Legal NewsVOL.7 No.10ISSN 1075-7678

Working to Extend Democracy to All October 1996Price: $5.00

I n the July '96 issue of PLN wepublished "Furniture Manufac­

turers Threatened by UNICOR," anarticle about how Federal Prison Indus­tries, Inc. (FPI, which uses the tradename UNICOR), dramatically expandedits "market share" of furniture sold tothe military and government agenciesand how the expanded use of federalprisoner slave labor drives free-worldmanufacturers out of business.

UNICOR is at it again. This time,though, they have dramatically in­creased their "market share" in the saleof protective clothing (i.e. bullet-proof

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UNICOR Hogs Body Armor Marketby Dan Pens

vests and body armor) to law enforcement David E. Bernard, National Vice­agencies. UNICOR does not expand its President of the International Brother­market share through free-enterprise hood of Police Officers said in a memocompetition. They decide how much of to FPI officials that, "Soft body armor isthe market they want, some superficial extremely tricky to manufacture, and re­hearings are held, then FPI's five-mem- quires very stringent quality control..."ber Board of Directors grants the market and expressed a "fundamental philo­share request. Law enforcement agen- sophical problem with federal prisonerscies are then often forced to buy UNICOR manufacturing life support products forbody armor in order for FPI to maintain the community that incarcerated them inits target market share. the first place. This gives them the

President Clinton promised in a State opportunity to 'get back' at law enforce­ofthe Union address that"thosewhowork-ment bysabotaging these products."hard and play by the rules will be re- Marcia T. Rounsaville, a spokesper­warded." The way UNICOR unilaterally son for the Industrial Fabrics Associationdictates how much market share they will International, said that, "FPI seemshave - regardless of competition, price, oblivious to the fact that no one com­quality, or the purchasing preferences of pany in the private sector has more thanits law enforcement customers - is cer- a lO-percent market share in the produc­tainly not "playing fair." They are tion of protective clothing. However,rewarded nonetheless. under the [FPII staff's plan, the FPI

According to FPI spokesman Robert would be making bullet-proof vests,C. Grieser, "FPI started production of bomb disposal blankets, and the like toprotective clothing in 1993. FPI received the tune ofa 25-percent market share­several contracts that year; however, thus dwarfing those private sector em­much of the shipments were not made ployers on whom working women anduntil 1995. As a result, FPI's sales of men depend."protective clothing increased from Despite hearing voluminous nega­$371.000 in FY 1993 to an estimated $18 tive testimony from both apparelmillion in FY 1995." manufacturers and law enforcement. the

Prior to 1995, FPI was "authorized" FPI board formally decided on Februaryby its five-member board to capture 8 6, 1996, to grant the requested 25-per­percent of the protective clothing market. cent market share mandate forBy mid-l995 they already had 10 percent UNICOR-manufactured protective cloth­of the market. They then requested to ing. In its written decision, the FPI boardexpand their share to 25 percent. Hear- said, "The written and oral commentsings were held and voluminous testimony [of apparel manufacturers and law en­was presented by apparel manufacturers forcementl were helpful in developing aand law enforcement representatives. clearer picture of the industry and its

concerns."AIDS Status Disclosure

Family Law Assistance

5th Cir. Detainee Claims

News in Brief

A Matter of Fact

Pepper Spray Madness

Reviews

Looking Back on Attica

Mumia Abu-Jamal

Parolees' Jail Rights

Editorial

Texas Parole Rules

Unrest in S. American Prisons

Prison Legal News October 1996

UNICOR (Continued)PUBLISHERRollin Wright

EDITORSLegal: Paul Wright

News: Dan Pens

QUARTERLY COLUMNISTSJohn Midgley

Laura WhitehornMumia Abu Jamal

CALIFORNIA CORRESPONDENTWillie Wisley

CONTRIBUTING WRITERSAli Khalid Abdullah

Michael BrantDale Gardner

SubscriptionsIf you have not made a donation of

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....1\4a.rtinpoints out, "The likelihood some­one leaving prison will find a job in theapparel industry is slim." U.S. Bureau

What was clearer to FPI board mem- of Labor Statistics figures reveal thatbers, however, is that the federal prison employment in the apparel industry haspopulation is mushrooming and the fed- plummeted from a 1973 level oferal Bureau of Prisons requires more 1,438,000 U.S. workers to 910,000 inUNICOR production facilities to keep 1995. Recent U.S. Census figures re­those idle hands busy. Therefore they veal that since 1988 the unemploymentauthorized increased production of pro- rate in the apparel industry has averagedtective clothing to a maximUIu-6f $222 ··9.8 pcrcent;-a-rate60percenthighermillion in sales spread over the next five than the national average unemploymentyears, an average of$44.4 million a year. of 6.1 percent over the same period ofThe FPI board concluded its written de- time.cision with: "The Board also notes for It would appear that federalthe record that, while FPI must be self- UNICOR slaves are the only sector ofsufficient the principal emphasis of the apparel job market enjoying growthincreased sales should be the creation of in employment. Of course, women andadditional inmatejobs, which teach work children in Third World maquilladoraskills and enhance the prospects for em- sweat shops are also enjoying similarployment and successful reintegration employment gains. Perhaps federal pris­upon release. oners can move to El Salvador when they

But as American Apparel Manufac- get out of prison and look for a job?turers Association President Larry K.

Prisoners May Be Allowed to Lead Religious ServicesA feder~l district court ~n Penn- noted an easy alternative would be to

rtsylvama ruled that a pnson rule simply require an outside volunteer toprohibiting prisoners from leading reli- be present at the religious services rathergious services may be unconstitutional. than lead them.F?ur Musli~ prisoners ~n a Penns~lva- The court held the plaintiffs hadma state pnson filed SUIt challengmg a stated an equal protection claim in thatprison rule which prohibited prisoners civic groups could elect their own lead­from leading rel~gious services. Prior to ers. The court held that prison religiousthe. ~ew rule pnsoners co~ld choose a and civic groups were similarly situatedr~hglOus leader from the pnson popula- for equal protection purposes. In sched­tlO.n. who would then conduct the uling the evidentiary hearing the courtrehglOus servIces. Under the new rule noted that the pivotal issue was whetheronly outside religious leaders could con- the tenets of Islam required that theduct prison religious services and those Imam be chosen from within the con­ou.tside lea~ers had t~ be chose~ by gregation. The plaintiffs apparentlypnson offiCIals. The pnsoners clatmed forgot to attach their affidavits to theirthe new policy violated their religious motion for a preliminary injunction. Therights under the first and fourteenth defendants presented an affidavit from aamendment. They did not raise any catholic priest who administers the Penn­clai~sundertheReligiousFreedomRes- sylvania DOC's religious servicestoratlOn Act (RFRA). program stating "In a correctional set-

This is not a ruling on the merits, ting, it is not repugnant to Islam that theinstead the court denied the defendants'· outside religious coordinators be chosenmotion to dismiss for failure to state a by the administrators for the Departmentclaim and scheduled an evidentiary hear- ofCorrections." The court noted that theing to determine whether a preliminary priest did not explain why Islam in ainjunction would be issued. The court correctional setting might be differentheld the prisoners had presented suffi- from Islam in a free setting. The courtcient evidence under the reasonableness stated it would give the plaintiffs leavetest of Turner v. Safley, 482 US 78, 107 to amend their complaint and plead anS. Ct. 2254 (1987) to show that prison RFRA cause of action if they so desired.officials asserted reasons for adopting the See: Abdul Jabbar-AI Samad v. Horn,new policy were pretextual. The court 913 F. Supp. 373 (ED PA 1995).•

October 1996 2 Prison Legal News

Welcome to another edition ofPLN. Last month we in­

tended to run Jaan Laaman's article,"Attica - Looking Back 25 Years," whichappears on page of this issue. Due to aprison lockdown, Jaan was unable to getthe article to us in time for the Septem­ber issue. I hope you will find it wellworth waiting for.

Twenty-five years ago last month,the uprising at Attica and the state'sbloody and brutal retaking of the prisonwas an event that shook the world. Whenthe prisoners took over Attica they pre­sented a long list ofdemands. They werereally only asking for one thing, though.They were asking to be heard. They hadsuffered under brutal, inhumane condi­tions for too long, and they wanted theworld to know how bad things in prisonin America in 1971 really were.

They asked for the media to cometo Attica. Some, like Tom Wicker, did.They asked for attorneys to come toAttica. Many, Bill Kunstler amongthem, were drawn there. I mention thisbecause more than two decades later Billwas among our earliest subscribers.Sadly, Bill Kunstler died a year ago.

But back to Attica. The AtticaBrothers, as the prisoners came to beknown, wanted the world to come andbear witness to the reality of prison in1971. They had no voice. They had noway to bear witness themselves. Prison­ers in 1971 had almost no access to thecourts. The constitution was blind towhat went on behind the walls.America's courtroom doors were closedto prisoners.

Martin Luther King Jr., once said:"Riot is the voice of the unheard." TheAttica Brothers had suffered mutely longenough. Since they had no other meansto voice their grievances, they rebelled.Four days later, 31 prisoners and 10 hos­tages were gunned down in a maelstromofbullets which rained from over a thou­sand rifles and shotguns brought tosilence their collective voice.

The gunfire was too late, however.The Attica Brothers had been heard.And Attica wasn't the only prison to havehowled its voice in rebellion. It was justthe loudest. The echoes of Attica rever-

Prison Legal News

From the Editorby Dan Pens

berated the furthest, reaching all threeofthe big P's - the Press, the People, andthe Power structure.

The power structure heard the voiceofbloody rebellion. They listened to thefaint rumble ofrevolution. They saw thepeople in the streets in their thousands.They realized that the fuse had been lit.So they gave ground.

The power structure opened thecourtroom doors in the years followingAttica and invited prisoners to seek jus­tice there. Audas -Allan Breed;--formercorrectional administrator and the firstdirector of the National Institute of Cor­rections, wrote in a recent CorrectionalLaw Reporter article: "Most [prison]program development, building im­provements, increased staffing, andimproved training, as well as the estab­lishment of standards that has occurredin the last 25 years, can be directly re­lated to correctional litigation."

In the last 25 years. Twenty-fiveyears ago the Attica Brothers stood up.Some of them were slain. Most of thesurvivors suffered savage beatings andyears of intense harassment and retalia­tion. But they suffered not in vain. Inthe years following Attica reforms weremade; landmark court rulings for the firsttime recognized the civil rights of theimprisoned and opened the way for pris­oners to seek justice in the courts. Thepower structure didn't offer prisonersjustice out of a sense of morality. No.Prisoners pushed hard enough - andmore importantly, the people in thestreets pushed with them - that the powerstructure gave ground. No justice, nopeace. It was that simple.

Twenty-five years have passed, how­ever, and the pendulum is swinging back.Events of the past couple of years(Sandin v. Conner, passage of the PrisonLitigation Reform Act, Lewis v. Casey,the "Anti-Terrorism" bill and Felker v.Turpin, to name a few) indicate that thepower structure has forgotten Attica. Ormaybe they haven't. Maybe they justthink that the other P's have forgotten:Prisoners, the People and the Press.Maybe we have.

As the courtrooms doors once againswing shut in the faces of prisoners, we

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are at a critical juncture in the prisonrights movement. Now is the time tolook for other avenues besides litigationby which to seekjustice. Now is the timefor prisoners, family members and ac­tivists to form prisoner support andadvocacy organizations. Look aroundyou. Do such groups exist in your state?Are you involved? Are you willing toorganize? Are you willing to stand up?Or will prisoners allow the darkness de­scend around us and take us back to1971?

I'd like to tell Washington state pris­oners about a new organization,Pro-Family Advocates of Washington(PFAW). They just published the sec­ond issue of their newsletter. Theirmasthead proclaims: "PFAW is a non­profit organization consisting ofprisoners' family members, prisonersand concerned citizens, dedicated to pre­serving the rights, both legal and moral,of the families and children of the pris­oners ofthe state of Washington." Theydon't say how much it costs to subscribeto the newsletter, but they undoubtedlyneed donations and support. I suggestthat prisoners send a donation ofat least$10 - $15 and ask to be added to theirmailing list. Prisoners in other statesmay want to subscribe to PFAW's news­letter in order to "get in on the groundfloor," to observe and learn how this typeof organization is formed, perhaps of­fering a blueprint for similarorganizations in states without some­thing like PFAW. Their address is:PFAW; 221 SW 153rd Street, Suite #244;Seattle, WA 98166-2398.

Please remember that we operateprimarily through your support. Theprinter and the post office don't takeIOU's. Those of you who can pull yourown weight, please continue to do so.Those of you who can afford to donatemore, thank you for your continued gen­erosity. We literally couldn't do it withoutyou.

Enjoy this issue. Pass it along to afriend when you're done and please en­courage others to subscribe. PLN is oneof the few voices that prisoners have.Let's work together to keep it going inthe coming years.•

October 1996

The "Honorable Men" Defenseby Mumia Abu-Jamal

[Editor sNote: With this issue PLN wel­comes its third quarterly columnist,Mumia Abu-Jamal, a political prisoneron death row in Pennsylvania.]

"The noble Brutus hath told youCaesar was ambitious:

If it were so, it was a grievous fault;And grievously hath Caesar

answer'd it. Here, under leave ofBrutusand the rest,-

for Brutus is an honorable man.So are they all, all honorable men."

-William Shakespeare, Julius Cae­sar; Act III; Scene II.

For jailhouse lawyers and otherprison litigators, the "honorable

men" defense arises far too frequentlyin prison litigation.

More often than not, it arises, noton the motion of the party defendingagainst the suit, but sua sponte, by theCourt itself, as a statement of affirma­tion of the government's representatives.

Say a plaintiffcharges a state officerwith violating a "constitutional guaran­tee" claimed within the articles oramendments of the U. S. Constitutionand after a hearing or trial, the claim i~found to be true. In such an instanceshould a court describe the violators a~"honorable men?"

If a court does so, does it protect theConstitution, or the state official who hasviolated it?

Is it a Court's duty to defend thestate's interests, or to defend the Consti­tution from violation?

These are not rhetorical questions.This very thing happened in Jamal

v. Price, where the plaintiff argued thatthe government, through its prison offi­cials illegally and unconstitutionallyopened, read and copied his legal corre­spondence, lied about it, and did itrepeatedly thereafter.

Further, the suit charged the statepunished this writer for writing LivefromDeath Row (Addison-Wesley, 1995), thuspunishing one for the practice of his al­leged First Amendment "constitutionalrights" to freedom of the press, and freespeech.

The Court, in a remarkable display Moreover, the references to Naziofjudicial solicitude, described the state Germany and the Soviet Union don'tprison officials as "conscientious and acquit the U.S., for in both instances, thescrupulous persons" and goes to some forms of "law" were met. The Nazi ho­lengths to disassociate this government locaust was a legal holocaust; as was

.. fmm some seen as repressive: _ . .llluchofSoviet repression-statutes were"This is the United States of passed, and genocide was legalized!

