after he began serving the sen­tence. No new hearing was held and hewas released from segregation about twoweeks after the reversal. Walker thenfiled suit under § 1983 claiming that thedenial of witnesses at his disciplinaryhearing violated his right to due process.

The district court dismissed the suitruling that the administrative dismissal ofthe infraction cured any due process de­fect in the initial hearing. The court ofappeals for the second circuit reversedand remanded holding that a cause ofaction under § 1983 accrues when theconstitutional violation occurs and ad­ministrative action after the fact does notbar suit.

The appeals court gave an extensivediscussion ofNew York state prison rulesgoverning the placement of prisoners inSpecial Housing Unit (SHU) and the con­duct of disciplinary hearings. The proce­dures established by the New York DOCcomport with the due process proceduralrights in disciplinary hearings establishedby the Supreme Court in Wolffv. McDon­nell, 418 US 539, 94 S.Ct. 2963 (1974).Among the rights established by the su-

Prison Legal News

preme court, and codified by the NYDOC, is the right to call witnesses atdisciplinary hearings. The denial of aprisoner's request for witnesses at a hear­ing, without any explanation, is a com­pensable constitutional due process vio­lation. The only question in this case waswhether the administrative appealsscheme provided by New York's regula­tory scheme cured the violation.

The court notes that Cleavinger v.Saxner, 474 US 193, 106 S.Ct. 496(1985), is almost factually identical tothis case where prisoners were deniedtheir right to call witnesses at a discipli­nary hearing, were found guilty and onadministrative appeal, were found "notguilty." They sued, were awarded dam­ages by a jury and the verdict was upheldby both the seventh circuit appeals courtand the US Supreme Court. In Cleavingerthe supreme court held that prison disci­plinary hearing officers were only enti­tled to qualified immunity for violatingconstitutional rights at disciplinary hear­ings. The appeals court in this case gavean extensive overview of their rulings inprison disciplinary hearing cases, both onthe issues of immunity from damages,rights at hearings and the effect ofadmin­istrative appeals on later lawsuits.

"The rule is that once prison officialsdeprive an inmate of his constitutionalprocedural rights at a disciplinary hearingand the prisoner commences to serve apunitive sentence imposed at the conclu­sion of the hearing, the prison officialresponsible for the due process depriva­tion must respond in damages, absent thesuccessful interposition ofa qualified im­munity defense." While the defendant inthis case may yet successfully raise aqualified immunity defense "We holdonly that Walker's success in the admin­istrative appeal process does not bar hissection 1983 claim and that his complaintstates a claim for relief." See: Walker v.Bates, 23 F.3d 652 (2nd Cir. 1994).

Disputed DisciplinaryFacts Require Reversal

Michael Mays is a New York stateprisoner who was infracted for allegedlyrefusing to return to his cell when a guardordered him to do so. After a disciplinaryhearing Mays was found "guilty" andsentenced to segregation, loss of good

Prison Legal News

time and privileges. He appealed the fmd­ing to the prison warden claiming that hewas never served with a copy of the in­fraction report nor advised ofhis rights atthe hearing, which was held without him.The warden reversed the infraction for"procedural error" and ordered Mays'records expunged. By that time Mays hadserved the segregation and loss of privi­leges sentence imposed at the hearing.

Mays filed suit under 42 U.S.C. § 1983claiming that his due process rights wereviolated at the hearing. The district court

··dismissed thesuitruling..that-.even if.Mays' rights were violated the adminis­trative reversal by the warden cured anyconstitutional defect at the hearing.

The court of appeals for the secondcircuit reversed and remanded. The stateclaimed that Mays was served with a copyofthe report but refused to sign for it, thathe was advised of his rights at the disci­plinary hearing but waived them. Maysclaimed he was not served with the reportand did not waive any of his rights at thehearing which he was not allowed to at­tend. The appeals court held that this cre­ates a factual dispute which the lowercourt erred by resolving in the defen­dant's favor by granting them summaryjudgment. The factual dispute must beresolved by a jury to determine if Mays' ­rights were in fact violated at the hearing,whether the violation was committed bythe hearing officer or by the guard whoclaimed Mays waived his right to attendthe hearing and whether there is a basisfor qualified immunity.

The appeals court noted that its com­panioncase, Walkerv. Bates, 23 F.3d 652(2nd Cir. 1994), held that the administra­tive reversal of a disciplinary hearingfinding does not cure a constitutional vio­lation at the hearing ifpunishment is im­posed as a result. [See previous article].Thus, Mays' cause of action occurred atthe time his rights were violated despitethe fact the infraction was later dismissedon appeal. See: Mays v. Mahoney, 23 F.3d660 (2nd Cir. 1994).

Attorney Fees forContempt Hearing

Jail prisoners of the Natrona Countyjail in Wyoming initiated contempt pro­ceedings against jail officials for not hav­ing complied with the terms of a consentdecree entered into between prisoners andjail officials over jail conditions. The dis-

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trict court concluded that the county jailofficials were indeed in contempt andentered an order detailing the officials'failure to abide by the decree. The prison­ers' attorneys then sought an award ofattorney fees pursuant to 42 U.S.C. §1988.

The court concluded that the prison­ers' attorneys were entitled to attorneyfees. The primary issue addressed by thecourt in its ruling was whether outoftownattorneys should be reimbursed at the lo­cal, Wyoming, rate or the out oftown ratebased on where counsel is located. In thiscase, the prisoners' attorney StephenPevar of the Denver ACLU, sought $150an hour. The court awarded him $150 anhour for a total fee award of $41,340,which would be paid to the ACLU.

The court awarded Pevar rates and liti­gation costs related to the contempt hear­ing (phone, postage, copying, deposi­tions, etc.) based on Denver rates. Themain reason relied on by the court was thefact that no Wyoming attorney was or iswilling to undertake jail institutional re­form litigation, has the resources, exper­tise or inclination to do so. Moreover,Pevar has extensive experience in jail re­form litigation which no local attorneyhad. See: Kersch v. Board of CountyCommissioners ofNatrona Count)!; 851F. Supp. 1541 (D WY 1994).

Failure to TreatTeeth States Claim

M ark Kinney is a Missouri state pris­oner. Kinney went to the prison dentist,Dr. Kalfus, for removal of a tooth thatwas chipped and decayed, to have a cavityfilled and for treatment of gum disease.Kalfus pulled the wrong tooth and ac­knowledged doing so at the time. The

. extraction site later became infected re­quiring further treatment. Kalfus refusedto fill in the cavity, extract the infectedtooth or treat the gum disease despiteKinney's complaints that he was in pain,his gums were bleeding and he had diffi­culty eating.

Kinney told Kalfus he would sue himfor malpractice for having removed thewrong tooth and failing to treat him. Kin­ney filed several administrative griev­ances requesting to receive immediatedental treatment from a dentist other thanKalfus. Kalfus was the official who re­viewed the grievances and, not surpris-

November 1994

4th Cir. Clarifies 8thAmendment Standard

was not suitable for probation and thedistrict court duly ordered him to servehis sentence.

Free appealed claiming that his dueprocess rights were violated by the DOC

- Jurisdictional Review Committee, whichwas the body that submitted the prisonrecommendation to the judge. At the timeof the hearing Free was held in adminis­trative segregation and he had requestedpaper and writing tools to prepare a writ­ten rebuttal statement at the hearing.Prison officials refused his request. TheIdaho court ofappeals held that the denialof writing materials violated Free's rightto due process and ofaccess to the courts

Probation recommendation hearingsheld by the Idaho DOC are neither re­corded nor transcribed. A committeemember prepares a summary paraphras­ing the prisoner's oral statement. Unlessthe prisoner submits a written statementhis views will never reach the sentencingjudge. Free claimed his oral statementwas mischaracterized by the committeewhen it was sent to the judge.

The court notes that in Bounds v.Smith, 430 US 817, 97 S.Ct. 1491 (1978),the supreme court held that in order toensure prisoner's right of access to thecourts, prison officials supply prisonerswith paper, writing tools, notary servicesand postage. The court in this case citedseveral rulings from other federal courtsto this same effect and held that the denialof paper and pen violated Free's right ofaccess to the courts because it left him nomeans with which to communicate to hissentencing judge that probation was ap­propriate for him. The court did note thatprisoners in this type of proceeding arenot entitled to counsel, law library accessor law clerk assistance, just pen and pa­per. The court ordered a new probationsuitability hearing held. See: Free v. State,874 P.2d 571 (Idaho App. 1993).

Failure to Treat (cont)

ingly, he denied the requests. Six monthsafter he had initially sought treatment,Kalfus filled the cavity and another den­tist extracted the infected tooth. Kinneyfiled suit under § 1983 claiming that thelengthy delay in treatment of his toothproblems violated his eighth amendmentrights. The defendants moved for sum­mary judgment and sought qualified im­munity from damages. The district courtdenied both motions and set a trial date.The defendants filed an interlocutory ap­peal concerning the denial of qualifiedimmunity and the court ofappeals for theeighth circuit affirmed the lower court'sdenial.

The appeals court, in a brief opinion,notes that prisoners have a right to prompttreatment of their serious medical needs,see: Estelle v. Gamble, 429 US 97, 97 S.Ct. 285 (1976). This court has previouslyheld that delaying dental care for a threeweek period, despite knowledge that aprisoner is suffering severe pain, states aclaim for a § 1983 violation. See: Fieldsv. Gander, 734 F.2d 1313 (8th Cir.1984). Thus, a reasonably competentprison dentist knew or should haveknown that not treating a prisoner's den­tal needs would violate clearly estab­lished law.

The appeals court held that due to thefactual disputes in the case, Le. whetherKalfus refused to treat him in retaliationfor Kinney suing him for malpractice, thelower court had correctly denied the de­fendants qualified immunity. See: Kinneyv. Kalfus, 25 F.3d 633 (8th Cir. 1994).

Idaho Cons Entitledto Pen & Paper

This is an Idaho criminal case whichaddresses prisoner's right ofaccess to thecourts in the habeas context, we addressonly that part of the case dealing withprison conditions. In 1989 James Freewas convicted and sentenced to a term ofthree to ten years with the district courtretaining jurisdiction for 180 days. Freewas committed to an Idaho DOC facilityand near the end ofthe 180 day period theDOC held a hearing to review Free's suit­ability for probation. The DOC held he

ed the appeals court granted a rehearingen banc and reinstated the dismissal ofthesuit. In doing so the court held that theprisoner, Norman, had not alleged suffi-

. cient injury to state a claim for an eighthamendment violation.

In Hudson v. McMillian, 112 S Ct. 995(1992) the Supreme Court ruled that pris­oners filing eighth amendment claims in­volving excessive use of force in non­emergency situations need not claim"significant injury" in order to succeedThe appeals court in this case has takenthat to mean that" Hudson does not sug­gest, much less hold, that the extent ofinjury is irrelevant to whether excessiveforce has been employed and thereforethat an excessive force claim cannot bedefeated by evidence that the plaintiffsinjury was de minimis." In making thisruling the court agreed with two otherpostHudson cases: Cummings v. Malone,995 F.2d 817 (8th Cir. 1993) and Rankinv. Klevenhagen, 5 P.3d 103 (5th Cir.1993).

In this case the court held that" ..ab­sent the most extraordinary circum­stances, a plaintiff cannot prevail on anEighth Amendment excessive forceclaim if his injury is de minimis." In afootnote the court acknowledged thatthere may be situations in which a pris­oner receives little or no enduring injuriesbut nevertheless will have suffered animpermissible infliction of pain. Thecourt believes that the use offorce ofthatnature would of the type" 'repugnant tothe conscience of mankind' and thus ex­pressly outside the de minimis force ex­ception. . . or the pain itself will be suchthat it can properly be said to constitutemore than de minimis injury."

In reinstating the dismissal of the suit,the court held that Norman had not pre­sented any evidence to either show he hadsuffered the injuries he had claimed northat the force was not legitimately used torestore order and discipline in the jail.Five judges dissented from this rulingholding that the injuries alleged by Nor­man were not de minimis and that he was

Intl1~ -M;y, -1994i;;~e~fPLN~~- -~:~:~~~~ ~::}:ac:Ji:a~~:~u:~i~:~reported Norman v. Taylor, 9 F.3d 1078 See: Norman v. Taylor, 25 F.3d 1259 (4th(4th Cir. 1994) in which the appeals court Cir. 1994) (en banc). The previous cita-reversed the dismissal of a Virginia jail tion should not be used as this ruling hasprisoner's § 1983 suit which alleged that superseded it.a jail sergeant had hit him in the face andthumb with a set ofkeys after he had triedto smoke. After that opinion was publish-

November 1994 -6- Prison Legal News

Allan Dillon is a Virginia state pris­oner who was raped by another prisoner.Lawrence Dury was the Virginia DOC(VDOC) internal affairs investigator as­signed to investigate the rape. During asearch of Dillon's cell pursuant to theinvestigation, Dury discovered papers in­dicating that Dillon was in the process offiling a lawsuit against him and anotherVDOC employee. Dillon claimed thatwhile interviewing him concerning theassault Dury ordered him to remove himfrom the suit and threatened to impedeDillon's early release from prison if hedid not comply. Dury filed charges offiling a false report against Dillon, whichwere later dismissed by a state judge whofound there was sufficient evidence tosuggest that a rape had in fact occurred asDillon claimed. Dillon filed suit under 42U.S.c. § 1983 against Dury and otherVDOC employees claiming that their ac­tions violated his right of access to thecourts by retaliating against him afterthey learned he was in the process offiling suit against them.

The· defendants filed for summaryjudgment and the district court granted itwith regards to some of the defendantsand denied it for others. The court notes

Retaliation SuitRequires Trial

ico officials. The court did not address the"exact cite" claims. The court ofappealsfor the tenth circuit affirmed in part andremanded in part.

"In the context of denial of accessclaims, the general rule imposes upon thesending state authorities the responsibil­ity for ensuring their prisoners incarcer­ated in sister state facilities are affordedaccess to state courts." The appeals courtrejected Clayton's argument that Rich v.Zitnoy, 644 F.2d 41 (1st Cir. 1981) re­quired receiving prison officials to pro­vide legal materials from the sendingstate because Rich involved a state pris­oner sent to a federal prison. " ...we adoptthe consensus that it is the sending statewhich bears the burden of providing therequired state legal materials as stated bythe district court."

The appeals court remanded Clayton'schallenge to the exact cite system back tothe district court for consideration on itsmerits. See: Clayton v. Tansy, 26 F.3d980 (10th Cir. 1993).

Transferee EntitledTo Sending State

Case Law

1993), which held that forcible participa­tion in an AA program violated the plain­tiffs establishment clause and freespeech rights. Both this court and Warrenrejected application of the supremecourt's "reasonableness test" of Turnerv. Safely, 482 US 78, 107 S.Ct. 2254(1987), holding that establishment clausecases involving prisoners are govemedby the balancing test in Lemon v.Kurtzman, 403 US 602, 91 S.Ct. 2105(1971). Lemon held that the estab­lishment clause forbids the governmentfrom coercing anyone to support or par­ticipate in religion or its exercise or favor­ing one religion over another. To survivea challenge under Lemon the challengedgovernment activity or statute must 1)have a secular purpose; 2) its primary orprinciple purpose must be one that neitheradvances or inhibits religion; and 3) mustnot foster excessive government entan­glement in religion.

The court did not state whether or notthe program at issue in this case actuallyviolated the plaintiffs' rights or not. It didhold that the defendants were entitled toqualified immunity because a reasonableprison official would not have known in1991 that forcing prisoners to attend areligiously oriented alcohol programwould violate the participants' rights.Presumably the court will eventually de­cide the case on the merits. See: Scarpinov. Grossheim, 852 F.Supp. 798 (SD Iowa,1994).

Prison Alcohol Pro­gram May Violate

Free Speech

The Iowa Civil Liberties Union(ICLU) and prisoners at the Clarinda Cor­rectional Facility (CCF) filed suit under §1983 challenging the DOC's expenditureof taxpayer funds on an alcohol rehabili­tation program called "The Other Way."According to the complaint, this programhas a heavy religious component whichrequires participants to believe in god ingeneral and christianity in particular.CCF prisoners were required to attend theprogram in order to receive parole consid­eration. In this case the court didnot reacha ruling on the merits in consideringprison officials' motion for summaryjudgment but it did give a detailed analy­sis of the relevant case law to be used inanalyzing this type ofclaim.

The court held that because the estab­lishment clause of the constitution pro­hibits the expenditure of governmentfunds on religious activity, the ICLU andany taxpayer has standing to challengesuch expenditure. In this case, the ICLUhad taxpayer standing, both in its ownright and as a representative of its mem­bers, to challenge the expenditure ofprison funds on "The Other Way."

The defendant prison officials soughtdismissal of the action on grounds ofmootness because none of the prisonerplaintiffs are still at CCF. The court re­sponded by certifying the case as a classaction for all present and future CCF pris­oners who may be required to attend theprogram. The court also gave a discussionof the factors to be considered in ruling Jon motions for injunctive relief. In this ames Clayton is an Oklahoma statecase those factors were met because the prisoner subjected to an involuntary outprogram was too short (12 weeks) for of state transfer to New Mexico. Claytonparticipants to fully litigate it prior to the had several pro se legal matters pendingactivity ceasing and there is a reasonable in Oklahoma state courts at the time ofhisexpectation that CCF prisoners will again transfer. The New Mexico prison systembe subject to the action in the absence of did not have any Oklahoma legal materi-court action. als and relied extensively on an "exact

In analyzing the plaintiffs' estab- cite" paging system to provide law li-lishment claims the court rejected reli- brary access. Clayton sued New MexicoanceonStaffordv. Harrison, 766F. Supp prison officials under 42 U.S.C. § 19831014 (SD Iowa, 1991) where the court claiming that they had violated his rightheld that participation in an AA type 12 of access to the courts by not providingstep program did not violate the estab_himwithOklahomalegalmaterials a."1dlishment clause. Instead, the court relied by using the "exact cite" paging system.more on Warren v. Orange County Dept.· ····The districteourt1iismissedthe suitofProbation, 827 F. Supp. 261 (SD NY holding that the proper defendants were

Oklahoma prison officials, not New Mex-

Prison Legal News -7- November 1994

Retaliation Suit (cant)

that prison officials are forbidden fromretaliating against prisoners who exercisetheir right ofaccess to the court by suingprison officials or otherwise complainingabout prison conditions. In order to win aretaliation claim, the prisoner-plaintiffjust show that his litigation activities werethe actual motivating factor for the retali­ation. This is also known as the"but for"standard where the fact fmder must deter­mination if the given action would havebeen taken "but for" the legal activities.There is some difference between the cir­cuits on what standard should be used inprison retaliation cases. Litigants in thefourth circuit engaged in this type of liti­gation should study this case.

The court held that Dillon had allegedsufficient facts to survive a summary judg­ment challenge. Because the defendants,specificallyDury, denied retaliating againsthim, there was a material issue of fact re­quiring a trial by jury to resolve. The courtdismissed the suit against several of thesupervisory prison officials who were notshown to be involved in any of the allegedretaliatory activities. See: Dillon v. Murray,853 F. Supp 199 (WD VA, 1994).

Retaliation forGrievances Illegal

Gary Hines is a California state pris­oner. Hines filed suit claiming that prisonguards had broken his television set inretaliation for administrative grievanceshe had filed against them. After filing agrievance against the guards who alleg­edly broke his television, another guardinfracted him for allegedly tamperingwith the seals on his television and con­fiscated the TV. At a disciplinary hearingHines was found guilty and told that ifhereceived another infraction within 90days he would be forced to ship his TVout of the prison. Hines was later in­fracted and as a result lost his TV. He filedsuitunder42 U.S.C. § 1983 clairningthatthebreaking of his TV set and the differentinfractions were aresultofretaliation againsthim by prison officials after he filed admin­istrative grievances against prison staff.

The defendant prison officials soughtsummary judgment claiming that the fil­ing ofadministrative appeals by prisonersis not a constitutionally protected activity

November 1994

and therefore retaliation for such filingsis not actionable under § 1983. The dis­trict court denied the motion and gave anextensive discussion of the law relevantto retaliation claims in general and thoseinvolving prison administrative griev­ances in particular.

"To establish a claim of retaliationunder 42 U. S.C. § 1983, plaintiff mustfirst establish that he engaged in constitu­tionally protected activity and second thathis conduct was a substantial or motivat­ing factor behind the supposedly retaliatoryacts. . . If plaintiff meets this burden. thedefendants are entitled to show that theywould have taken the same actions even inthe absence ofthe protected conduct."

The court notes that prisoners are notconstitutionally entitled to a prisonergrievance system. But, once such a sys­tem is established, a prisoner's use ofadministrative grievances is constitution­ally protected under the first amendmentright to petition the government for theredress ofgrievances. The court cites sev­eral cases from other circuits which haveheldprisoners' use ofgrievance systems areconstitutionally protected and prison offi­cials' retaliation against prisoners who usethe grievance system is unconstitutional.

The court rejected the defendants, ar­guments that because state regulationsprovide that "no reprisal shall be takenagainst an inmate or parolee for filing anappeal" the retaliation issue shouldbe leftto state courts to remedy. As an analogythe court noted that had Hines written thegovernor to complain of prison condi­tions that activity would also be constitu­tionally protected. The court saw no dif­ference between that and using a stateestablished procedure to complain ofprison conditions to the prison admini­stration, also an executive branch of thegovernment. "In the court's view, to holdotherwise would trivialize the plaintiffsright to petition the government." See:Hines v. Gomez, 853 F. Supp. 329 (NOCal. 1994).

Shortened PensStates Claims

Two prisoners in the segregation unitofthe Waupun Correctional Institution atWaupun, Wisconsin, filed suit challeng­ing the prison's practice ofissuing segre­gation prisoners only the ink tube portionof a ball-point pen with which to write.