America; it is not Germany in the 1930's The German-Soviet references wereand '40 's. Persons do not come before but oblique judicial responses to the hor­our criminal justice apparatus only to rific truths chronicled in Livefrom Deathdisappear im nacht und nebel, as into the Row, and therefore amounted to a judi­night and fog. This is not the Soviet cial book review!Union; people are not swallowed up in How else can one interpret it?some vast gulag to reappear, or not to do Not content to decide constitutionalso, randomly. In this country convicted rights, the Court launches into a defensecriminals are sentenced to prison or as of the status quo, of the reigningin this case, to death; but they ~re 'not sociopolitical order, as "not Germany,"stripped of all their rights; and they do nor the Soviet Union.not disappear." (Id., SL., OF., 3) Ofcourse notIt is the United States

From whence springsthisdis~circa-llJ9e-'s-'-"'-andthereinlies the mb. 'course? The United States-the prisonhouse

Why refer to Nazi Germany or of nations, where, at latest count, overStalinist Soviet Union, in a case where 1.6 million men and women werean Mrican-American prisoner charges encaged; where the state bombs andthe contemporary state with violating his maims its alleged citizens with criminalalleged First Amendment "rights" offree impunity (witness the MOVE massacrespeech? of May 13, 1985); where men and

(Interestingly, the Court chose to women are encaged for their social, po­refer to the 1930's rather than the more litical and spiritual beliefs (ex., thecontemporary, white supremacist repres- MOVE 9, Geronimo ji jaga [ne Pratt],sion visited upon the Black majority Leonard Peltier, Dr. Mutulu Shakur, Rayunder the apartheid regime in South M- Luc Levasseur, Sundiata Acoli Zolorica for the better part of this century!) Agona Azania, Marilyn Buck, ,Sheik

In logic, the principle of extremis Omar Ali Abdul Rahman [convicted dueprobatis, praesumuntur media (extremes to a series of sermons preached in a pub­being proven, intermediate things are lic mosque!], et al.).presumed) is sometimes utilized by cre- This United States which wagedating a contrast that really isn't naked genocide against the indigenouscontrastable. peoples of the Americas, and called it

The writer, being neither German Manifest Destiny; which wiped out moreJew nor Russian dissident, cannot cite millions than its cousin, Germany.to those experiences as touchstones for It was in this United States that thethe present,and any reference to them writer was punished for writing, despitecan only serve to mislead readers from the claims of the First Amendment.the repressive realities of the American Prison officials, although found topresent. have lied on the witness stand, are none-

Indeed, who among us can honestly theless presumptively "honorable men,"deny the naked state repression visited even as the Court found:upon Black people in this nation, in her " ... [T]he decisions to deny plain­prisons, in her suburban state bantustans tiff media interviews were first made(laughingly called "correctional" insti- immediately after plaintiff's decision totutions)? Who can honestly argue against publish his book was communicated tothe proposition that the much-ballyhoed defendants [DOC counsel] Horwitz and'War on Drugs' is but a thinly-disguised [prison wantent-Price:These decisionsWar on the Black Poor? continued, with a variety of purported

October 1996 4 Prison Legal News

Alleged Work Refusal Requires Trial

justifications, for several months. Thesepurported reasons are demonstrablyfalse." (ld., SL., OP., p. 56)

Itwas precisely these purported rea­sons that were claimed by prison officialson the stand!

But, alas - "So are they all, allhonorable men."

Inherent within the system is thebias of the status quo, the preservationof the existing order, and whatever un-

The court of appeals for the sec­ond circuit held that a district

court erred when it disregarded a pris­oner plaintiff's affidavit that he had notrefused a work assignment. The courtalso declined to decide whether stateprisoners have a federal liberty interestwhen deprived of prison privileges.

Alphonso Samuels is a New Yorkstate prisoner. New York prison regula­tions require that prisoners participatein work programs. Ifthey refuse the pris­oner is placed in a "limited privilegesprogram" where they are confined totheir cells for 23 hours a day, and haverestricted access to showers, phones, andlibrary. Samuels was placed in the lim­ited privileges program after allegedlyrefusing a work assignment. Samuelsfiled suit under 42 U.S.C. § 1983 claim­ing his due process rights were violatedwhen he was placed in the program withno notice or hearing, most importantly,Samuels claimed he had not refused anywork assignment. The district courtgranted summary judgment to the de­fendants holding that Samuels wasplaced in the program for refusing towork.

The court of appeals reversed andremanded. The court discussed the stan­dard by which summary judgmentshould be granted to a party only whenno material facts are in dispute. Thecourt held that in this case the lowercourt erred by dismissing the case be­cause Samuels, in a sworn affidavit,denied having refused to participate inany work assignments. The defendantsdid not offer any evidence refutingSamuels' affidavit. instead the lowercourt erroneously relied on unsworn ar­guments by the defendant's attorney.

The defendants argued that even ifSamuels had not refused to work and had

Prison Legal News

covers the horrific dungeons, as did Livefrom Death Row, is seen as disfaYoLed,_

In American prisons, men are tor­tured, women are raped, captives are ­poisoned, and injustice is ubiquitous.Here, families, psyches and souls areripped asunder, all administered by"honorable men. "

To write about such legal evils istverboten.•

not been provided a hearing before be­ing placed in the limited privilegesprogram this was immaterial in light ofSandin v. Connor, 115 S.Ct. 2293 (1995)which held that prisoners do not retainany due process rights unless a signifi­cant interest is impacted, such as the lossof good time.

The court noted that Sandin is ret­roactive and applies to all cases that werepending at the time it was issued." .. .Sandin may be read as calling intoquestion the continuing viability of ourcases holding that New York regulationsafford inmates a liberty interest in re­maining free from administrativesegregation. It is also unclear to whatextent the Sandin analysis confers a lib­erty interest on inmates subject to a stateregulation that has been held under theHewitt line of cases to confer no libertyinterest in the first place." The court dulynoted that while the Sandin court ex­pressly abandoned the methodology ithad set forth in Hewitt v. Helms, 459 US460, 103 S.Ct. 864 (1983), to determinewhen a state has created a liberty inter­est, the Sandin court "did not instruct onthe correct methodology for determiningwhen prison regulations created a pro­tected liberty interest." As PLN noted atthe time, that is the problem. [PLN, Vol.6, No.8.]

Whether the rules in question cre­ate a liberty interest under Sandinrequires fact finding by the district court,which was not conducted because thedismissal in the case preceded Sandin,and which the appeals court was not po­sitioned to undertake. On remand thedistrict court would reach this issue if itdetermined that Samuels had indeednot refused a work assignment. See:Samuels v. Mockry, 77 F.3d 34 (2ndCir. 1996).•

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Plaintiff Entitled to Respond to-Qualified -Immunity Defense

rr'lhe CQurt of aooeals for the fifth1 circuit held ~ district court im­

properly dismissed a prisoner's civilrights complaint when it did not allowthe plaintiff to respond to the defendants'qualified immunity defense. DonaldTodd, a federal prisoner, filed suit claim­ing his right to equal protection and tobe free from discrimination under 42U.S.C. § 1981 and 1983, were violatedwhen prison officials circulated a raciallyderogatory memo on BOP stationary.The district court dismissed Todd's com­plaint after the defendants filed ananswer to the complaint asserting aqualified immunity defense.

The court of appeals reversed andremanded. The court has previously heldthat plaintiffs suing government officialsin their individual capacities must meeta "heightened pleadings" requirement.In Schultea v. Wood, 47 F.3d 1427 (5thCir. 1995)(En banc) the court held "westand by our insistence that complaintsplead more than conclusions, and that aplaintiff can, at the pleading stage, berequired to engage the affirmative assis­tance defense of qualified immunitywhen invoked. However, we will nolonger insist that plaintiff fully antici­pate the defense in his complaint at therisk of dismissal under Rule 12." Thisrequires a two step process. First, theplaintiff sets forth in his complaintagainst government officials a short andplain statement of the complaint. Sec­ond, the court, in its discretion, mayrequire that a plaintiff file a reply tai­lored to an answer pleading a qualifiedimmunity defense. "Vindicating the im­munity doctrine will ordinarily requiresuch a reply and a district court's discre­tion not to do so is narrow indeed whengreater detail might assist."

The district court did not apply thisprocess because it dismissed Todd's com­plaint five months before Schultea was-decided. The court held that had Toddbeen given the opportunity to amend hiscomplaint he might have withstood themotion to dismiss. The case was reversedand remanded so Todd could file anamended complaint. Readers should notethis two part process is specific to thefifth circuit and has not been adopted byother circuits. See: Toddv. Hawk, 72 F.3d443 (5th Cir. 1995).•

October 1996

Unrest in South American PrisonsBrazil

On February 3, 1996, a special­ized military police unit killed

two prisoners and wounded another in aSao Paulo police station after puttingdown a rebellion by 127 prisoners pro­testing a lack ofwater at the facility. "It'snot normal" to shoot protesting detain­ees, admitted a Sao Paulo police official,adding that the agents involved had beensuspended from their duties.

On March 28, Brazilian prisonersarmed with sticks and handmade steelblades seized some 25 hostages duringan inspection at a prison in the Brazil­ian state of Goias. The inspection wasto check on reports of overcrowding atthe facility which has a capacity of 450but holds nearly 1,000 prisoners.

Among the hostages taken were thewarden of the prison, security secretaryfor the state of Goias, president of thestate's highest court, a number ofpoliceagents and a television crew.

On March 30, the state governmentagreed to the demands of the prisoners.Official spokespeople said the prisonershad demanded four cars, two armoredcars, 10 weapons of varying caliber, 10bullet-proofvests and $20,000. But hav­ing won agreement from the state onthese demands, prisoners upped the ante,insisting they needed more higher cali­ber weapons, ammunition, cellularphones, food for three months and$31,000.

On March 31, as a prisoner pointeda pistol at him, the warden made a speechfrom the prison wall urging police notto attack. "Brazil doesn't need anotherCarandiru," he shouted, referring to a1992 police massacre ofat least III pris­oners after a prison uprising in SaoPaulo. When his captor fired a shot intothe air, the warden - watched by millionson live television - shouted "for the loveofGod" and sobbed as he asked his fam­ily to "forgive me for my mistakes."

On April 3, after the state agreed tothe prisoners' latest demands - $97,000,eight escape vehicles, sixteen 38-caliberrevolvers with ammunition, 25 bullet­proof vests and three cellular phones ­the prisoners released all but 13 hostages.

On April 4, a group ofabout 40 pris­oners, taking six hostages, made their

October 1996

escape in eight vehicles. Two of the fu­gitives were later killed in a clash withpolice. Authorities said about half theescapees eluded capture.

One of the hostages, Judge Sabino,was freed after the car he was in crashedwith an armored police vehicle. On April5, Sabino said he didn't blame the pris­oners for rebelling, and said he wouldact as a defense witness to seek that pris­oners' sentences not be increased fortheir participation in the rebellion.Sabino said the prison is a center of cor­ruption, torture, mistreatment, drugtrafficking and extortion ofprisoners; heblamed the warden for the situation.

On April 12, Brazilian presidentFernando Henrique Cardoso issued adecree allowing state governments topardon prisoners serving sentences forcommon crimes. Between 15,000 and18,000 prisoners (about a tenth of thetotal prison population) who are servingsentences of six years or less will be eli­gible for release after completingone-sixth of their terms. A justice min­istry spokesperson explained that thedecree will help reduce overcrowding inBrazil's prisons.

Argentina

Over the week ofApril 1throughApril 7, 1996, prison rebellions

spread across Argentina. The eventsbegan on March 31, when some 800 pris­oners seized control of the Sierra Chicaand Azul prisons in central Buenos Airesprovince and took some 20 people hos­tage, including prison guards, severalevangelical pastors and ajudge. Prison­ers demanded application ofthe "two forone" law, which counts each day aftertwo years as two days towards eventualrelease. Other demands included morerespectful treatment of visitors and anacceleration of pending trials.

On April 1, the rebellion spread tothree other prisons in the Buenos Airesprovince. Prisoners demanded compli­ance with a law which prohibitsprisoners being held for more than twoyears without being sentenced. Some 70percent ofArgentine prisoners are await­ing trial.

On April 2, the rebellion spread tofive other prisons, and thousands ofpris-

6

oners began a hunger strike in eight otherprisons as a sign of solidarity. In all,over 10,000 prisoners were involved inthe protests. By April 6, officials saidthat prisoners were in control of 17 pris­ons and at least 26,000 prisoners wereinvolved in open rebellion.

On April 7, prisoners and govern­ment officials reached an agreement andthe rebellions ended. Prisoners werepromised that there would be no repris­als, but later 37 prisoners thought to haveled the rebellions were transferred tovarious police stations. Their fate isunknown.

Law enforcement officials said theyfound human skulls, thigh bones andother body parts in the ovens of oneprison. Records indicate that seven pris­oners were missing. Based on interviewswith some prisoners, officials believe thatthe seven missing were killed and cre­mated because they opposed therebellion.

There were conflicting reports ongovernment concessions made to theprisoners. Officials said that none weremade beyond promises to enforce thetwo-for-one law. But newspapers saidthat prisoners were also promised aprison commission with prisoner repre­sentatives, and more lenient sentencesfor car theft.

Uruguay

On April 3, 1996, more than 200Uruguayan prisoners began a

peaceful rebellion in the SantiagoVazquez prison some 30 km west of thecapital. On April 5, Uruguayan mili­tary troops moved into the area and roadsleading to the prison were blockaded toprevent prisoners' family members fromgetting too close.

Interior Minister Didier Opertti saidon April 5 that "the situation is normaland there is calm among the inmates."Opertti added that supreme court presi­dent Juan Marino, by his own choice,planned to talk with the prisoners abouttheir concerns, which include the slowpace of trials and the scant interest bygovernment appointed lawyers in theircases. Opertti denied that the govern­ment intended to forcibly remove anumber of prisoners' families who had

Prison Legal News

Reviews

gained entrance to the prison and wereoccupying it in solidarity with the pro­testers.

We at PLN have no received no re­ports on the outcome of the Uruguayanprisoners' struggle.

EI Salvador

A s of June, 1996, there were8,225 prisoners jammed into

El Salvadorian prisons with a theoreti­cal capacity of only 3,800. About 70percent of them have never been con­victed ofa crime and are simply waitingto be charged and tried. Some have beenincarcerated longer than the maximumsentences for the crimes they are chargedwith.

Mariona prison on the outskirts ofthe capital is designed to hold 800 pris­oners. In May it held 2,381 and lookedlike a crowded slum. Prisoners buildmakeshift restaurants, stores and sleep­ing facilities to sell services to those whocan afford them. For those who cannotafford better ones, cells designed to hold10 people become the homes for 30.

In late May, Mariona prisoners an­nounced that because of the insanelyovercrowded conditions they would killany new prisoners delivered to theprison. That announcement promptedofficials to cap the population there,which worsened the overcrowding inother prisons.

In Late June, prisoners at the SantaAna prison announced a plan to protestovercrowded conditions there, where787 prisoners are jammed into a facilitydesigned to hold 350. The plan involvedplacing 787 slips ofpaper in a container,four with the word death written onthem. The prisoners would then hold a"lottery of death." Those drawing thefour "death" slips would either hangthemselves or their comrades would slittheir throats.

Again, as we go to press PLN hasnot heard of further developments in EISalvador, including whether the "deathlottery" was actually held. We will at­tempt to keep our readers updated onprison struggles in South and CentralAmerica as well as the rest of the world.As the U. S. Courts and Congress onceagain impede prisoners' access to thecourts, pass ever more punitive sentenc­ing laws, and overs tuff America's

Prison Legal News

already crowded gulags, perhaps PLNreaders will begin to see the relevance ofreporting of these struggles in foreignprisons.

Sources: Washington Post, WeeklyNews Update on the Americas .

Less than LethalForce Liability

The April, 1995, issue of theCreighton Law Review contains and ex­tremely informative article titled LessThan Lethal Force Weaponry: Law En­forcement and Correctional Agency CivilLaw Liability jor the Use of ExcessiveForce, by Neal Miller. While much ofthe article's focus is on the use of forceby police most ofthat analysis and a sepa­rate section covers the use of Less ThanLethal Force (LTLF) in prisons. LTLFconsists of tasers, stun guns, pepperspray, mace, tear gas, batons and similarweapons which while potentially deadlyare not in and ofthemselves designed tokill. The law review article gives a run­down on the principles of state law andfederal liability for the use of force, thegovernment's liability, the manufactur­ers liability (the makers of the equipmentare also liable for the misuse of theirproduct and can be sued accordingly).Due to space limitations PLN cannot re­print the article.

Anyone who is litigating the use ofLTLF weapons should read this law re­view article as it provides an extensivelyfootnoted, comprehensive analysis of le­gal facts and principles to use inlitigation. The best time to read this ar­ticle is before drafting the complaint.The citation for the article is: 28Creighton L.Rev. 733, April, 1995.