-8-

Prisoners who modify the ink tube inanyway are only allowed a crayola crayonwith which to write. The prisonersclaimed they had litigation pending in thecourts and as a result of the ink tubepractice it was difficult for them to writepleadings in a legible manner; makingcarbon copies is impossible due to thetube's softness and writing with the tubescauses painful cramps and aches whichdiscourages the prisoners from pursuinglegal and administrative remedies. Theprisoners filed suit under § 1983 claimingthat the ink tube practice violated theirright ofaccess to the courts and sought aTemporary Restraining Order (TRO) tohalt the practice while it is litigated

The court did not rule on the merits ofthe case. But, in its published opinion thecourt reviewed the claim under 28 U.S.C.§ 19l5(d) and held the claim was notlegally or factually frivolous and that itstated a claim upon which reliefcould begranted. The court notes that in order toassure prisoners' right of meaningful ac­cess to the courts, pen and paper must beprovided by prison officials but was un­sure as to what exactly constitutes a"pen." Several cases involving access towriting instruments are cited.

Because the plaintiffs had stated avalid claim, the court ordered service onthe defendant prison officials and orderedthe defendants to respond to the TROmotion. See: Kirsch v. Smith, 853 F. Supp301 (ED WI 1994).

Detainees Can't BeForced to Work

Dickie Cokeley is an Arkansas stateprisoner. While confined in the ArkansasDOC his criminal conviction was re­versed by a federal court. Upon reversalof his conviction Cokeley asked prisonofficials to place him on an unassignedwork status. They refused to do so andordered him to work, when he refused towork he was infracted and punished.Cokeley filed suit under 42 U.S.C. § 1983claiming that forcing him to work whilehis status was that of a pretrial detaineeviolated his right to due process andforced him into involuntary servitude, i.e.slavery. He also claimed his right of ac­cess to the courts was violated whenprison officials denied his request to callhis attorney. The district court dismissedthe suit as being frivolous under 28 U.

Prison Legal News

u.S. S. Ct. to HearPrison & Parole

Cases

- The 1994c95 term of the UnitedStates Supreme Court began on October3, 1994. Among the cases scheduled forhearing by the Supreme Court are twocases previously reported in PLN whichwill have wide ranging effect.

California Department ofCorrectionsv. Morales, 93-1462, is the state's appealfrom the ninth circuit ruling at 16 F.3d1001 [See: July, 1994, PLN] in favor ofMorales. Morales is a California stateprisoner who was convicted ofmurder forthe second time in 1980. At the time ofhis second conviction California law pro­vided for annual parole hearings once aprisoner was eligible. This law was lateramended to allow for parole hearingsevery three years. Morales went to hisfirst parole hearing in 1989 and wasscheduled for another one in 1992. Hefiled a habeas corpus petition challengingthe change in parole hearings as a viola­tion of the Ex Post Facto clause of the

s.c. § 1915(d). The court of appeals forthe eighth circuit reversed and remanded.

The appeals court held that Cokeleyhad stated a valid legal claim in his com­plaint. A successful habeas petitioner,like a pretrial detainee, has not been con­victed of a crime and is being held incustody pending trial to determine guilt."Pursuant to the due process provisionsof the Fourteenth Amendment, a pretrialdetainee may not be punished prior to adetermination ofguilt in accordance withdue process." Bell v. Wolfzsh, 441 US520, 99 S. Ct. 1861 (1979). In Martinezv. Turner, 977 F.2d 421 (8th Cir. 1992)the appeals court held that " .. requiring apretrial detainee to work or be placed inadministrative segregation is punish­ment."

"Cokeley alleges that, after his habeaspetition was granted but while he was stillimprisoned, he was punished when herefused an order to work. Coke1ey thushas raised a novel claim with an arguablelegal basis that the due process clauseprotects a successful habeas petitionerfrom punishment as it does a pretrial de­tainee. The district court abused its dis­cretion in dismissing this claim." Theappeals court remanded the claim back tothe lower court and also instructed thedistrict court to consider the court accessclaim as well. See: Cokeley v. Endell, 27F.3d 331 (8th Cir. 1994).

Evidence MustSupport Disciplinary

Charge

Indiana is unique in that it does notprovide any state court remedy for pris­oners who lose good time in prison disci­plinary hearings. As a result, Indiana stateprisoners seeking the restoration of lostgood time or expungement of infractionsmust file directly in federal court pursuantto 28 U.S.C. § 2254, the federal habeascorpus statute.

Steven Huffman, a Westville Correc­tional Center prisoner, was observed in astaff bathroom with a female prisonguard. Prison investigators obtained theemployee's home phone records whichshowed she had received numerous callsfrom Huffman over a two week period.As a result of this investigation Huffmanwas infracted for" trafficking" by giving

messages to Huffman over the phone and constitution. The Ex Post Facto clausein person at the prison (i.e. speaking to prohibits increasing the penalty or pun-her). Huffman was found guilty of the ishment of crimes after they were com-charges and an unspecified punishment mitted or criminalizing conduct after thewas imposed. The case does not state fact.what action, if any, was taken against the The ninth circuit court of appealsguard. agreed with Morales and granted his writ

Indiana Code Section 35-44-3-9 de- of habeas corpus, stating that he was en-fmes trafficking as taking an article to or titled to annual parole hearings. As pre-from a prisoner in a penal facility without viously reported in PLN, there is a deepthe warden's authorization. In granting conflict in the ninth circuit on this issue.Huffman's petition for habeas corpus the In Powell v. Ducharme, 998 F.2d 710 (9thdistrict court held that the infraction re- Cir. 1993), the appeals court held that aport did not list any facts to indicate that sentencing scheme in Washington effec-any article had been taken in or out ofthe tively extended the parole eligibility hear-Westville prison, thus, no evidence sup- ings of several hundred life sentencedported the fmding of guilt. While Huff- prisoners but did not violate the Ex Postman may be guilty of some offense, he Facto clause. However, in Flemming v.was not guilty of "trafficking" and the Oregon Bd. ofParole, 998 F.2d 721 (9thcourt granted his petition for habeas cor- Cir. 1993), the court ruled just the oppo-pus. site. Holding that a change in the fre-

In doing so, the court gives a brief quency ofOregon parole hearings was ananalysis ofthe "some evidence" standard Ex Post Facto violation. The Supremeapplied to the judicial review of prison Court decision should eliminate this splitdisciplinary hearings in the seventh cir- within the ninth circuit. This decision willcuit. The court also referred to several also have an effect on the still pendingIndiana state cases involving criminal Powell litigation [See: September, 1994,convictions for trafficking items into ... -PLIvl Toe sole issue presented for re-prisons. See: Huffman v. McBride, 853 F. view by the court is: "Does retrospectiveSupp 1095 (NO IN 1994). reduction in frequency of parole eligibil­

ity hearings violate prohibition against expost facto laws contained in Article I,Section 9, Clause 3 and Article I, section10 of the U.S. Constitution?"

An interesting side note, in its 1993-94term the supreme court agreed to hear anappeal on the Ex Post Facto issue in afourth circuit case, Roller v. Cavanaugh.After hearing oral argument, the case wasremoved from the docket and no ruling onthe merits was given by the SupremeCourt because the South Carolina legisla­ture changed the law.

The sole prison case on the supremecourt docket so far (usually the courthears one or two prison cases per term) isRowe v. DeBruyn, 94-249. The lowercourt ruling, 17F.3d 1047 (7thCir. 1994),held that prisoners have no right to selfdefense. The case involves an Indianastate prisoner who was infracted and pun­ished by prison officials for fighting offan attempted rape. [See: PLN, July,1994]. The question presented for reviewby the supreme court is: "Does prisonerbeing attacked and raped have fundamen­tal right, protected by the Due ProcessClause, to defend himself?"

Prison Legal News ·9· November 1994

BOP Phone Litigation Update

In the March, 1994, issue ofPLNwereported on Washington et al. v. Reno, etal., a lawsuit filed by women prisoners atFCI Lexington challenging the federalBureau of Prisons (BOP) newly imple­mented Inmate Telephone System (ITS).[Editor's Note: For a full account oftheITS operations and the issues raised inthe suit and the preliminary rulingsplease refer to the March, 1994, issue.]The suit was initially filed in May, 1993,and the court appointed counsel to repre­sent the plaintiffs in the action. In theamended complaint, the plaintiffs chal­lenge the ITS on grounds of free speech,due process, eighth amendment, equalprotection and constitutional taxing pow­ers. They also challenged the BOP's vio­lation of its own administrative rules re­garding the ability of prisoners to placecollect calls and the BOP's failure tocomply with the Administrative Proce­dures Act (APA). The BOP's "Requestfor Telephone Privilege" was challengedunder the Privacy Act as unduly intrusive.Also challenged was the BOP's attemptto condition phone use upon participationin the Inmate Financial ResponsibilityProgram (IFPR), i.e. payment offines andsuch. The suit attacked the use of profitsfrom the Commissary/Inmate WelfareFund, a statutory trust, to purchase andoperate the ITS when the welfare fund issupposed to be used as a trust for thebenefit of prisoners, not for the BOP.They also challenged the ITS under theFederal Communications Act of 1934.

After a hearing on October 10, 1993,the district court in Kentucky issued apreliminary injunction in favor of theplaintiffs on October 13, 1994. Amongthe issues covered by the injunction were:1) The BOP could not install its new ITSwithout providing an equivalent collectcall system that used to exist prior to theITS; 2) The BOP must make all facilitiesthat already had the ITS (40 out of 80)provide prisoners with a collect call capa­bility that formerly existed within a rea­sonable time period; 3) The BOP wasbarred from conditioning prisoner'sphone use on their IFRP participation; 4)The BOP was barred from limiting thetypes of persons (i.e. media, courts,elected officials, etc.) prisoners could liston theirphone list, except they could limit

the number ofpersons to no less than 20; prisoners and the public, with regards to5) The BOP was barred from spending ··theBOP·s "proposedruie" regarding thefunds from the Commissary/Inmate Wel- ITS, comments were received from pris-fare Fund Trust to pay for the ITS except oners, news organizations, prisoner sup-that prisoners could be required to pay for port groups, class counsel and interestedtheir ITS placed calls, and those funds citizens across the country. The BOP'scould be reimbursed paid from the trust. new "rule" responds to many ofthe com-

On November 18, 1993, the court cer- ments received and capitulates on virtu-tified the suit as a nationwide class action ally all constitutional, indigency and fair-suit on behalf of all federal prisoners ness issues raised by the plaintiff's classthroughout the United States. The district in the lawsuit and the "comments" re-court declined to stay its order of the ceived from prisoners.preliminary injunction while the govern- The new "rule" abolishes the Requestment appealed. The Sixth Circuit court of for Telephone Privilege form that was soappeals granted a temporary partial stay intrusive of potential call recipients' pri-of the PI pending hearing the appeal on vacy. It also eliminates any limitation onthe PI. The partial stay allowed the BOP the types ofpersons whom prisoners mayto continue operating the ITS in the insti- ordinarily select for their lists and in-tutions that already had it as of October creases the maximum from 20 to 3013, 1993, (about 40) as if there were no phone numbers. The rule permits thePI in place. The PI remains in full force BOP to send a notice to potential calland effect for all the other institutions not recipients, and unless the potential callhaving the ITS in operation as ofOctober recipient notifies the BOP that he/she13, 1993. The sixth circuit placed the does not want to receive phone calls, theappeal of the PIon a "fast track" and person will be included on the prisoner'sordered prompt briefing. Oral argument ···phooe iistTheBOP reservesroitseifthebefore the appeals court was held on May right to exclude certain persons from be-12, 1994. As we go to press they have just ing phoned by prisoners for" security"rendered a decision in the case, which we reasons. But, if the BOP exercises itswill report in full in an upcoming issue. exclusion it will now have to provide the