Smoke and MirrorsReview by George EverettSmoke &Mirrors has less to do with

drugs than it does with the true casual­ties of the long-fought War on Drugs ­the many civil liberties that all ofus havelost, especially in the last decade, as fed­eral policy has amassed greater andgreater powers in the hands ofpolice andprosecutors.

7

[The latter source is publishedweekly. Free one month trial subscrip­tions are available; otherwise, the costis $25/yr. Write to: Nicaragua Solidar­ity Network of Greater New York, 339Lafayette St., New York, NY 10012.] •

Dan Baum puts you in the room aseach new Drug War law, court decisionor policy change is discussed and cre­ated. The reader watches his or her ownConstitutional rights stripped away pieceby piece by people who should haveknown better.

This not a dry book about legal pre­cedence and maneuvers, however; eachnew onslaught is placed in context byhow it affects the people most harmedby them. The names, faces, lives, andfamilies of the Drug War's victims arevividly displayed.

For instance, Baum tells about aninnocent African American landscapernamed Willie Jones traveling from Nash­ville to Houston to buy shrubs who madethe mistake ofbuying a plane ticket withcash. That bumped him into a drug cou­rier profile and the ticket agent receiveda reward for reporting the person to au­thorities who confiscated his cash.Travelers, fitting drug courier profiles,mostly people of color, can be requiredwith impunity now to undergo X-ray ex­aminations, full cavity searches, and todefecate in buckets upon demand beforethey are allowed to continue on theirjourney.

The most odious of these recent in­fringements however involve civil andcriminal forfeiture laws that now makeit legal to arbitrarily confiscate the prop­erty of someone only suspected ofa drugcrime. These laws have turned drug in­vestigations into money-making venturesfor law enforcement departments aroundthe country. Some even have budgetsthat rely heavily on property confisca­tion - cash, cars, land, homes - fromthose suspected of drug crimes - evenif they are not convicted. Drug defen­dants have their assets frozen andconfiscated before their trials.

Particularly useful are Baum's co­pious footnotes. Every quote, fact, and

October 1996

Reviews (Continued) A Matter of Fact

court case in the book is documented,making further research easy.

Smoke and Mirrors shows how theDrug War was cooked up as a sexy po­litical issue in the Nixon years, and thenwas rehashed and re-heated through theReagan and Bush years to a fever pitch.But as Baum clearly explains, the blameis bipartisan. Democrats and Republi­cans alike have climbed over themselvesto enact harsher laws and regulations andthe fervor has not abated in recent yearsjust because a Democrat was electedPresident.

Baum has raised questions that fortoo long many were too afraid to articu­late. He has asked them well, he hasasked them of the right people, and hehas elicited candid and clarifying an­swers. This book contains the results of175 conversations with policy makerswho through the years have set theseforces into motion and with many inno­cent victims of those policies.

We have lost too much already, asthis misguided domestic policy disguisedas a jihad has pilfered public coffers, di­verted attention and resources fromserious violent crimes, destroyed careers,reputations, and property, and taken aprecious toll of innocent lives on bothsides of the law.

Smoke and A1irrors can be orderedby sending a check for $24.95 to Little,Brown & Co., Attention Order Depart­ment, 200 West Street, Waltham, MA02154, or by calling 1-800-759-0190with a credit card number.•

Correction

In the July, 1996, issue of PLN wereported Prison Litigation Reform ActPassed. On page three we incorrectlystated that the PLRA limits attorney feesto $40 an hour for out ofcourt work. ThePLRA limits attorney fee recovery to150% of the amount set in 18 U.S.C. §3006A. So the actual amount would be$62.50 for out of court work. We apolo­gize for the error and thank alert readerStephen Pevar for bringing it to our at­tention.

October 1996

y A 1988 study of California pris­oners concluded that there is a strongpositive correlation between prisoners'visiting and their successful transitionto the free world. Of those who received12 or more visits in their last year ofincarceration, 68.5 percent had "satis­factory outcomes" (presumably meaningno arrests or reincarceration) comparedto 38.7 percent for those who had re­ceived no visits.

Y In its last term, the U.S. Houseof Representatives passed H.R. 666,which curtails the need for a search war­rant in cases of drug interdiction. WhenH.R. 666 was being debated, Rep. MelvinWatt of North Carolina introduced anamendment that consisted of the exactlanguage of the Fourth Amendment tothe U.S. Constitution. The House, giventhis opportunity to vote on the 4thAmendment, defeated it by a vote of303­121.

Y A 1992 study by MichaelRadelet of the University of Florida andHugo Bedau of Tufts University, "InSpite ofInnocence," identified 23 casesin which innocent people have been ex­ecuted in the U. S. since 1900. Over 400were wrongfully convicted of capitalcrimes during the same period.

y A recent survey of prison war­dens revealed that wardens believe thatone to three percent of death row pris­oners are innocent. There are about3,000 people on death row in the U.S.scheduled for execution. If 1-3 percentwere innocent, 30-90 innocent peoplecould be executed.

Y According to John Challenger,president of Challenger, Gray & Christ­mas, a firm that keeps track of layoffs,"The pace of layoffs is way ahead of lastyear at this time." Job cuts across the U.S.had already reached 230,350 by the endof May 1996, which is a 34 percent in­crease over the pace oflayoffs in the firstfive months of 1995.

Y U.S. credit card debt increasedfrom $286 billion at the end of 1994 to$364 billion at the end of 1995. The re-

8

volving credit card indebtedness of theaverage U.S. household is $4,600.

Y In 1982 there were 380,252bankruptcies in U.S. courts, of whichabout 72 percent were private cases (asopposed to businesses or corporations).In 1995 there were 926,601 bankrupt­cies, of which over 94 percent wereprivate cases.

Y According to a 1996 UN report,the U.S. is among the world's leaders inincome disparity, in a category withcountries such as Brazil and Guatemala.The income of the top 20 percent ofAmericans is nine times as much as thebottom 20 percent.

Y Greater Los Angeles leads thenation in bank robberies, with 1,200bank heists in 1994. Notorious bankrobber Willie Sutton was once asked whyhe robbed banks. "Because that's wherethe money is," replied Sutton.

Y "There can be no equal justicewhere the kind of a trial a man gets de­pends on the amount of money he has."- S.Ct. Justice Hugo Black, 1956.

Y More than 39 percent of CAstate prisoners serving third-strike sen­tences were sentenced in LA County, andabout 44 percent of all second-strikersin CA prisons came from LA County.

Y There are 33 male and 3 femaleConservation Camps operated by theCalifornia Department of Corrections(CDC). The average prisoner workingin a CDC camp is paid 25-75 cents anhour. The CA Department of Forestryestimates a $70 million annual savingsfrom using convict labor.

Y Both California and Floridacurrently spend more on "corrections"than they spend on higher education.

Y The number of guards and su­pervisory staffemployed in Texas prisonsmore than doubled from 12,187 in 1990to 26,072 in 1995.•

Prison Legal News

Cause of Action Accrues on Disciplinary Reversal

Prisoner Testimony Must BeConsidered in Spears Hearing

The court of appeals for the sec­1. ond circuit held that the statute

of limitations for a § 1983 action doesnot begin to run until a prisoner has suc­cessfully challenged the disciplinaryhearing in state court. Theodore Blackis a New York state prisoner. In 1990 hewas infracted and found guilty in a dis­ciplinary hearing. He was sentenced to180 days in segregation. Administrativeappeals were unsuccessful but he suc­ceeded in having the infraction reversedin state court. By that time Black hadalready served the segregation sentence.In 1993 Black filed suit in federal courtseeking money damages for the depri­vation of due process at the disciplinaryhearing. The district court refused todismiss the suit on defendants' motionthat Black's success in state court barredthe federal action. Black was deniedleave to amend his complaint to add theprison officials who had denied his ad­ministrative appeals. The district courtthen granted the defendants summaryjudgment holding that the complaint wastime barred because Black did not filesuit in federal court until the statute oflimitations had expired.

The court of appeals affirmed dis­missal of one defendant for lack ofpersonal involvement, but it reversedand remanded on the statute of limita­tions issue. "Though the district courtcorrectly noted that Black's claim is gov­erned by a three year statute oflimitations, the court incorrectly ruledthat that the claim accrued on the dateof Selsky's affirmance of the disciplin­ary ruling, rather than the date of thestate court's reversal of the disciplinaryrulings." The court relied on Heck v.Humphrey, 114 S.Ct. 2364 (1994) to re­affirm that § 1983 has neither a statuteof limitations (such time bars are to beadopted from the relevant state law inthe state where the claim arises) and thatthere is no state court remedy exhaus­tion requirement. "We see no reason whyHeck, which dealt with constitutionalchallenges to a criminal conviction, isnot also controlling with respect to dueprocess challenges to prison disciplin­ary hearings."

"Under the principle announced inHeck, Black's cause ofaction for denialof due process in the disciplinary pro-

Prison Legal News

ceedings did not accrue until he suc­ceeded in having the disciplinary rulingreversed by the state court in 1991.Black's original complaint, filed in 1993,was therefore not time-barred." The courtalso rejected the claim that Black shouldnot be allowed to amend his complaintand add new defendants because theywould claim qualified immunity. Thecourt noted that qualified immunity is anaffirmative defense that must be pleaded

The court of appeals for the fifthcircuit held that a district court

abused its discretion when it heard aprisoner's testimony during a Spearshearing and then disregarded it and dis­missed the complaint. Danny Eason, aTexas state prisoner, filed suit claiminghis eighth amendment rights were vio­lated when prison guards, withoutprovocation, threw him to the ground andkicked him while he was handcuffed.The district court held a Spears hearingwhere Eason testified about the incidentthe injuries he suffered and each guards:involvement. The court then dismissedthe complaint for failing to state a claimbecause Eason had not, according to thecourt, alleged any injury.

The appeals court began its analysisnoting that dismissals under FedRCiv.P.12(b)(6) are reviewed de novo on appeal.Dismissals are not proper unless, basedsolely on the pleadings, it appears thatthe plaintiffcan prove no set offacts sup­portive of his claim that would entitlehim to relief. The court characterizedthis appeal as presenting the question ofthe proper relationship between Spearstestimony and filed pleadings. The rul­ing has extensive footnotes explainingthe role that Spears hearings play in pris­oner litigation in the fifth circuit; anyprisoner litigant in that circuit would b~well advised to read this ruling. The roleof the hearings is to bring into focus thelegal and factual claims made by pro seprisoners. Testimony at such hearingsbecomes part ofthe total filing by the prose applicant. In a motion by the defen-

9

by the defendants; plaintiffs do not haveto plead facts showing the absence ofsuch a defense. This ruling will be ap­plicable only in those cases where asubstantial amount of time has lapsedbetween when a disciplinary hearingtakes place and when the federal suitis filed and the delay was due to ex­haustion of state remedies. See:Black v. Coughlin, 76 F.3d 72 (2ndCir.1996].•

dants to dismiss a suit for failing to statea claim, the Spears testimony, whichmodifies the complaint, bears on anyevaluation of the complaint's legal suf­ficiency.

"In the instant case, the court prop­erly reached the question whether thecomplaint failed to state a claim. Thecourt erred, however, in- disregardingEason's relevant testimony during theSpears hearing, for that testimony, as itrelated to essential allegations, was in­corporated into the pleadings. Further,the relevant Spears testimony remaineda part of the pleadings after Easonamendment his complaint, even thoughthe amended complaint itself supersededthe original complaint under the well­settled law of this circuit.

This view is both consistent with theSpears goal ofenabling preliminary de­terminations to be based upon specificinformation, and promotes the rubric thatwe are to construe pro se pleadings lib­erally. Requiring a new hearing toparticularize the prisoner's allegationsfor every amended complaint would leadto an unacceptable waste of judicial re­sources. Accordingly, following Eason'sSpezmctel'timony thepJeadingsffiust betaken to include an allegation that thechallenged use offorce resulted in in­jury; dismissal of the complainttherefore was improper." The districtcourt's ruling was vacated and re­manded for further proceedings. See:Eason v. Holt, 73 F.3d 600 (5th Cir.1996).•

October 1996

Texas Parole Rules on Litigants and Victim Statements Enjoined

10

A federal district court in Texas.ssued an extensive injunction

prohibiting the Texas Board of Pardonsand Paroles (TBPP) from taking into ac­count either a prisoner's litigation historyor unverified protest statements whichoppose a prisoner's parole in making pa­role decisions. The court denied reliefconcerning consideration ofa prisoner'sfurlough history when making a paroledetermination. The case involves a classaction suit in which the class consists ofall Texas state prisoners. The prisonersfiled suit under 42 U.S.c. § 1983 tochal­lenge the fact that TBPP routinely usedprisoners' litigation history, i.e., thattheyfiled suit against prison officials or theparole board, as a reason to deny prison­ers parole. Also challenged was thepractice of the TBPP using protest state­ments filed by persons opposed to aprisoners' parole as a reason to denyparole while not providing the prisoneraccess to the statements or verifying theaccuracy of the statements. This rulingapplies only to Texas prisoners but will"be useful to prisoners held in states whichstill have indeterminate sentencing sys­tems.

Writ Writing ActivitiesThe court noted that prisoners have

a right of access to the courts groundedin the due process clause ofthe constitu­tion. "Given inmates' constitutional rightofaccess to the courts, any considerationof writ writing as a factor in the paroledecision is a deprivation ofdue process,and Defendants do not contend other­wise. Such consideration also violates theequal protection clause. City ofCleburnev. Cleburne Living Center, Inc., 473 US432,439, 105 S.Ct. 3249,3254 (1985)(equal protection requires that similarlysituated persons be treated alike). Anydistinction made between inmates whoseek access to the courts and those whodo not violates the equal protectionclause. Further, 'prisoner officials maynot retaliate against or harass an inmatefor exercising the right of access to thecourts... ' Woods v. Smith, 60 F.3d 1161,1164 (5th Cir. 1995)."

The TBPP has no rule or policy pro­hibiting it from considering a prisoner'slitigation history when it makes paroledecisions. Evidence at trial showed thatlitigation information was frequently inprisoners' parole files; prisoners have no

October 1996

access to information in their parolefiles 8(f)(2) and (3) and § 8{h). These per­and that the litigation information was sons can then send letters to the TBPPfrequently used against prisoners when expressing their reasons for opposing thethey appeared at parole hearings. "Al- prisoners' parole. The statute wasthough the evidence is circumstantial, amended in September, 1995, to allowbecause no representative ofDefendants for an oral presentation to the boardwill admit that writ writing activities are (which under another statute is not re­considered when making parole deci- quired to meet as a body to perform itssions, there is no other reasonable parole functions!).explanation for the tremendous weight There is no means to investigate orof testimony showing that writ writing verify the information contained in theactivities are frequently discussed in pa- protest letters and prisoners are not pro­role interviews and that documentation vided with copies ofthe letters nor givenof such activities frequently appears in an opportunity to rebut the allegationsinmate's parole files." The court held that made in the letters. The evidence at trialthis situation chills prisoner's right of showed that prisoners who receive pro­access to the courts. This was typified test letters are more likely to be treatedby one parole board member who testi- differently than those who do not. Nofied that "suing the parole board is not rule or policy governs how the lettersthe way to go about getting out of were used. No defendant could cite anyprison." policy served by decisions based upon

The court issued the following in- inaccurate information. Moreover, favor­junction: "The Board shall adopt by rule able parole decisions had beena policy that prohibits consideration of withdrawn upon receipt ofprotest lettersinmates' exercise of the constitutionally with no new or additional information.protected right ofaccess to the.courts. ""The Board has based its parole decisionsThe rule shall specify that such activity upon protests containing wrong informa­is wholly irrelevant to the parole deci- tion, that are vindictive, or that are thesion making process. The rule will apply result of political pressure. Many of theprospectively to all inmates considered protest letters contained within the in­for parole after the date of the original mates' files refer to unadjudicatedopinion. The rule adopted by the Board offenses."shall establish specific, enforceable sanc- Because Texas creates no due pro-tions for all violations of this policy. cess liberty interest in its parole process

"A formal publicized means shall be the plaintiffs could not sustain a due pro­established for inmates questioned about cess challenge to this practice. But antheir writ writing activities or those in- equal protection claim was viable. Themates who have reason to believe that court described the Texas parole systemthis Board policy has been violated to as "A system has been created which isbring such questions to the attention of extremely arbitrary and capricious andthe Board. All existing files shall be re- which violates the equal protection rightsviewed for and purged of any and all ofthe Plaintiffand the Plaintiff class, nodocumentation related to an inmate's liti- matter how small the number of parolegation activity as the specific inmate candidates are [sic] affected by protestbecomes eligible for review. Only upon letters." The defendants strenuously ar­the written request ofan inmate shall any gued against any type of process thatlitigation material or information be in- would require the verification of the in­cluded or retained in his or her parole formation in the protest letters.file." The court's injunction on the pro-

Protest Letters test letters states: "Until the lawsThe court gives a detailed explana- governing the use of protest statements

tion of how the Texas parole process in parole decisions meet constitutionalworks and the manner in which a requirements (and no longer cause equalprisoner's parole file is processed. As a protection violations), the Board shallprisoner is considered for parole the adopt a rule which states that protestTBPP sends out a notification letter to statements, whether in written or oralpersons entitled t6 receivenoticeunderfoffil;shaUnotbeaccepted or consid­Tex.Crim.Proc.Code Ann. Art 42.18 § eredby the Board for any purpose when

Prison Legal News

Extending Release Date Violates Eighth Amendmentmaking parole decisions. Further, saidrule shall state that such protest state­ments shall not be placed in the inmate'sfile. This rule shall apply prospectivelyto all inmates considered for parole af­ter the date of the original opinion filedNovember 1, 1995."

The court denied relief to the plain­tiffs on their claims concerningconsideration offavorable completion offurloughs. Essentially this claim wasmooted by the fact that the Texas legis­lature abolished all furloughs exceptthose made under armed escort for rea­sons such as medical treatment. See:Johnson v. Texas Department ofCrimi­nal Justice, 910 F. Supp. 1208 (WD TX1995).•

Attorney Fees Awarded forOpposing Motion to Vacate

T he court of appeals for the fifthcircuit affirmed a district court's

award ofalmost $38,000 in attorney feesto class counsel for opposing a jaildefendant's motion to vacate a consentdecree. In 1978 prisoners at the Madi­son County jail in Madison, Mississippifiled suit challenging conditions of con­finement at the jail. The parties enteredinto a consent decree and in 1993 thejail defendants filed a motion for relieffrom the consent decree. The districtcourt denied the motion and found thedefendants in contempt for not meetingtheir obligations under the terms of thedecree. That ruling was affirmed on ap­peal at Cooperv. Noble, 33 F.3d 540 and41 F.3d 212 (5th Cir. 1994).

The plaintiffs filed for attorney feesin having opposed the defendant's mo­tion. The district court awarded theplaintiff's three attorneys a total of al­most $38,000 in attorney fees under 42U.S.C. § 1988. The lower court disal­lowed some of the hours claimed asbeing duplicative and repetitive, such astwo attorneys claiming to spend fivehours reviewing a transcript on one dayand another six hours reviewing it thenext. The appeals court affirmed hold­ing that attorneys seeking attorney feesmust be able to provide sufficient docu­mentation to support their claim.Anyone seeking attorney fees in civilrights cases in the fifth circuit will findthis case useful. See: Cooper v. Pente­cost, 77 F.3d 829 (5th Cir. 1996).•

Prison Legal News

A federal district court in Illinoisrtheld that the eighth amendment

is violated when a prisoner is held al­most two years past his release date. DonCampbell, an Illinois state prisoner, wasreleased from prison in 1986 to serve atwo-year term of Mandatory SupervisedRelease (MSR). A few months later hewas arrested and convicted for possess­ing a firearm. He was sentenced to twoyears in prison and was also declared anMSR violator. The state trial court or­dered that he serve the remaining MSRterm concurrently with the sentence forthe new conviction. Once in prisonCampbell allegedly violated disciplinaryrules and in a three day period lost threeyears, three days of good conduct time.Suspecting the infractions would be used toillegally lengthen his sentence, Campbellwrote prison officials who told him hisrelease date was in 1987. Later, they toldhim his release date was in 1990.

Finding no satisfaction with the re­sponses ofprison officials, Campbell fileda writ of habeas corpus in state court. Inan unpublished ruling the Illinois appealscourt found that Campbell had been heldpast his minimum sentence. The courtfound that Campbell should have beenreleased in 1988 and no later than 1989.Campbell filed suit under 42 U.s.C. §1983 seeking money damages for theexcess time he remained in prison. Thedefendants sought summary judgmentclaiming the sentence computation didnot violate the eighth amendment andthat two of the defendants had not beenproperly served.

The court denied the summaryjudg­ment in part and granted it only to theextent that the eleventh amendment pro­hibits suits for money damages againststate officials in their official capacities.The court held that Campbell had showngood cause for not serving two of the de­fendants because he made a diligent effortto do so and the error in service was madeby the Marshals Service. The court gave anextensive discussion to delays in servingdefendants by pro se litigants.

The court analyzed Campbell'seighth amendment claim and held it wasgoverned by the deliberate indifferencestandard set forth in Farmer v. Brennan,114 S.Ct. 1970 (1994). To meetthat stan­dard a prisoner litigant must prove twothings: first, that he has suffered an ob­jectively serious harm and second, that

11

prison officials had a culpable state ofmind in doing so, i.e., that there was anintent to punish.

"Incarceration of an individual be­yond the term of his sentence is'quintessentially punitive.' ... Even ifsuch imprisonment is the result of aninnocent error on the part of the stateofficials who were responsible, it is stillpunitive in nature, though the mistakennature of the punishment may bear onwhether the punishment was deliberatelyimposed. Anything more than a de minimisincarceration beyond a prisoner's propersentence satisfies the requirement, un­der Farmer, ... that the punishment, ifinflicted along with the culpable state ofmind, be 'sufficiently serious' to pose aconstitutional violation.... Here, plaintiffwas imprisoned up to two years beyondhis legal release date. The deprivationwas sufficiently serious to supportCampbell's Eighth Amendment claim."

The court held that whether the de­fendants had a culpable state of mind wasa matter requiring a trial to resolve. Thecourt noted that there was ample evidenceCampbell made prison officials aware ofthe problem and they made an incompe­tent attempt to resolve it by erroneouslycalculating his time structure. The courtheld that it required more informationabout each defendants' duties to deter­mine if they acted im;ompetently, whichwould free them from liability, or iftheyfailed to follow routine procedures whichwould have allowed them to detect andcorrect the errors in sentencing calcula­tions, which would make them liable.

"As a result of defendant's error,plaintiffwas incarcerated for at least oneyear and possibly two years beyond hislegal release date. The magnitude of thiserror cannot be overstated. Though notdispositive, the court must take into ac­count the grossness of the error, and theease with which it might have been de­tected, in determining whether a genuineissue of material fact exists on the ques­tion of deliberate indifference. Anyrenewed motion for summary judgmenton defendants' behalfmust be accompa­nied with an explanation ofhow an errorof this magnitude could have occurredwithout any of the defendants first be­coming aware of, and subsequentlyignoring, the problem." See: Campbellv. Illinois Dept. OfCorrections, 907 F.Supp. 1173 (ND IL 1995).•

October 1996

Attica: Looking Back 25 Yearsby Jaan Laaman

[Editor sNote: Jaan Laaman, Ohio­7political prisoner, served time atAtticain 1971 and is currently incarcerated atu.s.p Leavenworth. Due to a shootingand prison lockdown, this 25-year anni­versary article is being published amonth late. The Attica uprising occurredin September, 1971. Here is a briefchro­nology ofthose events:

July of 1971 - A list of demandsby Attica prisoners is presented to NewYork State Commissioner ofCorrections,Russell Oswald.

August 20, 1971 - George Jack­son, a California prisoner and politicalactivist, isfatally shot by guards at SanQuentin Prison.

August 27, 1971-- Attica prison­ers call a hunger strike in honor ofGeorge Jackson. Only 13 men eat break­fast. Only seven eat lunch.

September 3, 1971 -~ CommissionerOswald visits Attica. He delivers a taperecording for the prisoners, asking formore time to consider their demands.

September 9, 1971 - The spark islit. About 1,500 prisoners from all cellblocks take over both D-yard and D­block. One guard is badly beaten duringthe takeover; 40 prison employees aretaken hostage. The prisoners elect lead­ers and draw up a another list ofdemands. The injuredguard is released·and later dies in a hospital; the otherhostages are protected by the AtticaBrothers and treated well; none arebeaten.

September 11, 1971 - New YorkGovernor Nelson Rockefeller refuses tocome to Attica to aid in the negotiations.Attica prisoner Flip Crowley makes thefamous statement: "Ifwe cannot live aspeople, then we will at least try to dielike men."

September 13, 1971 - BloodyMon­day. Rockefeller orders thousands ofNational Guardsmen, State Police andprison guards to attack the prisoners.The prisoners have no guns. During asix to eight minute period, approximate£v3,000 rounds of shot are fired into D­yard, ki /ling 29 prisoners and 10hostages and wounding 89 others. Af­ter the hail ofgunfire in D-Yard has dieddown, two other prisoners, James

October 1996

Robinson and Kenny Malloy, are sum­marily executed by three state troopersin another part of the prison. Authori­ties tell the press that the 10 hostageswere killed by prisoners who slashedtheir throats. A utopsies later proved thatall 10 hostages died ofgunshot wounds.]

A ttica. The word conjures upimages of struggle and resis­

tance like few other names, not only inthe U. S. but for countless millions aroundthe planet. Yet as the years go by, many- especially younger people, even thosebehind prison walls - are less and lessfamiliar with what happened there.

So on this twenty-fifth anniversaryof the uprising and bloody state massa­cre, let me quote from a statement thatsome of the Attica survivors wrote in theweeks following the government's deadlyreconquest of the prison. "These broth­ers whose lives were taken by Rockefellerand his agents did not die in vain. Why?Because the uprising in Attica did notstart here, nor will it end here."

I was released from Attica, maxingout on a parole violation, in the Springof 1971. I personally knew many of thebrothers who rose up and counted someof the leaders and spokesmen as closefriends.

The period lcadingup to the risingwas filled with a mounting rejection bythe prisoners ofbrutal conditions ofcon­finement. It was also a time of growingunity, of serious pulling together acrossnational, religious and age lines. Menwere coming together, discussing con­ditions, underlying causes, and possiblesolutions. Study groups were set upamong the most serious prisoners, andrevolutionary insight and ideologyguided the way to clearer understandingof how and why an Attica could exist in1971 in the U.S.A.

The government's old stand-by di­vide and conquer tactic was working lessand less, and as I left friends and com­rades that May morning, we realized thateither some resolution to the most hor­rendous conditions had to occur orserious struggle would soon be jumpingoff.

12 Prison Legal News

Jail Guards File Suit

It was not simply about bad food orbrutal treatment. It was more fundamen­tal, about the oppressed, those withoutpower, about refusing to accept injusticeany longer. It was tied into the Viet­namese farmers who at that time wereresisting U.S. B-52 's. Historically it wasconnected to African slaves plotting andacting against the enslavers, to NativeAmerican people resisting settler occu­pation and atrocities, to the Puerto Ricanand other colonized nations' undyingthirst for liberty. In its essence, it wasan extreme case of poor and workingpeople stuck on the bottom of an unjustsystem, standing up, refusing to acceptit any longer and fighting back. And itcontinued and continues on even afterthe Attica Brothers' noble and coura­geous words and their stand in D-yardduring those September days, 9th - 13thof 1971.

Recent prison uprisings fromLucasville, Ohio to the multiple federalprison uprisings last fall are but somemodern examples. On a broader level,the continuing struggles from the IRAguerrillas in Ireland, to the Shining Path!Communist Party in Peru, to the indig­enous peasant guerrilla uprisings inMexico (to name just a few) are all partof this Freedom Struggle.

Attica was a bright light, a searingbeacon showing that even the most op­pressed in the tightest of conditions canrise up. It was also a blood-drenchedreminder that the American governmentwill fight against Peoples' quests for jus­tice and freedom and is willing tocommit unspeakable atrocities to holdonto its power.

The aftermath of Attica saw beat­ings, torture, transfers, legal actions; inother words, much of the usual staterepression. But it also brought aboutlonger-term changes, including somemeaningful ones, like family/conju­gal visits throughout NY Stateprisons.

History shows us that even reform­ist halfway decent changes only occurthrough hard and costly struggle. Butnothing remains stationary. The manyprison rebellions during that period, ofwhich Attica was the most well known,resulted in some real improvements aswell as a lot of meaningless changes.Recently, and this is true across the coun­try, a lot ofthe improvements made then

Prison Legal News

have been taken away. The "tough oncrime - no frills" mentality of the gov­ernment is stripping prisoners of moreand more, even as huge increases occurin the prison population.

It's as simple as this: if We thePeople aren't pushing them, they imme­diately begin pushing us back - all theway back to servitude and slavery, andthat's regardless of race or nationality ifyou are a prisoner.

F ive jail guards, disciplined forthrowing a blanket over the head

of a mentally ill detainee and chokinghim into a coma, have sued the SantaClara (Calf.) County Department ofCor­rection and its two highest officials,claiming that they were unjustlyscapegoated. The lawsuit, filed April29, 1996 names as defendants DOC Di­rector Daniel Vasquez and his topassistant, Robert Conroy. The plaintiffsare former sergeants Mitch Conner andSteve Gong, who were demoted, andthree other guards who were sus­pended, Orin Romney, Michael Cote,and David Alves.

The suit stems from a July, 1995,incident which began shortly after 38­year-old Joseph Leitner, a manicdepressive, was arrested on minorcharges and delivered to the jail. In theircomplaint, the five guards contend thatthey were following "standard proce­dure" for handling mentally disturbeddetainees. The guards forcibly re­strained Leitner, wrapped his head ina blanket when he began spittingblood and twisted the blanket aroundhis neck.

The guards then carried Leitner tothe psychiatric ward and secured himface-down on a restraint table. He laythere motionless for more than five min­utes before anyone noticed that he wasnot breathing. Leitner was left coma­tose and suffered severe brain damage.He is expected to require care for the restof his life.

Two psychiatric nurses were firedand their supervisor was forced to resignover the incident. A September grandjury found no evidence of criminal wrongdoing by any ofthe DOC employees. Thecounty settled a lawsuit with Leitner's

13

So, like the Attica survivors said, itdidn't begin or end at Attica - but Atticais a good and necessary place to remem­ber the fallen, recognize the enemy, andcontinue our Freedom Struggle, more de­termined than ever.

Oppressed classes - people and op­pressed nations united in battle againstthe real enemy - using all methods ofstruggle that are called for - REMEM­BER ATTICA! The future is ours tocreate.•

family for $1.7 million and banned theuse ofblankets under similar conditions.

The five guards contend thatVasquez and Conroy issued press re­leases and made statements that"wrongfully, unfairly and untruthfully"put the blame on them for Leitner's con­dition. As a consequenCe, they say theirreputations have been hurt and their ca­reers seriously injured. They also claimto have been subjected to "tremendousmental and emotional stress, anguish andhumiliation." Each of the five guardsseeks $1 million in punitive damages aswell as compensation for lost wages andthe cost of counseling.

Santa Clara County was recentlyfeatured in the July '96 issue of PLN[See: Mysterious New Syndrome Discov­ered]. In January, 1996, the CountyBoard of Supervisors issued a report de­scribing a newly discovered medicalcondition: Sudden In-Custody DeathSyndrome. The report cited "risk fac­tors" including "those who have justengaged in a violent struggle, sometimeswhile resisting arrest; who do not re­spond to pepper spray or pain ­compliance holds; have been handcuffedwhile lying in a prone position, espe­cially face-down; who are drunk ordrugged, over 50 years old or overweight;and those who exhibit a period of si­lence."