During the pendency of the litigation call-recipient and the prisoner with a formthe BOP has made numerous changes to ofadministrative due process (notice andthe manner in which it operates its ITS, opportunity to be heard, with appealmany of which respond to the claims rights).made in the lawsuit. In its briefs to the The rule alleviates families' concernsappeals court the BOP claimed that that if they have to send money to a pris-elected officials, members of the court oIier for phone calls, the money mightand media could be listed on prisoner's actually have to go towards payment ofITS phone lists. The plaintiff's attorney the prisoners IFRP obligations, i.e. fmes,called the BOP's briefs incorrect and mis- restitution, etc. The new rule allows up toleading on this point and the BOP submit- $50.00 a month to be exempted fromted supplemental filings to the appeals IFRP calculation. The new rule will stillcourt correcting its briefs. On or about tie ITS phone use to a prisoner's IFRPMarch 15, 1994, the BOP issued a nation- participation, but this latter tying provi-

. wide memorandum to all prisons requir- sion does not take effect until January 3,ing them not to exclude eiected officials 1995. The $50.00 exemption does pro-and members ofthe media or courts from vide prisoners some measure of beingprisoners' ITS phone lists. At about the able to receive family financial help forsame time the BOP issued a nationwide ITS phone calls without contributing thatdirective to all prisons not to exclude support to the prisoner's IFRP obliga-prisoners from ITS phone use based tions. Nonetheless, prisoner earnings willsolely on their "IFRP-refuse" status. be counted towards IFRP refusal statusThis was partial victory for the plaintiffs. and will be a condition for ITS phone use

On April 4, 1994, the BOP issued its after January 3, 1995. The litigation willnew" final rule" regarding the ITS, see: continue to challenge this aspect of the59 Fed. Reg. 15812-25. After being or- ITS.dered by the district court to leave its The rule provides for a limited defini-"comment" period open for input from tion of" indigency," i.e. no money on the

November 1994 -10- Prison Legal News

direct dial calling system. The BOP'snew "rule" has capitulated on a numberofconstitutional issues and therefore, theappeals court will most likely focus on theCommissary Fund question. -PLNwiiicontinue to keep readers posted ofdevel­opments in the case as they occur. Todate, this is the most significant litigationchallenging prison phone systems any­where in the country and the appeals courtruling may have a significant impact onpending and future litigation on this issue.

were down to about 500-600 a day fromover 2,000 a day before the boycott. Theloss in revenues forced the phone contrac­tor, Global-Link, to reduce its rates. Thereare however· important -differences. InLouisiana the prisoners' position hadbeen supported by that state's utilitiescommission and unhappy prison officialswho maintained Global Link was notcomplying with the contract it had signed,and concerned only rates. In Massachu­setts the new phone policy is part of atightening noose on prisoners' collectiveneck imposed by reactionary governorWilliam Wetd who has vowed to make

. that state's-prisonslike"a tour throughthe nine circles of hell." (See PLN, Au­gust, 1994). Illustrative of that was thefact that the MA DOC signed the phonecontract with NYNEX on January 27,1994, and held the required public hear­ings on the matter March 2, 1994. TheDOC admits that the "hearings" are onlyfor promulgation purposes and that peo­ple who testify at such hearings have tounderstand that they are only for "publicventings" rather than anything of sub­stance.So much for "deniOcracy."

In addition to the boycott by prisoners,Massachusetts Legal Correctional serv­ices is in the process of filing suit chal­lenging several aspects of the new phonesystem. According to MCLS counsel, JimPingeon, the main focus of the litigationwill be on the inclusion ofmonitoring andtaping provisions in the MA DOC ruleson prisoner phone use. These provisionsviolate the Massachusetts wiretappingstatute, MGL Chapter 272, § 9SC. Whilethe DOC argues that the prisoners' accep­tance of a PIN constitutes "consent" tothe monitoring, MCLS's position is thatsuch "consent" is not valid because nochoice is given. Of particular concern isthe limiting effect this will have on pris­oners' ability to communicate with theoutside, especially the media, attorneys,civil rights groups, etc. Once the litigationis filed we will report that as well.

Nationally the attack on prisoners'phone access is taking several tacts. [See:BOP Phone Litigation Update on page10] First, are excessive rates, which areusually in excess of filed rates and thusillegal, which allows kickbacks to theDOCs. Second, restricting the number ofpeople that can be called or communi­cated with, especially the media and civilrights groups. This allows a greater con­trol on information and keeps the outsidefrom knowing what is going on inside.

MA DOC Uses New-Phone System---

By Paul Wright

As part of the nationwide trend to­wards more restrictive and more expen­sive prison phone systems, the Massachu­setts DOC signed a contract withNYNEX on January 27, 1994, for theprovision ofphone services to Massachu­setts prisons. The new phone system in­cludes monitoring and taping ofall calls;the pre-approval by the prison warden ofall numbers to be called; the listing, byname, of each person the prisoner willcall; the limiting of total personal num­bers to ten per prisoner; limiting of allattorney numbers to five. All calls aremade by a recorded voice announcingthat the call is coming from a prison. Thelength of calls is limited and the newsystem disallows use of third party andcall waiting services. Prisoners seeking tochange or add a number to their approvedlist (say a relative moves) can only do soonce every three months.

In order to use the system prisonersmust accept a Personal IdentificationNumber (PINS). Massachusetts prisonershave actively resisted the imposition ofthe new phone system., which went online in April, 1994. At Bay State, a prisonhousing mainly long term prisoners, of266 prisoners only 17 took PINS andwithin two months after that only 6 hadmade calls. At otherprisons, such as Shir­ley and Walpole, where some 10-20% ofprisoners took PINS there has been littlephone use. So far there has been no infor­mation as to what effect the phone boy­cott is having on the DOC.

10 the April, 1994, issue of PLN, Ireported the successful phone boycott byLouisiana prisoners protesting the in­crease in phone rates at the prison. At theheight of the Louisiana boycott, calls

prisoner's account in excess of $6.00 permonth. If the prisoner meets this level ofindigency, they will be entitled to onecollect call per month. This too is only apartial victory and will continue to be the .subject of litigation.

The assessment ofDouglas McSwain,the class counsel in this case, is that thenew ITS rules do not satisfy the plaintitrsdemands in this case but they do representa substantial partial victory at this point.Regardless of the new "rule" counsel isstill arguing at both the district and appel­late court level that the PI should be leftin place and that the sixth circuit's tem­porary stay of the PI should be lifted.- - -- -- --

Mr. McSwain has filed proposedamendments to the amended complaint inthe district court to add a count attackingthe BOP's new" rule." The basis for thatclaim is the rule is arbitrary in limitingindigent prisoners to only one collect callper month. The primary focus of theamendment to the pending complaint isthat the BOP is implementing and operat­ing the ITS out of the Commissary/In­mate Welfare Trust fund. This is beingchallenged as violating the terms of thetrust. The plaintiffs have also attacked therate making processes and methodologiesof the BOP in setting ITS phone rates, inparticular, the failure to publish the pro­posed rates for notice and comment. Alsochallenged is the failure to publish therates as tariffs under the Federal Commu­nications Act of 1934. If the plaintiffssucceed on these claims, the BOP willhave to stop operating the ITS altogetheror it will have to offer prisoners both acollect call and direct dial system callsystem, with the collect call capabilitycomparable to what existed before theITS.

The basis for the continuing attack istwo fold. First, the Commissary InmateWelfare Fund may only be properly spentfor prisoners' benefit, and a restricted col­lect call capability under the ITS is not forthe prisoners' exclusive benefit but ratherfor the BOP's benefit. Secondly, theBOP's ITS scheme improperly attemptsto set the ITS direct dial phone rates inviolation of constitutional and statutorydue process, the constitution's taxingpower, certain statutes pertaining to feesand charges for government services andthe Communications Act of 1934.

Mr. McSwain predicts that the currentappeal will focus on the Commissary/In­mate Welfare Fund trust issue and thePI's requirement of a dual collect and

Prison Legal News -11- November 1994

WI RemovesW.eights and Tennis

Courts

Wisconsin'S hard-line RepublicanGovernor Tommy Tnompson, apparentiyconcerned about his upcoming re-elec­tion bid, has ordered all weights and ten­nis courts removed from the Wisconsinprison system by October 1, 1994. Wis­consin prison officials were in the processof conducting an inventory of weightsand tennis equipment after which theweights and tennis equipment would bedeclared surplus and disposed of.

Asset Forfeiture isDysfunctional Policy

Third, chilling prisoners' speech as towhat they actually say by recording andmonitoring the calls. The net effect ofthese practices is to attempt to furtherisolate and alienate prisoners, cut themoff from society and their families as wellas keep society ignorant of prison condi­tions. The excessive phone rates serve as ahighly regressive tax on those least able toafford it: prisoner's families. We have regu­larly reported on phone issues in the pastand will do so in the future. Please keep usposted of any local developments in yourstate. The April, 1993, issue ofPLNhad anarticle by myselfoutlining the relevant caselaw on phone litigation. Copies are stillavailable, send $1.00 to cover copying andpostage and specifY the issue.