Not mentioned as a risk factor in thereport was "having a blanket thrown overthe prisoner's head and twisted tightlyaround his neck." Perhaps that is becauseLeitner didn't actually "inexplicably die"in custody; he merely suffered permanentbrain damage.•

Sources: San Jose Mercury News,San Francisco Chronicle

October 1996

Fifth Circuit Applies New Standard to Detainee Claims

The court of appeals for the fifthcircuit has significantly weak­

ened the constitutional protectionsafforded pretrial detainees by adoptinga new standard affording significantlyless protection than prior supreme courtdecisions had mandated. Haley Harecommitted suicide while in the Corinth,MS jail after being arrested on a pettylarceny warrant. Hare's family sued thecity for her death claming they violatedher constitutional right to medical careand protection from suicide. The trialcourt held there were genuine issues offact requiring a trial and denied bothparties' motion for summary judgment.The defendants appealed, claiming theywere entitled to qualified immunity. InHarev. CityojCorinth, 22F.3d612(5thCir. 1994) the appeals court dismissedthe appeal. That ruling was later reis­sued under a new theory at 36 F.3d 412(5th Cir. 1994).

This ruling by the fifth circuit ap­peals court, en banc, follows and it setsa new standard for all claims brought bypretrial detainees and should be studiedby anyone litigating such a claim in thefifth circuit. [Editor's Note: As a practi­cal matter PLN generally does not reportjail/prison suicide cases because they arenot litigated by pro se litigants, for obvi­ous reasons. The implications of thisruling go far beyond jail suicide casesand will apply to all claims brought byjail litigants.]

In its ruling the court gives a de­tailed explanation of the supreme court'sruling in Bell v. Wolfish, 441 US 520,99 S.Ct. 1861 (1979) which held thatpretrial detainees cannot be punished atall, and how it has been applied to claimsbrought by pretrial detainees. In theorypretrial detainees, who have not beenconvicted of any crime, retain greaterrights than convicted prisoners who maybe punished, but not in a cruel and un­usual manner. In reality few if any jailsseparate convicted prisoners from theunconvicted, both are subjected to iden­tical conditions of confinement whichtend to be pretty bad. A good rule ofmeasure being the bigger the jail theworse the conditions. Pretrial detaineesderive their constitutional protectionfrom the due process clause. While con-

victed prisoners derive theirs from the vasive misconduct by other officials,eighth amendment. For prison offi- to prove an intended condition or prac­daIs to be liable under aIr-eighth .. ticeto which the Bell test can beamendment claim the plaintiff must meaningfully applied. Otherwise, in theshow two things: the conduct or dep- absence of such a condition, practice,rivation is objectively serious or rule, or restriction, ajail official's act orunreasonable and the defendants had omission can give rise to constitutionala culpable state of mind, i.e., they liability only if he was culpable, underacted or failed to act knowing harm was an appropriate legal standard, with re­likely to result. See: Farmer v. Brennan, spect to the detainee. We now articulate114 S.Ct. 1970 (1994). Due process that standard."claims by pretrial detainees have not After much discussion the court con­been required to prove a state of mind cluded it would adopt a deliberaterequirement in order to prevail. indifference standard to medical and fail-

The court held that the Bell test ure to protect claims brought by pretrialworks best in jail condition cases chal- detainees. In doing so the court adoptedlenging general conditions, practices, the standard set forth in Youngberg v.rules, or restrictions ofpre-trial confine- Romero, 457 US 307, 102 S.Ct. 2452ment because the jail officials' state of (1982) which involved the mother of amind is not a disputed issue. "In true jail mental patient who suffered injuriescondition cases, an avowed or presumed while involuntarily committed in a stateintent by the state or its jail officials ex- mental hospital. This standard differsists in the form of the challenged from both the Bell test and thecondition, practice, rule or restriction. A Farmer standard because it held thatState's imposition ofa rule or restriction the due process clause entitles "per­during pretrial confinement manifests an sons who have been involuntarilyavowed intent to subject aptetrial de- committedate entitled to more con­tainee to that rule or restriction. siderate treatment and conditions ofLikewise, even where a state may not confinement than criminals whosewant to subject a detainee to inhumane conditions of confinement are de­conditions ofconfinement or abusive jail signed to punish." In DeShaney v.practices, its intent to do so is never- Winnebago, 489 US 189, 109 S.Ct.theless presumed when it incarcerates 998 (1989) the court held that thethe detainee in the face of such state had a duty to provide care to thoseknown conditions and practices. it had deprived of the ability to care forThus, a true jail condition case starts themselves. The fifth circuit appliedwith the assumption that the state these cases to hold: "no constitutionallyintended to cause the pretrial relevant difference exists between thedetainee's alleged constitutional depri- rights ofpretrial detainees and convictedvation. Only with such intentionality as prisoners to be secure in their basic hu­a given is the Bell test useful. ".. - mannee-dsoSincetheSupreme Court has

The court held that the Bell test was consistently adhered to a deliberate in­ill suited to pretrial detainee's claims in- difference standard in measuringvolving episodic acts such as a failure to convicted prisoners' Eighth Amendmentprovide medical care or protect from rights to medical care and protectionviolence. "For the Bell test to apply, from harm, we adopt a deliberate indif­ajailer's act or omission must imple- ference standard in measuring thement a rule or restriction or otherwise corresponding set of due process rightsdemonstrate the existence of an iden- of pretrial detainees."tifiable intended condition or practice. The court held that the eighthIf a pretrial detainee is unable to point amendment subjective deliberate indif­to such an established rule or restric- ference standard articulated in Farmertion, then he must show that the jail should be applied to the claims broughtofficial's acts or omissions were suf- by pretrial detainees under the due pro­ficiently extended or pervasive, or cess clause. The court reached thisotherwise typical of extended or per- conclusion by stating "That pretrial de-

October 1996 14 Prison Legal News

Evidence Required for Disc. SanctionSandin Questioned

tainees may have more protections orrights in general, however, does notmean that they are entitled to greaterprotection of rights shared in commonwith convicted inmates.... For purposesof measuring constitutional duties, ourcase law and the teachings of the Su­preme Court indicate that there is nolegally significant situation in which afailure to provide an incarcerated in­dividual with medical care orprotection from violence is punish­ment yet is not cruel and unusual. Thefact of conviction ought not make one

A federal district court in Indi­~na refused to dismiss a

prisoner's habeas corpus petition chal­lenging his disciplinary segregationbecause it was not clear what constituteda deprivation sufficient to invoke dueprocess. A hearing officer's failure toindicate the evidence relied on could vio­late due process if there was a dueprocess liberty interest in remaining freefrom segregation.

Leon Thomas, an Indiana state pris­oner, was infracted and found guilty ofstabbing another prisoner. As a sanc­tion he was sentenced to three years ofdisciplinary segregation. He filed a writof habeas corpus in federal court (Indi­ana provides no state court review ofprison disciplinary hearings) claimingthat he was denied his right to dueprocess during the disciplinary hear­ing.

The district court dismissed Tho­mas' claims that the hearing officer'srefusal to call witnesses on his behalforuse a preponderance of evidence stan­dard violated due process. The courtheld that the disciplinary officer's re­fusal to explain their reasons fortheir findings of fact violated hisright to due process. There were nofirsthand witnesses to the stabbingand no informant testimony wascited. The court was troubled by thefact that Thomas denied committing theattack and his denial was bolstered bythe victim and two other witnesses."Although the CAB is entitled to re­ject recanted statements, it must have

Prison Legal News

more amenable under the constitution tounnecessary random violence or suffer­ing, or to a greater denial ofbasic humanneeds."

Applying that standard to the factsin this case the court vacated the lowercourt ruling and remanded it to the lowercourt to determine whether the defendantjail officials had actual subjective knowl­edge of the risk posed by jail conditionsto Hare but then responded with deliber­ate indifference to that risk. See: Hare v.City of Corinth, MS, 74 F.3d 633 (5thCir. 1996)(en banc).•

the statement in evidence before it canreject the statement." The state arguedthat Thomas's due process claims mustfail in light ofSandin v. Conner, 115 S. Ct.2293 (1995) which held that prisoners'retain a due process liberty interest onlyin matters which implicate the length oftheir sentence or imposes an "atypicaland significant hardship" in relationto the ordinary incidents of prisonlife. The court noted that while somecourts have taken Sandin to mean thatdue process is purged from all disciplin­ary segregation proceedings, it was notone of them.

The court focused its inquiry on theprison conditions Thomas was subjectedto. While in Sandin the prisoner facedonly 30 days in segregation Thomas wasfacing 3 years. The court noted that tofind conditions to be "atypical and sig­nificant" it must first know what is"typical" in prison life and what consti­tutes "ordinary incidents of prison life."There is difficulty answering thisquestion because Sandin provided noguidance in the mater and it is an in­herently subjective question. Thecourt held that the record was in­sufficiently developed to decidewhether Sandin was dispositive ofthe due process question. This casewill be useful to anyone litigatingthe issue of whether or not Sandinapplies to disciplinary cases involv­ing only segregation. See: Thomasv. Newkirk, 905 F. Supp. 580 (ND IN1995).•

15

MCC Settlement Upheld

T he court of appeals for the sev­enth circuit held that a district

court properly approved a settlementagreement dismissing a prison condi­tions class action suit over the objectionsof numerous plaintiffs. In 1991 prison­ers at the Maximum Control Complex(MCC) in Indiana filed suit challengingnumerous aspects of the control unit.[See PLN, Vol. 3, No.8] Afterlengthy negotiations between classcounsel and the Indiana DOC the suitwas settled and approved by thecourt. See: Taifa v. Bayh, 846 F.Supp. 723 (ND IN 1994) [PLN, Vol.6, No.9]. Five prisoners objected tothe settlement and appealed claimingthe district court abused its discretion inapproving the settlement.

The appeals court held the districtcourt was well within its discretion whenit approved the settlement in this case.At the outset the court noted that "fed­eral courts naturally favor the settlementof class action litigation." However,where constitutional claims are involvedthe public interest may conflict with theparties' desire to settle a case and courtscannot approve a class actions settlementthat either initiates or authorizes clearlyillegal conduct.

Using that as a starting point thecourt analyzed the objecting plaintiffs'claims and rejected them. The claims re­jected were that Indiana law did notauthorize the creation of a control unitprison, does not allow for indefinite seg­regation; and that prisoners' stay in theMCC could be prolonged by prisonofficials without adequate due pro­cess protections. The appeals courtheld it was unlikely the prisonerswould have done better at trial thanthey did in the settlement. In this casethirteen percent of the plaintiff classfiled objections to the settlement butcourts have approved settlements ob­jected to by 45% of the plaintiff class. Itappears the prisoners' objections willhave to be pursued in individual litiga­tion. It remains an open questionwhether the these claims will be foundwaived as a result ofthe settlement. See:Isby v. Bayh, 75 F.3d 1191 (7th Cir.1996).•

October 1996

Pepper Spray Madnessby Lynn Wilson

injuries that generate brutality com­plaints.

Echoing advertising by the 200 pep­per spray manufacturers, policemanagers also report that it is "95 per­cent effective in stopping suspects almostimmediately" compared to tear gas orMace at 60 percent. The InternationalAssociation of Chiefs of Police assertsnot only that OC is better "on violent,intoxicated/drugged and mentally ill in­dividuals," but also that it "has notcaused any deaths, even among personswith pre-existing conditions." With thiskind ofpropaganda, it is no surprise thatpepper spray has replaced and surpassedpolice use of Mace on the streets: Virtu­ally every state authorizes it.

[The author is an attorney in pri­vate practice in Seattle, Washington, andafrequent writer on police accountabil­ity issues. She is also on the SteeringCommittee ofthe National Coalition onPolice Accountability. This article firstappeared in the Spring 1996 Issue ofCOVERTACTION QUARTERLY}

I magine that someone has sprayedoleoresin capsicum, a substance

600 times hotter than cayenne pepper,into your face, eyes and nostrils. Imag­ine that while this is happening, yourhands are cuffed behind your back. Oryou have asthma or bronchitis. Or aheart condition. Or you're drunk or justplain upset. Chances are, the pain willbe intense, breathing will become diffi­cult, your eyes will swell into blindness,you will become disoriented and fall tothe ground. Fear and panic will set in.If you are unlucky enough to be in analtercation with the police and you arein restraints on your stomach, you maydie.

Last summer, Javier Trejo didn'thave to imagine. After his wife, Maria,called police to report that he was drunkand abusive, Orange County, California,sheriff's deputies subdued him with pep­per gas and threw him in a holding cell.About an hour later, he was pronounceddead. "I asked the police for help," criedMaria. "I didn't say kill him."

Trejo became one of the 60 in-cus­tody deaths since 1990 in which pepperspray was a contributing factor. De­rived from the cayenne pepper plant,oleoresin capsicum (OC) or pepperspray, was officially introduced intothe US in the 1980s by the Postal Ser­vice as a dog repellent. In 1987, claimingthat it produced no long-term healthrisks, the FBI adopted it as an "officialchemical agent." Ever since, in liquidand foam form, OC has gained in popu­larity among police searching for anon-lethal method of subduing people instreet encounters. They claim that itavoids the major drawbacks of otherchemical agents: It doesn't blow backon those using it and can be washed offwith relative ease. It has the further ad­vantage of not leaving the kinds of

is used not only to control civil unrestand subdue dangerous suspects, but tomete out extrajudicial punishment as akind of street justice. In a Washingtonstate case, a young black man who hadmouthed off to the cops was peppersprayed after being handcuffed. He wasthen left in a patrol car with the heat onhigh for half an hour.

The ACLU has raised additionalconcerns that the number of deaths inwhich OC has been a contributing fac­tor may be much higher than the 60 sofar documented. For example, althoughnone of the autopsy reports for 26 post­spray deaths studied by its SouthernCalifornia branch listed pepper spray asa cause of death, the group concludedthat "documents recovered ... establishthat [California] state scientists havewarned for more than two years that so

CRIME OF PUNISHMENT little is known about residual effects ofWhile there is no question that pep- pepper spray that medical examiners

per spray aerosol is less lethal than a gun may not know what to look for duringand that when used correctly, it causes an autopsy."considerably less physical injury than a It was only in July 1993 that a Northbaton or an attack dog, it is neither as Carolina coroner issued the first US au­effective nor as benign as claimed. Ac- topsy report directly connecting peppercording to Andrea Pritchett ofCopwatch, spray to an in-custody death. It noteda citizens group in Berkeley, California, that Angelo Robinson, a 24-year-old"It's used in addition to other forms of black parolee stopped for disorderly con­force such as guns, batons and mechani- duct, had bronchitis at the time of hiscal restraints, not in their place.... And death. "Officers reportedly sprayedwhen you add it to other force methods, Robinson 10-15 times and then placedpepper spray tends to make a person ac- him in a prone position on the groundtually more difficult to control." Nor, while he was handcuffed, a position thatshe claims, is it likely to reduce exces- has been known to cause death" fromsive force lawsuits against police, since positional asphyxia, in which the weightmany of California's 28 in-custody of the body compresses the chest anddeaths have resulted in wrongful death causes respiratory failure.suits. As the danger becomes better

As for its being benign, the pain, known, more medical researchers arewhich can last up to 45 minutes, is so recognizing OC-related deaths and re­intense that the NationalCoalilion Olr 'p0rtingan alarwjngnationwide increase:Police Accountability (N-COPA) has from two in 1992 to 26 in 1993. In ad­called for monitoring pepper spray as a dition to better documentation, theseform of torture as defined by the United figures indicate the exponential increaseNations Convention on Torture and in pepper spray use by law enforcementOther Cruel, Inhuman and Degrading agents. In one particularly gruesomeTreatment signed by the US last year. incident reported by the National Insti-

After police chiefs in Britain and tute of Justice, police sprayed a youthAustralia tried to add OC to their arse- with so much pepper spray that hisnals, activists argued that it would violate clothes were soaked. When he was laterthe Chemical Weapons Convention. shot with an electric stun gun by police,They cited instances in Israel and Gua- his clothing caught on fire.temala, as well as in the US, where OC