MA DOC (cant)than big traffickers, who are better able to confines law enforcement to less propertyinsulate themselves and their assets from per seizure, but may invite more frequentreverse sting operations. The report application of the tactic so as to maintainstates: "Efficiency is measured by the revenue levels already fixed in agencyamount of money seized rather than im- budgets.pact on drug trafficking." "In certain cases, asset forfeiture has

A reverse sting operation, where the --provedtobeava1uableenforcementtooI,officer becomes the seller who encour- however, this potential benefit must beages the suspect to commit a crime, "was weighed against dysfunctional conse-the preferred strategy ofevery agency and quences.... The innate contradictions ofdepartment with which the researcher asset seizure practices have surfaced aswas associated because it allowed agents highly controversial civil liberties viola-to gauge potential profit prior to investing tions that have increasingly eroded oura great deal of time and effort." More sense of fairness and have engendered aimportantly, the narcotics units studied frame of mind among drug enforcers ofpreferred seizing cash intended for pur- subordinating justice to profit... The in-chase of drugs supplied by the police, ability ofenforcers to effectively combatrather than confiscating drugs already on the pervasive illicit drug market providesthe street. When asked why a search war- no justification for rationalizing legalrant would not be served on a suspect mechanisms whereby law enforcementknown to have resale quantities ofcontra- agencies share the wealth ofdrug traffick-band, one officer responded: "Because ing under the guise of 'service' to soci-that would just give us a bunch of dope ety.and the hassle ofhaving to book him (the "Asset forfeiture has given drug en-suspect). We've got all the dope we need forcers a powerful incentive to maintainin the property room, just stick to round- and manage economic mechanisms thating up cases with big money and stay allow the illegal drug market to con-

Two sociologists received the 1994 away from warrants." tinueta market in which the drug enforc-Academy of Criminal Justice Sciences In one case an agency instructed the ers and drug traffickers become symbi-Award for their undercover study and researcher to observe the suspect's daily otic beneficiaries ofthe 'Waron Drugs'."critical analysis of asset forfeiture's im- transactions reselling a large shipment of Reprinted from: F.E.A.R Chronicles,pact on police procedure. Drug Enforce- ---~ocaine-so-thatofficerscouldpostpone . VoL 2 No; z;alluarterlypubtkationpub-ment 's Double-EdgedSword: An Assess- making the bust until after the majority of Iished by Forfeiture Endangers Americanment of Asset Forfeiture Programs, by the drug shipment was converted to cash.· Rights (F.E:A.R.), a non profit corpora-Mitchell Miller, Tennessee State Univer- This case was one of many in which the tion incorporated in Washington, D.C..sity, and Lance H. Selva, Middle Tennes- goal was profit rather than reducing the Its purpose is to lobby for the reform ofsee State University, a scholarly exami- supply ofdrugs reaching the street. state and federal forfeiture laws. F.E.A.R.nation ofdrug enforcement's use ofasset The researchers also found that, due to membership is $35 per year and includesforfeiture, will appear in a forthcoming competition for revenues between agen- a subscription to F.E.A.R Chronicles.issue ofJustice Quarterly. cies in adjoining or overlappingjurisdic- Send membership fees to: F.E.A.R., 265

The study is based on twelve months tions, "operations often disintegrated due Miller Ave., Mill Valley, CA 94941.ofcovert observation from within narcot- to a general lack of interagency coopera- (415) 388-8128.ics enforcement agencies by one of the tion, leaving numerous suspects atauthors who assumed the role of confi- large."dential informant in undercover drug in- The report concludes: "The tactics re-vestigations. The researchers assessed the quired to generate seizures (of cash) on aeffect offorfeiture on police conduct and regular basis too often conflictwith thecase selection. Their findings "suggest ideals of protecting and serving the pub-asset forfeiture is a dysfunctional policy lic. A situation has developed that allowsthat has, in implementation, strayed from narcotics supervisors to justifiablyits original intent. ... Forfeiture programs, choose between strategies that producewhile serving to generate income, prompt revenue and those that acknowledge thedrug enforcement to serve functions that demands of justice. Recent Supremeare inherently contradictory and often at Court decisions have done little to alterodds with the demands ofjustice." the present approach of forfeiture pro-

The undercover researcher observed grams.... These restrictions [arising fromagencies abandon investigations of sus- Austin v. U. S. and U. S. v. Buena Vista]pects they knew were trafficking large will not necessarily limit the scope andamounts of contraband simply because victimization and intrusion; they maythe case was not profitable. Agents rou- even worsen the present condition. Thetinely targeted low level dealers rather principle ofproportionality, for example,

November 1994 ·12· Prison Legal News

1993, PLN.] In July, 1993, DodgeCounty Court Judge Joseph Schultz or­dered the DOC and Badger State Indus­tries (the DOC tW1 industrial company) towrite an environmental clean up plan be­cause the prison at Waupoo had earlierbeen foood in violation ofstate hazardouswaste storage and disposal laws. Thecourt said the plan was needed "to avoidviolations of environmental laws" andgave the DOC a December 31, 1993,deadline by which to comply. The DOCignored the deadline. David Whitcomb,

. chief legal cOOOSel for the DOC, statedthat no one had been assigned to do thejob. He claimed a breakdown in commu­nications, but this time did not blame it onprisoners.

The environmental problems at Wau­poo are related to improperly stored anddisposed ofchemical solvents, used at theprison's license plate, furniture and signproduction facilities, which have con­taminated the groood water beneath theprison. Since 1990 the DOC has spent$309,280 to remove six leaking hazard­ous waste storage tanks and study theextent of groood water contamination atthe prison.

Dave Edwards, a DNR hazardouswaste specialist, said that chemical wasteleaking from the prison may be responsi­ble for contaminating Waupoo's munici­pal wells. He said that mooicipal wellscould still be used for drinking becausethe solvent concentrations are very low.However, he said that at the Waupooprison, solvent levels in monitoring wellsfar exceed safe levels. The DNR's con­cern doesn't appear to be that prisoners atWaupoo have safe drinking water butonly to avoid further contamination ofthemooicipal wells.

Judge Schultz ordered the DOC to de­termine whether there is hazardous wastecontamination at any of its other 31 pris­ons, farms and smaller facilities. Eachfacility was asked to complete a question­naire detailing what it did with its hazard­ous waste. Degan and other DNR inves­tigators have expressed doubts about theDOC's ability to police itself, based on itspast performance.

At least one Waupoo prisoner, VancesSmith, has filed suit over the prison'swater contamination due to the largenumbers of prisoners becoming ill orshowing other symptoms of chemicalpoisoning. Despite newspaper articles re­lating the above facts, the prison officialdefendants denied that anything was

Hazardous WasteFound in WI Prison

Since 1993 the Wisconsin Depart­ment of Corrections has been the subjectof several scathing investigations by thatstate's Department of Natural Resources(DNR). The investigations have madeseveral alarming discoveries, concludingthat the DOC is failing to keep track ofand properly dispose ofhazardous indus­trial and agricultural waste.

An oo1icensed dump at the Oregonprison farm, south of Madison, was dis­covered in the aftermath ofa Jooe, 1993,tornado that swept through the area.When DNR staff investigated they dis­covered pesticides, paint, tires, barrelscontaining unidentified liquid waste,empty fuel oil tanks and other refuse,according to Mike Degan, DNR hazard­ous waste ooit leader for that district. TheDOC, when questioned about the dump,said they were not aware of the dump siteand blamed it on prisoners. [See: Dec.

DOJ Releases ADAAdvisory Report

Prison officials claimed that the tennis barriers and commooications. The ADAcourts were expensive to maintain and does not require prisons to retrofit all·could be converted to more useful space. existing facilities to a new ADA standard.However, most ofthe "tennis courts" are What it does require is a prison operatesimply nets and stripes on blacktop park- each service, program, or activity that iting lots or other ooused prison space. offers so that viewed in its entirety the

In a letter to prison director Michael service, program or activity is readily ac-Sullivan, Governor Thompson ordered cessible to and usable by, disabled indi-the prison boss to convene a task force" to viduals. This standard, known as "pro-increase employment for prisoners, to gram access," applies to all new con-link prisoner jobs to jobs in the commu- struction and alterations to existing struc-nity after release and to recommend· tures: The reportiists aliernative meansofchanges in laws that inhibit these ef- ensuring program access. Prisons mustforts." Thompson, who has gained na-·· ensure that its commooications with thetional publicity for his aggressive attacks disabled (i.e. sight or hearing impaired)on welfare recipients, said "there is no are as effective as those with the non-dis-free lOOCh in Wisconsin prisons" and that abled. This may include sign languageit was time to cut prisoner idleness and interpreters, qualified readers, etc. Theexpand their workload. report emphasizes the need for prison ad­

ministrators to develop written policiesaddressing these matters before the needfor them actually arises.

The report contains many commonlyasked questions about the ADA and howto ensure its compliance. The report notesthat the ADA also applies to prison em­ployees, attorneys, clergy and visitors tothe prison (i.e. family members) who mayhave a disability. Anyone interested inthis issue should ask for a free copy from:US Department of Justice, Office of Jus­tice Programs, National Institute of Jus­tice, Washington D.C. 20531.

In 1990, Congress passed the Ameri­cans with Disabilities Act (ADA), 42U.S.C. § 12131-12134, which prohibitsdiscrimination against the disabled bystate and local government entities. TheADA applies to criminal justice agencies,including prisons and jails. The Depart­ment of Justice (DOl) is one of eightfederal agencies charged with enforcingthe ADA and has issued its report: TheAmericans With Disabilities Act andCriminalJustice: ProvidingInmate Serv­ices, which gives an excellent, compre­hensive overview of what accommoda­tions to the disabled must be provided bystate agencies. The ADA allows citizensto privately sue agencies for money dam­ages and injooctive relief in order to en­sure compliance with the ADA. As PLNhas reported in the past, this private rightofaction applies to prisoners and jail de­tainees as well. See: Noland v. Wheatley,835 F. Supp. 476 (NO IN 1993).

The DOJ report gives a legal overviewof the ADA's requirements as applied toprison programs and advice aimedmainly at prison administrators on how tocomply with the ADA and thus avoidviolating its provisions. This includesidentifying prisoners with disabilitiesduring intake classification and ensuringthat an evaluation of existing prison pro­grams is made, then modified to complywith the ADA.

The main areas covered are develop­ing policies and procedures, architectural

Prison Legal News ·13· November 1994

MI Parole ConsentDecree Vacated

- -Cooling-TowersSpread Legionnaire's

In 1977 Michigan state prisoners fileda class action suit challenging the proce­dures by which they were granted or de­nied parole. In 1981 the US district courtin Michigan entered a consent decree set-

prisoners at least 50 square feet of livingspace.

The report concluded that the outbreakwas caused by overcrowding, poor aircirculation and the susceptibility of theprisoners to actually being infected by thebacteria due to health problems caused byAIDS and drug abuse. "My gut feeling isthe thing that played the greatest role wasovercrowding, but it was a combinationofall three," said Dr. Breiman.

Harris county has opened a new jailsince the outbreak occurred. The old jail,where the outbreak occurred, now holds3,750 prisoners. A new ventilation systemhas been designed but not installed yet.

Overcrowding Leadsto Pneumonia

and more likely to be attacked by some­one they knew while at work.

Flynn suggested the hiring of moreinternal police and greater "security"forces. It seems obvious that the" causes"ofworkplace violence by workers are dueto increased exploitation (1. .e. increase ofhours worked per year coupled with adecrease in pay), lack of job securitycaused by massive downsizing and shift­ing ofjobs to third world countries, workspeed ups, etc. No conferences are beingheld to discuss employers that kill theirworkers with toxic chemicals and unsafeworkplaces, that dump hazardous wastesinto communities, market unsafe prod­ucts, and otherwise commit murder in amanner less dramatic than gunfire.