October 1996 16 Prison Legal News

spray is probably not a food or a drugwithin the meaning of FDA legislation,the Consumer Product Safety Commis­sion may be the only federal agency withauthority in this field." As manufactur­ers increase their efforts to push the useof pepper spray in prisons, to "dispersecrowds", and to "facilitate cell extrac­tion," federal regulation is needed nowmore than ever. But given the currentstate of the federal budget, such regula­tion is unlikely. Equally unlikely is thatpolice will voluntarily restrict use. Pep­per spray, despite the risk of death, andprecisely because ofthe instant torture itinflicts, is a weapon of choice.•

Source: Copwatch Report

WEAPON OF CHOICEPEPPERING PRISONSIf misuse is a problem on the street, Local community groups, outraged

it is a disaster in US prisons The De- by the startling increase in pepper spraypartment of Justice (DoJ) and every use, are now calling for accountability.federal court that has looked at its use Copwatch demanded an outright ban onin correctional facilities has found pepper spray after 37-year-old Aaronabuses. This fall, after more than 100 Williams, arrested for disorderly conduct,inmates rioted at the privately-run West died after being beaten, kicked, and re­Tennessee Detention Facility, prison peatedly pepper-sprayed by Sanguards pumped pepper gas into two dor- Francisco police officers, probably whilemitories seized by the prisoners. In late in a handcuffed, horizontal position. Fol­1994, the DoJ Civil Rights Division in- lowing that incident, police commandersvestigated a countyjail in Syracuse, New conceded that officers had violated offi­York, and reported "an unacceptably cial policy against transportinghigh and improper use of pepper handcuffed prisoners lying face downspray ... Nearly every inmate inter- (raising the danger of positional as-viewed told of excessive and phyxia) and had disregarded the warningimproper use particularly when to pay special attention to suspects act- Pepper Spray Unsafe?inmates are not resistant and after ing in bizarre ways. In this, as in other COPWATCH, a citizens' groupthe inmate has been restrained and cases, regulations even when they in Berkeley, CA, has noted anpresents no danger." One suicidal exist - are often ignored by cops wh~ increase of in-custody deaths, and hasinmate in Syracuse was restrained with see pepper spray as a very low level use pointed to pepper spray as possibly caus­three cans of pepper spray. The pris- offorce, well below the baton. ing or contributing to those deaths.oner reportedly died shortly afterward According to Allan Parachini of the According to Berkeley Police Depart-from positional asphyxia. ACLU, which helped draft the San Fran- ment Captain Doran, however, police

More recently, a federal district cisco policy, Williams died because of a officials consider pepper spray a safe al­court judge in Washington State barred "failure of procedure.... Pepper spray ternative to firearms and anthe use of pepper spray in a state juve- never alone causes death but when it is indispensable tool in subduing suspects.nile facility. "[I]t should be used," he combined with other restraints, there is "Officers are often confronted withruled, "only if there is a threat of equal a definite risk of fatality. [I]t can be a violent, dangerous situations," saidor greater harm to others or to a sub- valuable tool in many different situations. Doran. "Until something else comesstantial amount of valuable property The challenge is to set clear standards along, pepper spray is an important toolthan the pain and danger of harm regarding how to use it, in what circum- in subduing a suspect who might other­that the pepper spray presents." Pat stances.... [I]t doesn't serve anyone's wise be a danger to officers or bystanders.Arthur, plaintiffs' attorney in the purposes ... when it is used on people in We're pretty comfortable that it's notcase, emphasized a lack of training: psychiatric distress or on drugs. When harmful to human beings." He cited an"If staff aren't trained in other in- used on these people and combined with FBI study to back up his claim.tervention methods, they resort to a hogtie restraint, you are just asking for Special Agent Thomas Ward over-pepper spray." Calling it "a chemical a fatality." saw the FBI Firearms Training Unit atweapon," she said, "I have seen video- In California, attorneys for victims Quantico, Virginia, for several years.tapes ofkids who are being sprayed. The who died after being pepper-sprayed are Under his direction, the Training Unitpain is so intense: the kid immediately increasingly using product liability produced the 1991 "Quantico Studies,"falls to the floor, screaming. There claims against manufacturers as part of which declared pepper spray a safe, ef­is no question of an injury being suf- their lawsuits. The basis ofthese claims fective weapon for police use.fered." is thatthe manufacturers knowingly sold On February 12, Special Agent

In at least one other federal case a product that was potentially lethal. So Ward pled guilty to accepting $57,000based on the eighth amendment, a South far, however, these claims have been dis- in kickbacks from Luckey Police Prod­Carolina prisoner sued under 42 U.s.C. missed by California courts on the basis ucts, which manufactures one ofthe most§1983 after he was pepper sprayed and that the manufacturers received certifi- widely used brands ofpepper spray. FBIchained to a bare metal bunk for eight cation from a state agency prior to officials are tIyingto determine how badlyhours. The court held that doing so in distributing the spray and that they are Ward distorted the pepper spray studies.those circumstances, without fumi- therefore immune from suit. Two ofthese The American Civil Liberties Uniongating the cell or providing medical cases are currently on appeal and a third, recently called on Attorney General Janettreatment, could only be interpreted involving Aaron Williams death, is pend- Reno to rescind all studies tainted byto constitute "punishment" rather ing. Special Agent Ward and to warn policethan an attempt to quell a distur- Regardless of injuries and even departments across the country not tobance. See: Williams v. Benjamin;n- -de-ath resultil1g from its lise; there is not --- rely onPE! pepper spray research.•F.3d 756 (4th cir. 1996). a single federal agency currently respon­

sible for regulation. "Because pepper

Prison Legal News 17 October 1996

De Novo Review Required of Magistrate's Report

The court of appeals for the magistrate's report in a timely mannereighth circuit held that a dis- and argued there was sufficient evidence

trict court's erroneous statement that no to require a trial on whether staff andobjections had been filed to a prisoners violated DOC policy by smok­magistrate's report and recommendation ing in common areas in his housing unitconstituted prima facie evidence that the exposing him to ETS. The district courtdistrict court did not perform the requi- adopted the magistrate's report andsite de novo review of the report. Larry granted the defendants' summary judg­Grinder and Edward Loetel, Missouri ment motion on all counts. In its rulingstate prisoners at the Moberly Correc- the court noted that "Plaintiffs... have nottional Center, filed suit claiming his filed objections."eighth amendment rights had been vio- District courts are required to reviewlated due to exposure to Environmental de novo objections to magistrate's re­Tobacco Smoke (ETS) within the prison. ports. In the absence of evidence to theThe defendants moved for summary contrary a reviewing court, at least in thejudgment on qualified immunity eighth circuit, will presume the reviewgrounds, claiming that until the supreme was properly done. "That the districtcourt decided Helling v. McKinney, 113 judge could have been laboring un­S.Ct. 2475 (1993) which identified ex- der a mistaken belief that only clearcessive exposure to ETS as a violation error review was required is suffi­ofprisoners' rights, the law on this topic cient to make out a prima facie casewas not clear. They also claimed their that de~nover re-viewwas not per~

post Helling conduct did not violate the formed. Because appellant has madelaw. a showing that de novo review was

The evidence showed thaf the 'notperformed, and no evidence ex­prison ventilation system was in poor ists to demonstrate that there was derepair and frequently malfunctioned; novo review, the case should be re­air filters were not installed; smoke manded to the district court." Becauseentered the plaintiffs' cell and they such an error existed in this case, thesuffered eye, nose and throat irrita- appeals court remanded it back to thetion, respiratory illness and an district court to consider the objectionsoverall decline in health. The mag- to the magistrate's report. The court in­istrate held that prior to Helling the structed the lower court to considerdefendants were entitled to qualified whether the circumstantial evidence inimmunity. The magistrate recommended -i:hiscaseestablishedagenuiaeissuethat the suit be dismissed regarding the of material fact regarding the defen­post Helling claim because the plaintiffs dants' deliberate indifference on thedid not show that prison officials had a plaintiffs' eighth amendment claims.subjective intent to violate their rights. See: Grinderv. Gammon, 73 F.3d 793Loetel filed his objections to the (8th Cir. 1996).•

for his crime, the process of creditinghim with time served is no longer an 'ar­tificial and meaningless exercise... ' Wehave found no circuit which denies creditfor time served under these circum­stances. Accordingly, we now hold thatthe Equal Protection Clause mandatesthe grant of full credit toward the maxi­mum term ofMr. Hall's sentence for thetime he spent incarcerated prior to sen­tencing due to his indigency." See: Hallv. Furlong, 77 F.3d 361 (10th Cir.1996).•

conclude that Mr. Hall's petition presentsa justiciable controversy."

The court cites numerous cases hold­ing that defendants may not bediscriminated against on the basis of aninability to pay bail, fines or court costs.''It is impermissible, under the EqualProtection Clause, to require thatindigents serve sentences greater thanthe maximum provided by statute solelyby reason of their indigency. When anindigent receives the maximum sentence

Indigents Entitled to Full Credit for Pretrial DetentionThe court of appeals for the tenth

circuit held that a defendant who is in­carcerated prior to trial due to indigency(unable to afford bail) must be given fullcredit towards the minimum and maxi­mum sentences he is convicted of. JamesHall, a Colorado state prisoner, was ar­rested in 1977 and charged with sexualassault. Unable to post bail, he spent 219days in jail before pleading guilty andbeing sentenced to an indeterminate sen­tence of 27 to 50 years. The trial courtcredited hall with 84 days towards theminimum term of his sentence but nonetowards the maximum sentence. Hall ex­hausted his state remedies claiming hewas denied his right to equal protectionof the law when his indigency causedhim to remain incarcerated prior to trialand he failed to receive full credit forthe time served against both his mini­mum and maximum sentences. The statecourt denied relief and Hall filed a writof habeas corpus in federal court whichwas denied. The federal court also heldHall's claim was not ripe for review be­cause he had not yet served the maximumsentence imposed.

The appeals court reversed and re­manded the case to the lower court. Thecourt rejected the lower court's determi­nation that defendants must first servethe maximum sentence imposed beforethey can challenge illegal confinementpractices. " ....The fact that Mr. Hallmight receive early release is irrelevantto a determination of whether his con­stitutional rights were violated in thisinstance... The fact that indigents canreceive good time credits, just as non­indigents, does not detract from theviolation of equal protection which mayoccur if indigents who receive a maxi­mum sentence do not receive credit fortime served. Good time credits are 'fixedby statute,' just as is the maximum termfor a given offense." Having to wait un­til a maximum sentence is served"smacks of the prematurity doctrine, re­jected by the United States SupremeCourt in Peyton v. Rowe, 391 US 54, 64,88 S.Ct. 1549,1554-55 (1968); see alsoPreiser v. Rodriguez, 411 US 475,487­88, 93 S.Ct. 1827, 1835-36 (1973)(discussing applicability of Peyton toclaims involving good time credits). We

October 1996 18 Prison Legal News

Texas Shaving RuleDeclared Illegal

A federal district court in Texas./""\.ruled that a prison rule requir­

ing prisoners be clean shaven violated aMuslim prisoner's religious rights andenjoined the rule. Johnson Lewis, a Texasstate prisoner and a Muslim, filed suitclaiming that prison regulations requir­ing that all Texas prisoners be cleanshaven violated his religious rights un­der the Religious Freedom RestorationAct (RFRA). During a hearing Lewisand a Muslim chaplain employed by theprison system testified. The chaplainclaimed that no Islamic tenet requiredthat male Muslims wear beards but ac­knowledged that some adherents believethat Islam requires its foHowers to fol­low the Sunnah, or way of the prophets,

- which includes wearing a beard.

Parolee's Jail Rights Discussed

The court of appeals for the fifth the detainee for the pending charge. did not abuse its discretion in dismiss­circuit addressed, for the first Thus, an inference that governmental ing the suit. In a footnote the court

time ever, the question of what rights intent was punitive is equivalent to an observed that this ruling does not applyare retained by a parolee who is charged inference that the challenged condition to people who are reincarcerated afterwith a crime and is also held on a is unconstitutional. However, such an they have served their full sentence ordetainer. Steven Hamilton was on parole inference is not warranted in the case of paid their full fines, i.e., determinate sen­for various sex offenses when he was the typical parolee." That is because the tence offenders or those discharged fromarrested for new offenses. While await- parolee's detention is only triggered by a parole. The court also noted that, on pa­ing trial on the new charges his parole new arrest but is justified by the prior per at least, parolees retain at least aswas revoked. Hamilton filed suit claim- conviction. "For detained parolees, the many rights as convicted prisoners.ing police had fabricated evidence due process right to be free from punish- While this is a novel ruling it sets aagainst him and that jail conditions de- ment for a pending charge is not confusing standard which, in practice,nying him visits, recreation,-mail, legal --- equivalent to -the right -to be free frorn.--wilLbe.difficult to apply. Generally mostmaterials, phone access, sheets and punishment altogether. In such cases, a jails hold pretrial detainees, convictedshowers violated his rights. The district finding that the government intended to offenders awaiting transport to state pris­court dismissed his suit as frivolous and punish a detained parolee is not equiva~ -- OilS; convicredwjsdemean3htsand felonsthe court of appeals affirmed. lent to a finding that the government serving sentences of less than one year

The court quickly disposed of his § intended to punish the detained parolee and parole violators together in the same1983 claims against police by noting for a pending charge. Thus, an inference conditions. This ruling sets forth threethey were barred by Heck v. Humphrey, that government intent was punitive is different standards to be applied to jail114 S. Ct. 2364 (1994) unless he could not equivalent to a finding that the chal- conditions, this one for parole detainees,show his underlying conviction had been lenged condition is unconstitutional." Bell for pretrial detainees and Rhodes v.reversed, invalidated or otherwise called "We thus apply Bell:S standard to Chapman and its eighth amendmentinto question. Rather than simply ad- detained parolees only to the extent that standard for convicted prisoners. This isdress whether Hamilton's jail conditions we recognize that a parolee arrested for likely to lead to confusing and disparateclaims should be analyzed under the BeII a subsequent crime has a due process results as jail detainees litigating identi­v. Wolfish, 441 US 520, 99 S.Ct. 1861 right to be free from punishment for the cal conditions and policies may well(1979) standard that applies to pretrial subsequent crime until convicted of the wind up with different rulings. Anotherdetainees and holds that they may not subsequent crime. Like the pretrial de- interpretation is that the court wanted tobe punished at all and jail conditions tainee in Bell, the detained parolee may dispose ofa suit by a pro se prisonerandmust be reasonably related to the goal establish a claim for unconstitutional rather than directly contradict Bell it for­of pretrial detention, the court instead conditions ofconfinement through direct mulated this new standard for parolecreated a new standard to be applied to evidence of an expressed intent by de- detainees. See: Hamilton v. Lyon, 74 F.3dclaims by detained parolees. This is an tention facility officers to punish him for 99 (5th Cir. 1996).•issue that has not been addressed by any the crime for which he has been chargedcircuit court or the supreme court. In but not yet convicted. However, a courtRankin v. Klevenhagen, 5 F.3d 103 (5th may not permissibly infer that a condi­Cir. 1993) the court held that both the tion of confinement challenged by aFourteenth and Eighth amendments detained parolee is unconstitutionalwere implicated in claims by detained merely because the government fails toparolees but now the court distinguishes come forward with evidence that thethat ruling by stating it applies only to challenged condition is reasonablyexcessive force claims and not conditions related to a legitimate governmental in­of confinement Claims. terest. Bell tells us nothing about whether

The court held a distinction was re- conditions of confinement that may notquired because detainees have not been be constitutionally imposed upon 'detain­convicted of a crime and are merely ees qua detainees' '" may constitutionallyawaiting trial, such detention is sup- be imposed upon detained parolees."posed to be the exception. While - Thecourtheldthatnormally itparolees are routinely detained prior to would remand the case for factual devel­trial and the detention can be considered opment but would not do so in this case _part of the original conviction, not a new because none of the conditions com­punishment. When a pretrial detainee plained of by Hamilton: that he waschallenges jail conditions " ...a finding denied visits, phone access, recreation,that the government intended to punish mail, legal materials and showers for athe detainee is equivalent to a finding three day period, gave rise to any consti­that the government intended to punish tutional claims. Thus, the district court

Prison Legal News 19 October 1996

Missouri Haircut RuleUpheld Under RFRA

Shaving (Continued)

The court analyzed Lewis's claimunder the RFRA, 42 U.S.c. § 2000bb­l(b), and found that the rule requiringall prisoners to be clean shaven was asubstantial burden on Lewis's religiousrights, thus violating the RFRA. Thecourt held that Lewis had met his bur­den ofproof, i.e., that his religious beliefwas sincere and the religious basis of theburdened belief. "In the present case theburden placed upon plaintiff's religiouspractice is total. Plaintiffdesires to growa beard for religious reasons but may notwithout incurring penalties under theprison's grooming regulations.... Withrespect to plaintiff's desire to wear abeard, then, the prison grooming regu­lation is a burden of the highest order."