Killer Workplace

The Federal Centers for DiseaseControl (CDC) has issued a report stating

Othat cooling tow-ers holding contaminated

n September 8, 1994, the New Eng- community water can leadto serious out-land Journal ofMedicine published the breaks of Legionnaire's disease, a pneu-

On June 15, 1994, a conference on report of an investigation conducted bymonia like illness that canae-fataL Theworkplace violence was held at Boeing's the U. S. Centers for Disease Control and bacteria causing the disease are spread byRenton campus near Seattle, WA. The Prevention into the outbreak of a deadly water or air conditioning systems. Moretopic was growing workplace violence,. form of pneumonia in the Harris County than 1,000 cases a year are reported to thedefined as workers striking out rather (Houston) jail in Texas in 1989. The out- CDC but health officials say most casesthan companies maiming, poisoning, ex- break was caused by a bacteria known as are not diagnosed and that about 25,000ploiting workers and the community. Ac- streptococcus pneumoniae which causes people a year fall ill from it.cording to Dr. Kevin Flynn, a consultant pneumonia or more serious blood infec- One outbreak in a Michigan stateto Fortune 500 companies, homicide is tions. This outbreak was the first in what prison earlier this year affected 17 people,the No. 1 cause ofdeath in work force for has become a series of pneumonia infec- killing one. Investigating that case andwomen and the No.3 cause for men. He tions in crowded places, including pris- several others in civilian communities,said it accounts for 12 percent ofall work ons, jails, military bases, day care centers health officials concluded that coolingrelated deaths and 42 percent of female and nursing homes. towers were the source of the contamina-deaths on the job. In 1993, 110,000 inci- Dr. Robert Breiman, whose team in- . tion. Cooling towers had been previouslydents of workplace violence were re- vestigated the Harris County jail out- identified as possible transmission routesported in the US. An estimated 750 peo- break, said "We think this was a sentinel but this is the first time they were identi-pIe were killed in the workplace, accord- in the reemergence of that disease." The fied with actual outbreaks ofLegionnaire'sing to Flynn. study concluded that the bacteria was fos- disease. The CDC is now developing

Six weeks later the Justice Department tered by the cramped, airless conditions guidelines for the prevention of Legion-issued a report on this topic that differs tbatgaveeach jail prisoners less than 34 naire'sdisease,includingimprovedmain-from Flynn's numbers. On July 25, 1994, square feet ofliving space. The 13 story tenance of cooling towers. Many prisons,the Department of Justice's statitistics jail was designed to hold 3,500 prisoners especially those in rural areas, are suppliedbureau issued its first ever report on "vio- but at the time ofthe outbreak held 6,700, by water cooling towers.lence" in the workplace (not that done by with half sleeping on the floor on mat-employers of course). According to the tresses. The outbreak affected 46 prison-report, almost 1 million violent crimes ers in one month, killing two. Investiga-occur in the workplace each year. Ten tors discovered that no prisoners withpercent of such crimes involve offenders more than 80 square feet of living spacearmed with handguns. Based on national were affected. They also discovered thathousehold surveys the report found that the jail ventilation system delivered 6 cu-men are more likely to be the victims of bie feet ofoutside air per person per min-violent crime at work and more likely to ute. The recommended level is 20 cubicbe attacked by a stranger. While women feet per person per minute. Likewise, cur-were as likely as men to victims of theft rent engineering standards suggest giving

wrong with the prison's water supply.(They did admit that the prison's cellwayswere lined with asbestos but claimed itwas in good repair and did not pose ahealth hazard. Smith notes that the onlyreason he became aware of the asbestoswas because he could see it hanging offthe pipes.) In discovery Smith learnedthat the DNR had sued the DOC over theillegal dumping. He obtained a copy ofastipulation agreement between the DNRand the DOC whereby the DOC admittedthe facts of the complain; agreed to pay$55,000 and agreed to clean up the wasteand ground water. The stipulated agree­ment lists the varioUs chemical solventsthe water is contaminated with and theamounts in which the chemicals are pre­sent. Smith's litigation is still in court.

Hazardous Waste (cont)

November 1994 -14- Prison Legal News

tling a lawsuitbetween the Michigan stateParole Board and Michigan state prison­ers. The decree required the state to fol­low detailed procedures for the conductof parole hearings and rehearings, topublish parole board rules, establishand follow parole rules, allow prisoneraccess to parole files and to staffparoleunits. After entering into the decree thestate never fully complied with its con­tents and repeatedly motioned the dis­trict court to vacate the consent decree.The district court refused to do so andentered an injunction ordering the defen­dants to comply with the decree and alsoappointed an independent monitor to en­sure compliance. The parole board ap­pealed the rulings. After seventeen yearsoflitigation and several trips through thecourts the sixth circuit court of appeals,en bane, reversed and remanded the caseto the lower court with instructions todissolve the decree.

In its ruling the appeals court gives abriefanalysis of the standard ofreview tobe applied in reviewing and modifyingconsent decrees entered into between liti­gants. Consent decrees are contracts en­tered into between the parties which are,in theory at least, judicially enforceable.In Rufo v. Inmates ofSuffolk County Jail,112 S. Ct. 748 (1992), the Supreme courtset out the doctrine for modifying consentdecrees which allows modification ifthere has been a substantial change inconditions or applicable law since thedecree was entered

Using this analysis the court con­cluded that prison rules governing paroledo not create a federal due process libertyinterest "and that in the present case thelegal theory and analysis upon which theconsent decree was formulated was erro­neous." Thus, while the Michigan paroleboard might be required to follow theirown rules as a matter of state law, therewas no basis to make them follow theirown rules as a matter of federal law.

The prisoners argued that by vacat­ing the decree at this point they wouldbe prejudiced because in agreeing to thedecree they had abandoned severalclaims raised in the initial decree. Thecourt rejected this argument because"No basis in federal law exists for theinjunctive relief imposed in this case.That Michigan parole authorities 'arbi­trarily' failed to follow their own stateprocedural standards could constitute aviolation of state law but not federallaw." "Here, decisional law has

changed so that the enjoined behavior, which once might have been a violationof federal law, is no longer a matter of federal law at all." See: Sweeton v. Brown,27 F.3d 1162 (5th Cir. 1994) (en bane).

Lawyers Deny Inmate Discovery PendingMotion to Dismiss in Federal Court

byAllan Parmelee

In all the lawsuits brought by federal sive), and are not fmal determininationsprisoners against prison staff, the U.S. under 28 U.S.C. § 1291. Indeed, nothingAttorney who defends them will usually in the Rules or in the statutes provides forfile a Motion to Dismiss or in the Alter- any appeal of discovery orders. As withnative for Summary Judgement in favor most rules, there are exceptions. If anof the defendants. Plaintiffs should re- Order ofthe district court fits the follow-spond quickly and fmnly requesting the ing criteria, an appeal may be allowed: a)court to review the matter or appeal. The order has a substantial impact on an

A prisoner files his complaint, then outcome of the merits of the litigation. b)attempts discovery proceedings. The The order may cause a party to suffergovernment then files their response, and substantial prejudice or irrevocable in-a motion to dismiss. If you pursue your jury, e.g., an order requiring a party todiscovery proceedings, they will file a reveal what they observed, before theymotion to stay discovery waiting for the forget, moves away, leave the country orjudge to rule on their motion to dismiss. reveal protected exempt secrets. See Ap-

The usual defense by the government pealability ofOrder Pertaining to Pretrialsays; 1. Plaintiffhas failed to state a claim Examination, Discovery, Interrogatories,for violation of his constitutional rights. Production of Books and Papers, or the2. The defendants are entitled to qualified Like, 37 A.L.R. 2d 586 (1954).immunity. 3. In the alternative, the defen- The courts direction you should keepdants are entitled to summary judgement in mind in all litigation is APPEAL andbecause there are no disputed issues of PURPOSE. A final decision on whichmaterial fact and they are entitled to a federal appellate jurisdiction dependsjudgement as a matter of law. 4. Plain- generally is one that ends litigation on thetiff has failed to state a claim for which merits and leaves nothing for the court torelief can be granted. do but execute the judgemenT See: Fire-

Of course, this is a boilerplate re- stone Tire & Rubber Co v Livesay, 449sponseandyoushouldexpectthemtotry US 368, 101 Sct 669, 66 LE2d 571to avoid responding to your discovery (1981); Cooper & LybrandvLivesay, 437request. But they do it under what they US 463, 98 S. Ct. 2454, 57 LE2d 351call "protection ofgovernment cover." (1978); Catlin v. United States, 324 US

Federal Rules ofCivil Procedure, Rule 229,65 Sct 631,89 LE 911 (1945).26(c), allows for this often abused proce- There two principal avenues for andure. appeal but both are rarely granted: 1. Pe-

Although the discovery process con- tition for writ ofmandamus or prohibitiontemplates minimal judicial intervention, 2. A certification under 28 U.S.C. §there are many instances where judicial 1292(b) by the trial judge that the orderintervention is sought and obtained, involves a controlling question of lawwhether for protective orders under Rule about which there is substantial ground26(c), to compel discovery under Rules for difference of opinion and that an im-37(d) and 45, or to compel answers to mediate appeal from the order may mate-questions under Rule 37. In addition, theriaUyadvance the ultimate termination ofcourt may enter orders governing discov- litigation. See also: Annotation, Ap-ery under the Rule 26(f) discovery plan pealability of Discovery Orders as "Fi-procedure. Ifa discovery order is issued nal" Decisions under 28 V.S.c. § 1291.,by the court, this risks irreparable injury 36 A.L.R. Fed. 763 (1978). In addition,to your case. What is your remedy? some orders are deemed final for appeal

As a general proposition, discovery because they did not affect the ongoingorders are not appealable; most discovery litigation, e.g., an award of fees underorders are interlocutory (not fmally deci- Rule 37(b)(2).

Prison Legal News -15- November 1994

No Immunity forBeating

Thomas Munz was an Iowa stateprisoner called to testify in federal court.Munz was taken to the court by federalmarshals. En route to the court, whilebound hand and foot, Munz became vio­lent and vandalized the interior of themarshal's car. When Munz and his escortarrived at the Linn County jail, where hewould be held pending his testimony incourt, he was passive and cooperativewith the marshals. Munz claimed that hewas pulled out of the car, slammedagainst a wall, taken to a padded cellwhere marshals and jailers proceeded tobeat, kick and stomp him. Throughout thebeating Munz was handcuffied, with legrestraints and a belly chain. Munz filedsuit claiming that the beating violated hiseighth amendment right to remain free ofcruel and unusual punishment.

The marshals sought summary judg­ment on various grounds, which the dis­trict court denied. The court specificallyheld that the marshals were not entitled toqualified immunity because a reasonableMarshall would have known that beatinga bound prisoner in a cell was neitherreasonable nor lawful. The defendantsappealed the lower court denial of theirsummary judgment motion and the courtof appeals for the eighth circuit deniedtheir appeal.

The first question the court resolvedwas whether Munz was a prisoner or adetainee for purposes of what constitu­tional standard applied to his claims. (Theeighth amendment applies only to con­victed prisoners. The fourth amendmentprohibits unreasonable uses of forceagainst detainees not convicted of anycrimes. While similar standards, de­tainees receive greater constitutional pro­tection.) The court concluded Munz wasa prisoner protected by the eighth amend­ment because only his location, not hisstatus had changed.

The defendants denied beating Munzand argued that his claims of a violentbeating were implausible in light of un­contradicted medical testimony that, atmost, he suffered rib contusions. Thecourt held that, in his verified complaint,Munz has produced sufficient evidence tocreate genuine issue ofmaterial fact, pre­cluding summary judgment. Applyingthe core judicial inquiry from Hudson v.