At the hearing the prison wardentestified that a quarter inch beard wouldpose no threat to prison interests in iden­tifying and searching prisoners andLewis stated that he would accept aquarter inch beard as a welcome accom­modation to his religious beliefs. Suchbeards are allowed for Texas prisonerswith medical problems that prevent themfrom shaving.

The court held that the defendantswere entitled to qualified immunity frommoney damages because the case in­volves rights created by statute whichhave not yet been interpreted by the fifthcircuit or the Supreme Court. The courtalso held that an injunction was not ap­propriate on the facts in this case becauseLewis was allowed to maintain a quar­ter inch beard for medical reasons duringthe pendency of this action and had suf­fered no harm as a result. But declaratoryjudgment was entered stating: "Accord­ingly, for the reasons set forth above,plaintiff is entitled to a declaratory judg­ment that the defendants' enforcementof the TDCJID grooming policy, to theextent that it prevents plaintiff fromgrowing a lit inch beard for religious rea­sons, violates plaintiff Johnson L.Lewis's statutory right to freely exercisehis religion." With the publication ofthisruling Texas prison officials may nolonger be entitled to qualified immunityifthey seek to enforce their shaving rulesagainst prisoners whose religious beliefsrequire that they wear beards. See: Lewisv. Scott, 910 F. Supp. 282 (ED TX1995).•

October 1996

The court of appeals for theeighth circuit reversed a federal

district court ruling which had held thata Missouri DOC rule requiring prison­ers to have short hair and banning sweatlodges violated the Religious FreedomRestoration Act (RFRA). In the June,1995 issue ofPLNwe reported Hamiltonv. Schriro, 863 F. Supp. 1019 (WD MO1994) where the court made its ruling infavor ofMark Hamilton, a Native Ameri­can prisoner. In its ruling the districtcourt issued an injunction forbidding theMO DOC from enforcing its short hair­cut regulation and also requiring prisonofficials to establish a sweat lodge pro­gram.

The appeals court analyzedHamilton's claims under the first amend­ment and held that he had failed to meethis burden of proof under 0 'Lone v. Es­tate ofShabazz, 482 US 342, 107 S.Ct.2400 (1987) [which was explicitly over­ruled by the RFRA's passage]. Thedistrict court decided the claims solelyon the RFRA, the appeals court ex­plained it was going to rule on theconstitutional claims as well because thelower court had indicated it would haveruled in Hamilton's favor under this stan­dard as well.

Turning to the question of whetheror not the rules in question violated theRFRA the court decided they did not.The court assumed that the rules substan­tially burdened Hamilton's right to freeexercise of his religion. The court heldthat whether the regulation deprivedHamilton of his rights was a question oflaw subject to de novo review on appeal.The court held that while congress in­tended to revoke 0 'Lone "it did notintend to impose a more rigorous stan­dard than the one applied prior too 'Lone. Therefore, pre-O 'Lone case lawprovides useful guidance on how to in­terpret the test in RFRA and how toresolve the present case."

Prior challenges to prison haircutrules and sweat lodge denials had re­sulted in the practices being upheld bythe courts. The court held that the legis­lative history of the case and precedentrequires courts to give due deference toprison officials in establishing regula-

20

tions to maintain order in prisons. Ap­plying that standard to this case thecourt held that the defendants hadshown their policies were the leastrestrictive means to uphold theircompelling interest in prison safetyand security. [Editor s Note: In thiscase, like others involVing hairlength rules the defendants claimshort hair is necessary to preventprisonersfrom hiding weapons and con­traband in their hair. It is worth notingthat no published case has ever docu­mented an incident of such itemsaduaUy being concealed inaprisoner shair. The courts have always routinelyaccepted this argument despite the pau­city ofevidence to support it.] The courtcites several post-RFRA cases uphold­ing prison haircut rules.

Likewise, the court also held thatthe RFRA did not require prison offi­cials to provide a sweat lodge. In doingso it distinguished this ruling fromWernerv. McCotter, 49F.3d 1476 (10thCir. 1995) because that case was re­manded to the lower court for factualdeterminations. "Although RFRAplaces the burden ofproduction and per­suasion on the prison officials, once thegovernment provides this evidence, theprisoner must demonstrate what, if any,less restrictive means remain unex­plored." In this case the defendants saidthey were willing to allow a pipe cer­emony on prison grounds, in the open,where the prisoners could be observed.But Hamilton rejected that as unaccept­able.

The court's ruling in favor of thedefendants was qualified, noting thateven though on the facts in this case thedefendant prison officials were entitledto judgment, different facts could requirea different outcome. "Our decision doesnot, however, foreclose the possibilityofa successful sweat lodge claim underdifferent circumstances. Furthermore,we encourage prisons to accommodatethe religious needs of iIimates,inciud­ing American Indian inmates, byproviding facilities beyond the bareminimum." See: Hamilton v. Schriro, 74F.3d 1545 (8th Cir. 1996).•

Prison Legal News

No Right to Assistance in Family Law

Retaliation for Grievance CommitteeParticipation Requires Trial

determined to meet constitutional mus- sel was mandated only when, if the partyter for prisoners who were literate and loses, they will be deprived oftheir physi­able to understand English. "The Consti- cal liberty. Thus, the court held thetutiondoesnot require special legal helpfrom decision of whether or not to appointthe state in cases involving 'parental counsel for indigents in parental rightsrights' as asserted by plaintiffs." cases must be made by the state trial

The court specifically rejected the judges. The court held that if free citi­plaintiffs' claim that women prisoners zens, under Lassiter, have no right to freehave a greater need than male prisoners counsel in their parental rights cases,to assistance in the child care area. "That then prisoners have no such right.female inmates may have a greater "We conclude that defendants areclaimed 'need' for such legal assistance .. notoonstitutionally required to providethan male prisoners does not establish a plaintiffs free legal assistance in paren­basis for the asserted constitutional vio- tal rights matters, but that suchlation argued by them." The court noted assistance is only required in post-con­that counsel is appointed only in extraor- viction, habeas corpus, and civil rightsdinary cases brought by pro se prisoner matters involving the prisoner's custo­litigants regardless of the plaintiff's sex. dial situation or constitutional claims

The court relied on the supreme personally involving the prisoner." See:court's ruling in Lassiter v. Department Glover v. Johnson, 75 F.3d 264 (6th Cir.ofSocial Services, 452 US 18,101 S.Ct. 1996). [Note: This case was decided2153 (1981) where that court held coun- before Lewis v. Casey.].

The court ofappeals for the sixthcircuit held that prison officials

are under no obligation to provide pris­oners with the assistance of counsel inchild custody cases. This is the latest in­stallment in the ongoing saga of Gloverv. Johnson, a class action suit filed 20years ago by women prisoners in Michi­gan claiming they had been deniedaccess to the courts. Among the manyorders issued over the years was one inwhich the district court ordered the MIDOC to contract with Prison Legal Ser­vices to provide the prisoner-plaintiffswith legal services, including in childcustody disputes. In 1991 the DOC toldthe district court they planed to discon­tinue funding for such services becausenon-incarcerated citizens were not en­titled to receive such assistance at nocost. In the December, 1995 issue ofPLNwe reported Glover v. Johnson, 850 F.Supp. 592 (ED MI1994) where the courtheld the defendants in contempt find­ing they had willfully violated the 1991order and entered an injunction enjoin­ing them from changing or modifyingthe PLS staff without seeking leave ofthe court. The defendants appealed andthe court of appeals reversed and re­manded.

The appeals court held the districtcourt had abused its discretion in find­ing the defendants in contempt becausethere was no order explicitly defining theareas of law the MI DOC had to fund.In analyzing the prisoners' right of ac­cess to the courts claims the court notedthat under Bounds v. Smith, 430 US 817,97 S.Ct. 1491 (1977) states have an af­firmative obligation to assist prisonersin preparing petitions to the court butthe means used to satisfy that obligation,either law libraries in prison or ap­pointed counsel, is left to the states todecide. In this case the court refused todecide whether parental rights were fun­damental rights requiring appointedcounsel or whether they warranted dif­ferent treatment from civil rights andhabeas corpus actions. "The civil courtsthat decide legal questions in which stateprisoners are interested are the propertribunals to decide due process and le­gal representation questions." The courtnoted that the prison law library wherethe women were incarcerated had been

Prison Legal News

A federal district court in NewYork held that a prisoner who

serves on a prison grievance committeecannot be retaliated against for assistingother prisoners in filing grievances. Jef­frey Alnutt, a New York state prisoner,filed suit claiming his first amendmentrights were violated when prison officialsretaliated against him after he was electedto the Inmate Grievance Resolution Com­mittee (lGRC). Prior to his electionAlnutt had never received an infraction.After the election guards began to sys­tematically harass him, call him names,subject him to drug tests and deprive himof food, bedding, clothes and mail. Onthe defendants' motion for summaryjudgment the court dismissed Alnutt'sclaims that he had been given a false dis­ciplinary charge, denied due process atthe hearing and was transferred to an­other prison.

The court held that Alnutt had stateda claim requiring a trial concerning re­taliation for his IGRC activities. Thecourt held that IGRC activity was pro­tected by the first amendment. Until nownumerous courts have consistently heldthat individual prisoners who file admin­istrative grievances are entitled to firstamendment protection. "Admittedly, thefacts of the present case are somewhat

21

different from some of the cases involv­ing an inmate's right to petition thegovernment. However, the principles es­tablished in those cases support theconcept that Alnutt has a protected FirstAmendment right to engage in his du­ties as IGRC representative without fearof reprisal or retaliation." The court dis­cussed the role and functions of the IGRCand its appointees.

"It could not be seriously argued thatthose inmates who actually filed griev­ances with the IGRC were not exercisingtheir First Amendment rights to peti­tion the government for redress ofgrievances. It would be curious indeedfor this Court to recognize the rights ofinmates to petition for redress of griev­ances without fear of retaliation but denyAlnutt the same right in connection withhis role in reviewing inmate grievancesand ruling on them. In my view, as IGRCrepresentative, Alnutt has a constitu­tional right to be protected againstretaliation by state officers who are notpleased with the activities engaged in anddecisions made by Alnutt as IGRC rep­resentative." The court held that Alnutthad presented sufficient facts to requirehis retaliation claim to be presented to ajury for resolution. See: Alnutt v. Cleary,913 F. Supp. 160 (WD NY 1996).•

October 1996

Court Responsible for Jury Demand

The court of appeals for the sec­ond circuit held that checking

a box on a civil cover sheet constituted atimely demand for a jury trial. TyroneWright, a New York state prisoner, filedsuit claiming he was beaten by prisonguards. When Wright filed suit he didnot include a jury demand in his com­plaint, but he checked a box on the civilcover sheet indicating he wanted a jurytrial. The case eventually proceeded totrial before a magistrate, who ruled infavor of the guards, holding that Wrighthad waived his right to a jury trial. Theappeals court reversed and remandedholding Wiigntwas entitled loa jury·trial.

In Favorsv. Coughlin, 877 F.2d219(2nd Cir. 1989) the court held that a prose plaintiffwaived his right to a jury trialwhen he failed to timely serve his jurydemand on the opposing parties. LikeWright, Favors had checked the box onthe cover sheet but had not included it

in his complaint. "Despite the similarity with these confusing forms, it seems onlyto Favors, we find that the outcome of fair that the court be required to readWright's case is determined by his in them carefully for a jury demand and toforma pauperis status. By granting serve the civil cover sheet ifit is the onlyWright leave to pursue his § 1983 claim place the demand appears." Courts arein forma pauperis, Magistrate Smith required to assume a presumptionshifted the responsibility fot servtngthe .. againstawaivcr ofparties' right to ajlLTYcomplaint from Wright to the court.." trial.Because the marshals service served the "Given that the responsibility forcomplaint and summons the court held review and service ofWright's complaintthat Wright did not waive his right to a lay with the court, we hold that Wright'sjury trial. civil cover sheet indicating his jury de-

The court held that because the dis- mand should have been served by thetrict court was required to review the court on the other parties. When a pris­complaint on its merits, the court should oner is granted in forma pauperis statushave recognized Wright's desire for a for a § 1983 claim in the Northern Dis­jury trial through service of the cover trict of New York, he is justified insheet. "Second, the forms Wright was re- relying on the court to interpret its ownquired to use to make his complaint were forms and to provide notice of a jury de­misleading in that they provided no place mand through appropriate service." Theon the actual complaint form to request case was remanded to the lower court fora jury trial specifically: the only place to a jury trial on the merits. See: Wright v.do so was on the civil cover sheet. Given Lewis, 76 F. 3d 57 (2nd Cir. 1996).•that the court itself supplied prisoners

PI Granted in Haircut ClaimA federal district court in Ken­

fitucky granted a motion for aPreliminary Injunction (PI) to a HasidicJew whose claimed his religious beliefswere violated when prison officialsforced him to cut his hair. Several Ken­tucky state prisoners in ProtectiveCustody (PC) filed suit challenging vari­ous aspects of their confinement. Thisincluded a denial ofoutdoor exercise andthat allowing PC and death row prison­ers to exercise together violated theireighth amendment rights. The districtcourt denied the PIon these claims be­cause prison officials were in the processof building an outdoor exercise facility,thus they were not deliberately indiffer­ent to the prisoners' eighth amendmentrights. The prisoners failed to show howthe mixed recreation endangered themas they did not claim to have been threat­ened or harmed.

Pursuant to Kentucky State Peniten­tiary Institutional Policy 10-0201 allsegregation prisoners are required tohave crewcuts while in segregation.One of the plaintiffs, Ronald Phipps,is an Orthodox Hasidic Jew. Heclaimed that the haircut policy requir-

October 1996

ing that his earlocks be cut violated hisrights under the first amendment and theReligious Freedom Restoration Act(RFRA).

In granting the PI the court noted"It is significant that at least the Second,Fourth, Eighth and Tenth circuits haveheld that prison regulations requiring in­mates to cut their hair or shave theirbeards, in violation of their respectivereligious beliefs, violated the inmates'First Amendment rights. See:Longstreth v. Maynard, 961 F.2d 895,903 (lOth Cir. 1992); Benjamin v.Coughlin, 905 F.2d 571,575-77 (2ndCir. 1990); Gallahan v. Hollyfield,670 F.2d 1345, 1346-47 (4th Cir.1982); and Teterud v. Burns, 522 F.2d357, 362-63 (8th Cir. 1975)."

"Since RFRA has been in effect, sev­eral courts have found that policiesforcing inmates to cut their hair, in vio­lation of their religious beliefs, couldviolate RFRA. See: e.g. Abordo v.State of Hawaii, 902 F. Supp. 1220,1229-34 (D HI 1995); Helbrans v.Coombe, 890 F. Supp. 227, 230 (SDNY 1995); Luckette v. Lewis, 883 F.

22

Supp. 471, 477-83 (D AZ 1995) andLewis v. Scott, 910 F. Supp. 282 (EDTX 1995)."