November 1994

McMillian, 1 12 S. Ct. 995 (1992), of theneed for the application offorce, the rela­tionship between the need and the amountof force used and the extent of the injuryinflicted, the court held Munz had pro­duced sufficient evidence allowing a juryto find in his favor at trial. A jury couldconclude that beating a handcuffed pris­oner on the floor ofa padded cell was the"sadistic and malicious" application or-­force designed to harm rather than ad­vance any legitimate penological goal.

The court gave a briefoverview of theapplicable law governing beatings ofprisoners, and held that prisoners have aclearly established right to be free fromcruel andunusual punishment. Moreover,Munz's claims fell squarely within thatprohibition so that if he prevailed at trialthe marshals would not be immune frommoney damages. See: Munz v. Michael,28 F.3d 795 (8th Cir. 1994).

WA Digital ProbeSuits Barred

In 1984 the Washington state DOCopened two control units and initiated apolicy whereby all prisoners transferred·to the Intensive Management Units(IMU) were subjected to a digital rectalprobe, or digital rape, upon entry. The"searches" were conducted on a blanketbasis with no individual suspicion beingrequired. Thousands of such" searches"were conducted and no contraband wasrecovered. After extensive litigation thepractice was found unconstitutional, see:Wetmore v. Gardner, 735 F. Supp 974(ED WA 1990), but on appeal the defen­dants were awarded qualified immunityfrom personal liability and thus no dam­ages were awarded, see: Hemphill v.Kincheloe, 987 F.2d 589 (9th Cir. 1993).The ruling in Hemphill affected the dam­age claims ofmore than 100 Washingtonprisoners who had been subjected to the"searches" and who filed suit seekingmoney damages. Their claims were allconsolidated into Hemphill for the pur­poses of addressing the qualified immu­nity question.

David Castillo, a Washington stateprisoner, filed suit seeking only moneydamages for a digital rectal search con­ducted pursuant to the unconstitutionalblanket search policy. The district courtgranted summaryjudgment to defendantsLarry Kincheloe, the former prison war-

.16-

den, and Booth Gardner, the former gov­ernor, on collateral estoppel grounds. Thecourt held that the ruling in Hemphillapplies to all suits seeking damages for"searches" conducted under the since de­funct and unconstitutional search policy.(This ruling does not apply to any cavitysearches conducted since then.) Thus,even though Castillo was not a plaintiffinHemPhill because the issue of qiialifiedimmunity had already been decided infavor ofthe defendants he could not over­come that ruling. It is interesting to notethat the Washington attorney general'soffice is still arguing that the blanketsearch policy is constitutional, despite ajury finding to the contrary and that find­ing being upheld by the ninth circuit. See:Castillo v. Gardner, 854 F. Supp 725 (EDWA 1994).

Santeros Win PI

Santeria is a religion which com­bines aspects ofCatholicism and Africananimism. Believers worship saints, ororishas, who have their own personalitiesand characteristics. Santeria is widelypracticed in Caribbean and Latin Ameri­can countries. In Church of the LukumiBabah Aye, Inc. v. City ofHialeah, 113 S.Ct. 2217(1993), the supreme court dis­cussed Santeria and its entitlement to con­stitutional protection. One of the require­ments of Santeria is that its adherentswear colored beads with the colors oftheir patron Orisha as well as coloredbeads for the Orisha of specific days.

On January 4,1994, the New York De­partment of Corrections (DOC) promul­gated directive 4202 which allowed San­tero prisoners to own but not wear beads.The OOC claimed that the policy wasnecessary to prevent the use of beads bygangs in the prison system. Two prisonersfiled suit claiming that the directive vio­lated their rights to religious freedom andexpression. The district· court appointedcounsel and granted the plaintiffs motionfor a Preliminary Injunction (PI) prevent­ing the DOC from forcing compliancewith its directive. The court's well rea­soned opinion will be useful to anyonelitigating a religious freedom claim.

In granting the PI the court held thatthe prisoners' religious beliefs were sin­cerely held and noted the importance ofwearing beads to adherents of Santeria.The plaintiffs had set forth sufficient al­legations to show irreparable harm if the

Prison Legal News

partner, colleague, friend and when nec­essary Martin's personal defender whenthe Federal Bureau of Prisons took stepsto take away his First Amendment Right.

In his editorials, Martin describes hisexperiences with the swelling prisonpopulation in this COWltry. He talks aboutracism, inadequate health care, petty bu­reaucratic harassment, convict sex, thegood and bad side of prison guards andthe dissapearing folkways ofthe convict.

Martin shares his sometimes sad andsometimes humorous stories of the vastarray ofWlique characters he meets alongthe way. One case in particular, Martinwrites about Kevin Sherbondy, a yOWlgman of twenty-three, who was sentencedto 15 years in federal prison Wlder theCareer Criminal Statute for "possession"of a firearm. Sherbondy owned the gunsoley for decorative purposes. Martin's st0­ries about Sherbondy in Sussman's weeklycolumn, "SWlday Pooch" brought so muchattention to Sherbondy's case that the NinthCircuit court ofappeals overturned his sen­tence, and Sherbondy became a free man.

Meanwhile, Sussman tells his side ofthe story as he and a team oflegal expertscome to Martin's defense. At issue hereare the rights of prisoners to expressthemselves freely and publicly and a con­troversy which received substained na­tional attention, including coverage onABC's Nightline.

Committing Journalism explores theFederal Prison system in explicit detail.Martin and Sussman send a clear messagethat it is essential that all outsiders knowwhat goes on behind the walls of ournation's prisons.

Martin is not hypocritical. He admitsthat prison is meant to be for some, aswith himselfback in 1980. However, at afar fewer rate than we are warehousingprisoners today. He writes: "Sowing pris­ons means reaping convicts. It's anotherform ofdeficit spending. Ifthe authoritiescan't control drugs with existing prisons,I wonder why they say that building morewill help solve the drug problem. That'slike saying that building more hospitalswill stop disease."

For me, Committing Journalism hasbrought back vivid memories, as I toohave served time behind the gray walls

By Dannie M. Martin & Peter Y. SussmanReview by BillJeffcott

"I committed bank robbery and theyput me in prison, and that was right. ThenI committed journalism and they put mein the hole. And that was wrong." This isthe opening statement in Dannie M. Mar­tin's first book, Committing Journalism.Joining him in his effort is Peter Y. Suss­man, a long time editor of the San Fran­cisco Chronicle's "SWlday Pooch" sec­tion.

Dannie Martin, also known as "RedHog" throughout the prison system forhis red hair and long past dispute over apork chop, was serving a 33 year sentenceat the United States Federal Penitentiaryin Lompoc, California. And during thiscourse of time, Sussman published acompelling report on AIDS in the federalprison system written by Martin. Andwith a powerful public response, this be­hind the walls prison journalist and freeworld newspaper editor, teamed up andwent on to publish over fifty editoralsover the next several years.

Martin, a self educated man, is wellknown for his alcohol/drug abuse trou­bles and his fighting abilities in hisYOWlger years. And in his book, he takesyou down the road of hard knocks for avariety of offenses which has cost himseveral years oflife behind prison walls.

However, in 1976 Martin's socialworker Diane Osland, the daughter of ajournalist, pressed Martin to fill his lifelong desire to write. It was from this pointon, that the seed was planted.

Osland describes "Red Hog" as apowerful person in the prison system."He took no shit from anyone, but heexercised his power without being abu­sive. In fact, he was the protector of theweakest, the frightened-yoWlger, and thefrail older cons. He treated people withdignity, and not out offear."

In the 80's, Martin's life began tocome together. His heroin addiction hadsubsided, he established important ties inthe commWlity and his crafted skill as ajournalisthad began to be put to good use.

What follows is a two-fold story. Oneof Martin and how he veiws life frombehind prison walls and razor wire andhow his editorials affected the public.One of Sussman, who became, Martin's

Committing Journalism • The Prison Writingsof Red Hog

injWlction were not granted as well as alikelihood of success on the merits. Thecourt noted that in testimony the DOCdefendants admitted they had done noresearch nor considered what impact theirdirective might have on Santeria practi­tioners. The court analyzed the prisoners'claims Wlder the Religious Freedom Res­toration Act (RFRA) which providesgreater protection to prisoners seeking topractice their religions [See June, 1994,PLNj, and held that the DOC had notshown any compelling interest in banningprisoners from wearing Santeria beadsWlder their clothing. The court describedthe DOC's" security" concerns as"speculative," at best.

Ofparticular concern to the court wasthe fact that "traditional" religions suchas Christianity, received preferentialtreatment Wlder the directive while non­traditional religions, such as Islam andSanteria, received more scrutiny fromprison officials. The court noted thatprison officials had completely failed intheir burden of presenting any evidencethat gangs even used or had ever at­tempted to use Santeria beads in an illicitmanner. "Defendants' further concernthat some currently non-existent inmategroup may in the future form and adoptcolors, or that existing gangs may changecolors, to coincide with the colors ofplaintiff's Santeria beads, and thenchoose to wear them Wlder their clothingwithout public display, is nothing lessthan 'pure speculation,' which, as I havealready stated, cannot and should not bethe basis for burdening plaintiff's consti­tutional rights." Because of these defi­ciencies the court held that the directivewas Wllikely to withstand scrutiny Wlderthe 0 'Lone v. Estate ofShabazz, 482 US342,107 S.Ct. 2400 (1987), standardwhich is substantially more deferential toprison officials than the RFRA standard.

Of interest to Santeria practitioners isthe fact that the DOC agreed, after thelitigation had commenced, to allow San­tero prisoners to maintain shrines in theircells as long as the shrines were not vis­ible to passersby and not made ofcementor bricks. Practitioners of Santeria tradi­tionally maintain a shrine at which theypray and make offerings to their orishas.Readers should note that this case is not adecision on the merits but only an orderregarding a motion for a preliminary in­jWlction. See: Campos~ Coughlin, 854F. Supp. 194 (SD NY 1994).

Prison Legal News -17- November 1994

and razor wire during my one hundredmonth tour with the Federal Bureau ofprisons. I can relate to most all of"RedHogs" writings. I have lived, learned andseen these experiences myselfand I'm verywell aware that there are many problemsthat exist within our country's prison sys­temtoday. Ihighly recommendthe writingsof"Red Hog" for anyone who is unfortu­nate enough to be incarcerated. It's not onlya "must read," but, I'm sure you'll find itbeneficial and educational as well, regard­less ofwhere youmaybe serving yourtime.

To those of you out there in our "freesociety," there's not a shadow ofa doubtyou won't be finding Committing Jour­nalism to be a dramatic read as Martinand Sussman take you through our com­plexic criminal justice system. This is afirst-class description oflife behind bars,media censorship, the prisoner, hiskeeper and to all that live, work and diein our nation's prisons.