As a factual matter the court heldthat Phipps was sincere in his reli­gious beliefs and that forcing HasidicJews to cut their earlocks would vio­late their religious beliefs. Phippsprovided an affidavit from a Rabbi dis­cussing the prohibition against shavingearlocks according to Jewish law. Thedefendants did not contest the sincer­ity of Phipps's religious beliefs orthat the haircut would violate his re­ligious beliefs. The court held thatbecause the injunction would applyonly to Phipps it would not threaten anysecurity interest claimed by the defen­dants. "Phipps's motion for a preliminaryinjunction as to cutting his earlocksis Granted. Prison officials at Ken­tucky State penitentiary are enjoinedfrom cutting Phipps's earlocks. Thisinjunction shall remain in effect un­til this case has been fullyadjudicated on its merits." See: Estepv. Dent, 914 F. Supp. 1462 (WD KY1996).•

Prison Legal News

No FLSA Protection for Work Release Prisoners

Complaint Can't Be Dismissedif Partial Filing Fee Paid

The court of appeals for the fifthcircuit held that neither the Fed­

eral Fair Labor Standards Act (FLSA)nor Louisiana law offered reliefto a workrelease prisoner challenging a contrac­tual provision requiring he contribute tenpercent of his net earnings to a sheriff'svictim compensation fund. CharlesReimonenq was a Louisiana county pris­oner who participated in a work releaseprogram administered by the countysheriff. As a condition to participate inthe work release program prisoners arerequired to pay ten percent of their netwages to an Elderly/Victim Compensa­tion Fund set up by the sheriff.Reimonenq challenged this practiceclaiming it violated the FLSA becauseit violated its minimum wage standardsand constituted an unenforceable con­tract. The district court rejected each ofthese claims and held that Reimonenqwas not an employee of the defendantsheriff under the FLSA.

The appeals court rejected the claimthat the sheriffwas the prisoner's actualemployer for FLSA purposes holdingthat the "economic reality" test normallyapplied in_FLS.A<:(lsesisinapplicablein the jailer-prisoner context. " ..~As imatter of law, a sheriff/custodian sim­ply is notthe 'employer' for purposes ofthe FLSA ofinmates working in a prisonwork release program for private em­ployers outside the jail. When prisonersare permitted to work for private employ­ers through the prison's work releaseprogram, they have not contracted withthe jail to become its employees. Theyare providing no compensable servicesfor the government or otherwise benefit­ing it." The court went on to say thatwork release programs exist for the ben­efit ofprisoners and that reimbursementofjail costs simply constitutes a quid proquo for allowing the prisoner to partici­pate. "Consequently, an inmate'sreimbursements for maintenance costsdo not constitute an economic benefitsufficient to establish an employer/em­ployee benefit."

The court cited rulings from severalother circuits which held that prisonersare not entitled to FLSA protection, i.e.,the minimum wage due to the fact oftheir incarceration. "We believe that thiscategorical rule that prison custodians

Prison Legal News

are not 'employers' of inmates in workrelease programs not only recognizes thepractical realities of the custodian/con­vict relationship, but also is buttressedby the policy rationales underpinning theFLSA. The FLSA was enacted to im­prove the living conditions and generalwell being offree-world American work­ers and their bargaining strength vis­a-vis employers, as well as to eliminateunfair competition among employerscompeting for business in the market andamong workers looking for jobs." Thecourt held that in this case Reimonenqwas in fact paid the minimum wage byhis private employer and that satisfiedFLSA. In passing the court notes thatprisoners can still challenge deductionsfrom their payor other aspects ofa prisonwork release program under "the appli­cable statutory and constitutionalprovisions, such as the Eighth Amend­ment. But a prisoner in a work releaseprogram has no separate independent

The court of appeals for the sec­-- --on-d- circuit held that district

courts cannot require indigent litigantsto pay a partial filing fee and then dis­miss their complaints as frivolous under28 U.S.C. § 19l5(d). Jerry Hughes, aNew York state prisoner filed suit claim­ing a district attorney had committedperjury in his criminal appeal in statecourt. The district court required Hughesto pay a partial filing fee of $7.56. Thecourt later denied Hughes permission toproceed in forma pauperis and dismissedthe complaint as being legally and fac­tually frivolous, in part because Hugheshad filed and lost a civil rights action basedon the same facts in another district.

The court of appeals reversed andremanded, noting it has approved the useofpartial filing fees as a means by whichto deter indigent litigants from filingfrivolous complaints. The court held thiswas an alternative to dismissal under theIFP statute. Six circuits to address thisissue have held that upon payment of apartial filing fee district courts musttreat complaints in the same manneras those not filed in forma pauperis.

23

claim against the government under theFLSA simply because he is allowed toearn wages from a third party throughthe grace of the government."

The court rejected Reimonenq'sclaim that the contract he signed allow­ing the ten percent deduction was voidbecause he signed it under duress. Thecourt discusses Louisiana contract lawand notes that where workers are paidandbenefitfrom their labor the contractsare not void. In this case Reimonenq waspaid, providedioomand board and-mostimportantly, was not required to partici­pate in the work release program. Inshort, he could have refused to work withno negative consequences. The courtheld the sheriff was authorized by statelaw to make the deduction to the fundbecause prisoners acknowledge the de­duction when they agree to work in theprogram. See: Reimonenq v. Foti, 72F.3d 472 (5th Cir. 1996).•

Namely, they must be served on the de­fendants and cannot be dismissed on thecourt's own motion without affording theplaintiff an opportunity to amend thecomplaint.

The court held that because Hughespaid the partial filing fee he was entitledto service of his complaint and an op­portunity to amend it. The court held"there can be no dismissal for frivo­lousness under § 1915(d) after thepartial filing fee is paid." Districtcourts are still free to dismiss indi­gent suits under § 19l5(d) as long asthey do not require partial fee pay­ments beforehand. "The Rule caneasily be read to permit § 19l5(d) dis­missal before the plaintiff pays anypartial fee. If the case is not frivolous,then the plaintiff may be grantedieave-to proceed in forma pauperis orrequired to pay the partial filingfee." The court noted Hughes'chances of success on the merits ofhis claim were slim. See: Hughes v.City ofAlbany, 76 F.3d 53 (2nd Cir.1996). [Note: This case was decidedprior to the passage of the Prison Liti­gation Reform Act.].

October 1996

Right to Witnesses and Court Access Well EstablishedA federal district court in Kan- on their behalf at prison disciplinary

.f""\..sas held prisoners had a well hearings and cites numerous cases fromestablished rights in 1984 to call wit- all circuits holding the same. This casenesses at disciplinary hearings and to be will be very useful to anyone litigatingfree from retaliation for exercising their this issue. "The simple answer to thisright of access to the courts. Jerry Smith, defense is that the prisoner's right to calla Kansas state prisoner, had his brief- witnesses in a disciplinary proceedingcase searched prior to a trip to a state which might result in the loss of goodcourt. Befoteboarding the bus prison time wasexpiicitiy established in Wolffofficials demanded to search the brief- which was decided in 1974, approxi­case again. Smith refused and they mately ten years prior to defendants'confiscated the briefcase. Once Smith ar- actions.... Additional research by thisrived in court he told the judge he could court has revealed no case holding thatnot proceed without his legal papers, the an inmate's right to call at least one orjudge ordered prison officials to produce some witnesses was not clearly estab­the briefcase. Upon returning to prison lished after the holding in Wolff."Smith was placed in segregation and is- The court gave ample discussion tosued several infractions for disobeying the burden the defendants would face atan order. Smith was denied witnesses at trial in showing that their refusal to callthe various hearings, found guilty of all Smith's witnesses was reasonable andcharges and sentenced to seven months noted that the prisoner plaintiff does notin segregation and the loss of thirteen bear the burden of proof on this issue.months good time. He filed suit and the The court rejected the defendants'district court granted summaryjudgment renewed motion to dismiss the retalia­to the defendants. The court of appeals tion claims by noting that the appealsreversed at Smith v. Maschner, 899 F.2d court had expressly rejected their claims940 (lOth Cir. 1990). [See PLN, Vol. 1, on this issue. Because of the fact disputeNo.3.] This case involves the defen- involved, i.e., the defendants' denial ofdants' pretrial motion for summary any retaliation against Smith, a trial wasjudgment, which the court denied. required to resolve the matter. See: Smith

The court held that prisoners have v. Maschner, 915 F. Supp. 263 (DC KSa well established right to call witnesses 1996).•

AL: Gabel Taylor was shot andkilled on July 18, 1996, after winning abible knowledge contest. Taylor and hiskiller were comparing their knowledgeof the bible. When Taylor won his op­ponent became angry, left, returned witha gun and shot him.

CA: On August 13, 1996,27 pris­oners were injured in a brawl between70 black and Hispanic detainees in thePitchess Detention Center in Castaic. Nocause was given for the disturbance.

CA: On June 17, 1996, at 4: 30 PMa fight between 40 prisoners broke outat the minimum security Salinas ValleyState Prison. Several prisoners sufferedminor injuries. No cause was given forthe fight.

CA: On August 12, 1996, policearrested James Ferris, a Chino prisonerserving a life sentence for murder, andcharged him in the bludgeoning deathof Ostark Youth Training School coun­selor Ineasie Baker, whose body wasfound in a landfill. Police claim Ferriskilled Baker in the prison, then dumpedthe body in the garbage where it was thentaken from the prison to the landfill.

CA: On July 15, 1996, federal judgeGeorge King sentenced former INSguard Paina Moeai to 21 months inprison for assaulting an INS detaineewho had escapecifrom the INS San PedroDetention Center. Upon recapturing theescapee, who faced deportation to Cuba,Moeai beat the detainee on two occa­sions, causing a concussion and bruises.Moeai was convicted of violating aprisoner's civil rights. Judge King saidMoeai's conduct "calls into question thewhole system ofjustice."

MA: In August, 1996, LaurenceFordham, a Boston business lawyer, wasdisciplined by the Massachusetts Su­preme Judicial Court for charging aclient $50,000 to defend him against adrunk driving charge. Fordham said heis being punished for working too hard,claiming he spent 227 hours preparingthe defense of Timothy Clark, who wonan acquittal.

NC: The state is preparing to spend$75 million in 1997 renting prison spacein county jails and out of state prisons inorder to house state prisoners.

NJ: On May 31, 1996, formerSomerset County prosecutor Nicholas

October 1996

News in BriefBissell was convicted 000 federal crimi­nal charges, among them: fraud., perjury,obstruction ofjustice, abusing the powerof his office and conspirirrgtodefraudthe IRS. His wife Barbara was convictedon 13 counts. The charges stem fromthe Bissells skimming $146,000 from aservice station they owned, without theknowledge of their business partners.Witnesses testified that Bissell threatenedto plant cocaine in a gas supplier's car.Bissell was also suspended from the prac­tice of law by the state supreme court.

OH: On August 2, 1996, formerOhio state prison guards EdwardAndrade and James Hess were indictedon multiple counts of sexual assault andbatteryarising from their molestation offemale prisoners at the CoTllmbUsMedJ:­cal Center, a DOC hospitai.

TX: In June, 1996, DEA chemistAnne Castillo was suspended after be-

24

ing confronted and admitting filing falsereports. Castillo reported results on drugevidence without conducting any of the

.required t.ests. She simply fabricated testresults. Consequently, hundreds of fed­eral drug cases in a seven state area maybe affected.

WA: Clark County district courtjudge Randall Fritzler was censured bythe Commission on Judicial Conduct onAugust 12, 1996, for having a consentualsexual relationship with a court secre­tary. Both were married, but not to eachother. The commission said the relation­ship violated three canons on judicialconduct: that judges uphold thejudiciary's integrity and independence;avoid impropriety and carry out theirduties diligently and impartially. Thesecretary -was mar.ried to a Vancouverattorney who often appeared beforeFritzler.•

Prison Legal News

Court Okays Disclosure of AIDS Status

The court of appeals for the sev- right wasweUestablishedin 1992.But1mmane,or efficacious prison adminis­enth circuit held that prison of- none of those seventh circuit cases in- tration." Because other courts have

ficials may casually disclose a prisoner's volved prisoners. While acknowledging upheld the segregation of HIV positiveAIDS status to other prisoners and staff that prisoners do retain a right to pri- prisoners, the court held that publiclybut that denying barber services is un- vacy, the court distinguished those cases identifying such prisoners is also con­constitutional. Dennis Anderson was an by noting they involved different factual stitutional.Illinois state prisoner with AIDS. The issues, usually opposite-sex searches or The court did hold that prisonersprison warden told a guard that Ander- surveillance. cannot be punished for their medical sta-son had AIDS and the guard in turn told The court stated it could find no cir- tus. In this case, if Anderson was deniedother prisoners and guards that Ander- cuit court rulings holding prisoners have yard and barber privileges because ofhisson was gay, that they-couid get AIDS··a eonstitutional·I"ightto privacy. in their AIDS infection, the defendants wouldfrom him and should stay away from medical records. "Now, even if there is not be entitled to qualified immunity.him. The same guard also denied Ander- no such right, we can assume that cer- Anderson based his barber claim, at leastson barber and yard privileges because tain disclosures of medical information in part, on an Illinois statute that statesof his AIDS status. Anderson filed suit or records would be actionable under the that all prisoners would be provided withclaiming the defendants had violated his cruel and unusual punishments clause of access to barber facilities. Andersonfederal and state right to privacy, includ- the Eighth Amendment rather than the claimed denial of barber access violateding the Illinois AIDS Confidentiality due process clause of the Fourteenth. If his due process rights. Thus, the sourceAct, 410 ILCS 305, by revealing that he prison officials disseminated humiliating of his right to a barber was a state stat­was infected with AIDS. He also claimed but penologically irrelevant details of a ute he was seeking to enforce in federalviolation of his rights to due process and prisoner's medical history, their action court. The court held that on remand theequal protection concerning the barber might conceivably constitute the inflic- district court would have to determine ifand yard incidents. The defendants filed tion of cruel and unusual punishment; Sandin v. Conner, 115 S.Ct. 2293 (1995)a motion to dismiss, claiming they were the fact that the punishment was purely would allow the viability of this claim.entitled to qualified immunity. The dis- psychological would not excuse it." The See: Anderson v. Romero, 72 F.3d 518trict court denied the motion holding court noted that other forms of disclo- Oth Cir. 1995).•there were not enough facts in the record sure, such as a tattoo or brand or makingto determine whether the defense of im- the prisoner wear a sign disclosing theirmunity was valid. The defendants AIDS status would likely be unconstitu-appealed and the seventh circuit reversed tional as would revealing the prisoner'sin part and affirmed in part. AIDS status if it exposed them to a

Anderson died during the pendency greater risk of attack from other prison­of the appeal and his estate was substi- ers.tuted as the plaintiff. The court noted In holding the defendants were en­that because this was a motion to dis- titled to immunity for their actions themiss it would assume all the facts court stated that even if prisoners didpleaded in Anderson's complaint were have a right to confidentiality in theirtrue. The court discusses the right to medical records it did not follow they hadprivacy and the doctrine of qualified a right to conceal their HIV status. "Nei­immunity. Government officials are en- ther in 1992 nor today was (is) the lawtitled to qualified immunity from money clearly established that a prison cannotdamages unless a plaintiff can show the without violating the constitutional rightsrights they claim were violated were of its HIV positive inmates reveal theirclearly established at the time of the vio- condition to other inmates and to guardslation. The immunity test is an objective in order to enable those other inmatesone that focuses only on the right in- and those guards to protect themselvesvolved, "proofof spite does not nullify a from infection." The court rejected thedefense of immunity." The court held argument by the Lambda Defense Fund,that the defendants' spitefulness in dis- who filed an amicus brief, that universalclosing Anderson's AIDs status was precautions, whereby everyone who mayirrelevant to their immunity defense of be infected is treated as if they were, iswhether the law was clearly established the best way to deal with AIDS infec­in 1992 that revealing a prisoners' AIDS tion. The court accurately noted "Thestatus would be unlawful. constitution rarely requires 'the best. ... '

The court cites extensive cases that The Eighth Amendment forbids cruelhold that people have a right to privacy and unusual punishments; it does notin their medical records and that this require the most intelligent, progressive,

Prison Legal News 25 October 1996