The London Hanged:Crime and Civil Society in the

Eighteenth Centuryby Peter Linebaugh

(Cambridge University Press, 1992)Review by Sandy Judd

A title like The London Hangedmight make a person think this is anotherbook about death-an 18th century ver­sion ofthose true crime books about peo­ple like Ted Bundy-but it isn't. Instead,it's about the struggle to survive. AuthorPeter Linebaugh is a social historian whohas taught at such institutions as the Fed­eral Penitentiary in Marion Illinois andHarvard University, giving him both theacademic and the real-life credentials towrite authoritatively about a struggle tosurvive that took place two centuries ago.

The book opens with the story ofJackSheppard, a carpenter turned burglar whowas famous for his ability to escape fromprison. A folk hero hated by the ruling classfor his attitude, Sheppard embodied Line­baugh's definition ofidleness: "the refusalofdiscipline, subordination or obedience."After being sentenced to die, he received avisit by aprison official interested in savinghis soul. Sheppard replied, "One file'sworth all the Bibles in the world."

Linebaugh's main theme is that mostofthe people who were hanged in Londonduring this period were executed for try­ing to support themselves or their fami­lies. A trend that comes up time and again

November 1994

is the attempt by employers to take awaythe customary benefits that the workerscounted on to survive. For instance, it wastraditional for tailors to keep leftoverscraps of fabric in order to piece togetherhats or children's clothes to sell at theopen market. Employers who couldn'tstop the practice themselves had the gov­ernment make it illegal, and a bunch oftailors ended up on the 18th century ver­sion ofdeath row.

Then, as now, "crime" was defined bythe wealthy. Although today's workingclass is woefully unaware of this fact andunconcerned that the only people whoever get executed are poor, the workingclass ofthe 18th century wasn't nearly sogung-ho on capital punishment. For ex­ample, a judicial official named Wilmotwas responsible for the condemnation ofthree men blamed for the beating death ofa witness in a previous political trial. Wil­mot barely escaped the wrath of thecrowd at the men's public execution. AsLinebaugh points out, public executionshad long since ceased to terrorize theLondon masses.

There's a lesson here somewhere, butlike most modern historians, Linebaugh re­fuses to point it out. Granted, the book isalready 484 pages long, and not a sentencecould be cut without losing either some­thing essential or something entertaining,butmany people who read itwill walkawayknowing more about capital punishment in18th century London than they do aboutcapital punishment in 20th century Amer­ica. With any luck, however, the multitudeof striking, and often humorous, details inthis story about the past will stimulate us tomore closely examine the present.

Scared Witless

The fear in her voice reverberatedthroughout talk-radio land. The elderlywoman was among a parade of callerswho passionately supported the caning of .18-year-old Michael Fay, who'd pledguilty to vandalism in Singapore. Whenthe host asked why such a brutal punish­ment was appropriate, she replied thatsomething, anything, had to be done tostop the epidemic of crime. She went onto say that she was unable to walk to hercar right in front ofher house without fearof attack. Noting that the caller lived inFoxborough, a reasonably bucolic suburbofBoston, the host asked ifshe or anyoneshe knew had been a victim of crime or

·18·

even an attempted crime in the past fiveyears. "No." "Well, then how do youknow it's so dangerous out there?" "Be­cause they say it is." "Who are they?""The people on television."

In January of this year, GeorgeGerbner, who has been studying the so­cial impact of television for decades, re­leased a draft report on TV violence thatcomes the closest to connecting cause andeffect. Dividing subjects into light view­ers (under two hours of television view­ing daily), medium viewers (two to fourhours daily), and heavy viewers (morethan four hours daily), he concluded:

" [H]eavy viewers are more likely thancomparable groups of light viewers tooverestimate one's chances of involve­ment in violence; to believe that one'sneighborhood is unsafe; to state that fearofcrime is a very serious problem; and toassume that crime is rising, regardless ofthe facts ofthe case.... Other results showthat heavy viewers are also more likely tohave bought new locks, watchdogs andguns for protection." The simple facts arethese. Serious crime is not skyrocketingin this country. It is leveling off and, bysome measures, even on its way down.But fear of crime - the obsessive, para­lytic fear of being a victim - is at a feverpitch. According to Washington-basedpollster, Peter Hart, 13 percent of thepublic fingered crime as the nation'snumber-one issue in January 1993. Todaythat statistic is 43 percent. A dispassion­ate look at the facts suggests we are notengulfed in an unprecedented wave ofcriminality. As University of Texascriminologist, Mark Warr noted, "Crimeis not going up.... Violent crime, espe­cially, has been essentially flat for a dec­ade." Moreover, the nation's murder ratewas frequently higher in the 1970s, a dec­ade in which we were not nearly as con­sumed by fear of crime. People get theirperceptions of the risk of crime from tele­vision. According to the New York-basedI¥ndaILReport, the.L,506.minutes..of air­time devoted to crime on the three majornetworks' nightly newscasts made it thethird-hottest topic last year. More signifi­cant, those 1,506 minutes represent morethan a doubling of the time allotted to theissue as recently as 1990, and nearly a300-minute increase over 1992. Using adifferent methodology, the Washington­based Center for Media and Public Affairsreported that the number of crime-relatedstories on the network newscasts in 1993more than doubled from the previous year,

Prison Legal News

Crisis Continues inSalvadoran Prison

System

As reported in the October, 1994,issue of PLN, the prison system of ElSalvador remains locked in a crisis ofovercrowding, spiraling violence and un­rest. This trend continues. On September13, 1994, prisoners at the Central Peniten­tiary in San Vicente, in the central part ofthe country, rioted, leaving 17 injured andthree dead. The dead prisoners were ac­cused of stealing from their fellow pris­oners, a group ofhooded prisoners cut thehands off of two prisoners before killingthem, a third was decapitated. Police saidthe bodies also showed burn marks.

In a separate riot, the same day, at theSan Miguel prison, 300 prisoners rioted,injuring at least 16 people. The riot wassparked by the transfer of 13 prisoners,classified as "highly dangerous" by thegovernment, to other prisons. At least onepoliceman was injured after some 50 riotpolice entered the prison to suppress theriot and disarm prisoners. Firemen put outfires started by prisoners protesting poorliving conditions.

Prison riots in El Salvador, generallysparked by bad conditions, have claimedthe lives of63 people since the end of 1993and injured more than 85. The country's 14prisons have a capacity of3,500 but at lastcount held more than 6,250 prisoners.

Asian Prison News

rently 55,365 women imprisoned in the called on foreign governments to bar citi-U.S., 5.8% of all persons imprisoned. zens from traveling to China to obtain

The incarceration rate for black males organ transplants. The report states" Chi-is 2,678 (per 100,000 residents), for white nese doctors participate in pre executionmales it is 372. For black females it is 143, ... - medicatte~,-matching the donors withfor white females it is 20. Biacks are .. recipients- and surgeons are commonlyseven times as likely as whites to be im- present at execution grounds to performprisoned. Blackmales between the ages on site removal ofvital organs."of25 and 29 are imprisoned at the rate of The transplant program was started in6,301 per 100,000. Since 1980 the incar- the 1960's and includes the harvest ofliv-ceration rate for white males has in- ers, hearts, lungs, kidneys and corneas. Increased by 121%, for black males, 141 %. some cases, kidneys are removed from pris-

Persons interested in obtaining a free oners prior to executing them. One surgeoncopy of the BJS Bulletin can do so by was quoted as saying that atleast 90 percentwriting the Bureau of Justice Statistics ofChina's transplanted kidneys come fromClearinghouse, PO Box 179, Annapolis executed prisoners, including some trans-Junction, MD 20701-0179 and request- planted to foreigners fora $30,000 fee. Theing a copy of Bureau of Justice Statistics report states that unless families agree toBulletin, Prisoners in 1993. organ harvesting, government officials

threaten to bill them for the prisoner's up­keep injail, cost ofthe executioner's bulletand cremation. China conducts between2,000 to 3,000 executions a year.A Prison a Week Indonesia: The warden at the

Kedungpane prison in Semrang an­nounced that new good time releases

According to the BureauofJustice would be offered to prisoners who do-Statistics Bulletin, Prisoners in 1993, the nated blood and organs. Each blood do-nationwide 7.4% growth rate of state and nation by a prisoner would result in a sixfederal prison populations in 1993 trans- ······monthtimer.eduction per year. Donationlates to 1,254 additional prisoners each of an organ would bring an immediateweek. This rate of growth can only be time cut of six months. The wardensupported by building one 1,254 bed claimed the program is voluntary and notprison somewhere in the United States open to prisoners serving life times.every week. Prison populations reached a Thailand: Thai prisons are faced withrecordhighof948,881 in 1993. Thatnum- an AIDS crisis according to prison doc-ber is presumably well over one million by tors. Thailand holds almost 100,000 pris-now. State and federal prison populations oners in 108 prisons across the countryhave grown at an average rate of 8.3% per with hundreds of seriously ill prisonersyear since 1980 when the prison population overburdening the prison system medicalstood at 329, 821. The prison population facilities. An average of one prisoner ahas risen 187.7% since 1980. day dies ofAIDS according to Chon Ler-

California imprisons the largest num- witvorapong, a prison doctor in Bangkok.ber(119, 951) followed in order by Texas Chon said the AIDS epidemic had(71,103), New York (64,569), Florida reached a crisis point with 400 prisoners(53,048) and (Ohio (40,641). The states suffering from AIDS in Klong Prem'swith the highest incarceration rates (prison- 320 bed hospital. The remaining AIDSers per 100,000 residents) are Texas (553), patients have to sleep on the floor. ThaiOklahoma (506), Louisiana (499), South health officials estimate that more thanCarolina (489), and Nevada (438). The 600,000 people in Thailand are infectedlargest population increases in 1993 were with AIDS/HIV. It is not known howreported by Connecticut (20.1%), Texas many prisoners are infected because(16.2%), Minnesota (15.5%), Mississippi prison officials cannot force prisoners to(15.2%), and Oklahoma (10.7%). In the take blood tests and lack the resources tofive year period ending in 1993, the states do so even if they so desired.with the largest increase in prison popula- China: Human Rights Watch/Asiations were Washington (79.1%), Texas has issued a report accusing the Chinese(75.8%), New Hampshire (74.2%), Con- government of using executed prisonersnecticut (71.0%) and Tennessee (65.9%). as that country's primary source of trans-

The fastestgrowing segmentofthe prison planted organs, in some cases deliber-population is female prisoners, whose popu- ately botching executions to allow doc-lation rose 9.6% in 1993. There are Cur- tors to harvest the organs. The group

a level of coverage completely out ofproportion with the crime rate. And thenumber of murder related stories tripled.The programmers are quick to say they'rejust telling it like it is, that it's a nastyworld out there and we'd better pay heed. .They are certainly succeeding in turningthe grandmother who caned into the radiotalk show - and millions like her - intovirtual shut-ins. And in doing so, they arepulling off a dangerous and cynical con.

The above is excerpted from an articleby Mark Jurkowitz in Media Culture Re­view, Vol. 3, No.3, a publication of theInstitute for Alternative Journalism. Thisis an excellent publication for those inter­ested in studying media issues. Send $18(or $36 for institutions) for a year's sub­scription of six issues to: Media CultureReview, 77 Federal Street, San Francisco,CA. 94107. (415) 284-1420.

Prison Legal News -19- November 1994