MIM(Prisons) is a cell of revolutionaries serving the oppressed masses inside U.$. prisons, guided by the communist ideology of Marxism-Leninism-Maoism.
Under Lock & Key is a news service written by and for prisoners with a focus on what is going on behind bars throughout the United States. Under Lock & Key is available to U.S. prisoners for free through MIM(Prisons)'s Free Political Literature to Prisoners Program, by writing:
MIM(Prisons) PO Box 40799 San Francisco, CA 94140.
I want to illuminate my thoughts regarding a “secret” Massachusetts DOC
policy that this state utilizes to hold us for long stretches in
solitary settings. We are frequently charged with violating a secret
regulation (103 DOC 514), yet we have no access, nor does the public, to
view this secret policy. The DOC expects us to abide by a regulation
that we are not allowed to read.
103 CMR 430 seeks to ensure fairness in the prison disciplinary system
by clearly defining and providing transparent notice of the procedures
by which disciplinary issues are handled. If the goal of 103 CMR 430 is
to promote order in the Massachusetts prison system and affect positive
change in prisoner behavior, the applicable regulations, and standards,
must be clear and readily available to the prisoners who are held
accountable for transgressing these behavioral benchmarks. If they are
not, the result on the prison population will be confusion, not
conformity. Prisoners cannot change their behavior to abide by a set of
regulations they are not allowed to view. We are owed due process under
the 14th Amendment, but due process is not being afforded to us.
In Wolff v. McDonnell, 418 US 539 (1974), the Supreme Court
held that advanced written notice of regulations a prisoner is allegedly
violating is one of the minimum requirements of procedural due process.
Furthermore, a common person could only guess at what does or doesn’t
constitute engaging in STG activity. Charging us continuously with
STG-related offenses while denying us access to definitions of STG or
STG activity conflicts with the purpose of 103 CMR 430, and the due
process clause of the 14th Amendment. We must stand up and demand that
the Massachusetts DOC reveal this secret policy!
As our readers already know, MIM(Prisons) runs political study
groups with our comrades behind bars. And as some of you know, and have
experienced, the state generally finds our non-violent, non-law
breaking, communist study in poor taste. In October 2009, a study group
assignment for the pamphlet “What is MIM?,” which included other
participants’ responses to the previous assignment, was mailed to a
participant held in Arizona. This study group assignment was censored
because allegedly it “may be obscene or a threat to security” generally,
and “promotes racism and/or religious oppression” specifically. Yes,
this is coming from the state that is fighting the federal government in
court to be allowed to use the color of one’s skin as probable cause for
investigating immigration law violations.
Our comrade imprisoned in Arizona appealed this decision, and
MIM(Prisons) wrote to the prison administration to request an
explanation as to how this study group assignment could “promote racism
and/or religious oppression” without even mentioning races,
nationalities, or religions:
“It is truly fascinating that your mailroom staff could find the
promotion of racism and/or religious oppression in this document.
Nowhere in the letter are the following words even mentioned: religious,
religion, christian, muslim, baptist, KKK, white, mexican, latino, asian
or arab. The word”black” is written once in the context of a reference
to the Black Panther Party’s education programs. How can you even talk
about religion or race enough to speak against it if you don’t use any
of the above mentioned words?” - MIM Distributors, Legal Assistant
No attempt has ever been made by Arizona Department of Corrections (ADC)
administration to address this point. ADC General Counsel Karyn Klausner
offered her opinion: “I have reviewed the materials sent by MIM
Distributors and find the decision to exclude the publication due to
content ‘promoting racism and/or religious oppression,’ was
appropriate.” She gave no explanation of how she came to the conclusion
that it was an “appropriate” violation of Constitutionally protected
rights. In a later letter Ms. Klausner clarified that with this
statement she didn’t mean she was “upholding” the censorship in her
official capacity as General Counsel of the Office of the Director of
ADC, just that she agreed with it on a persynal level.
Instead of explaining how the study group mailing in any way promotes
racism and/or religious oppression, ADC administrators then began to
rely on their policy of violating MIM Distributors’ First Amendment
right to free speech and association to censor this study group
assignment:
“There is nothing in case law that gives rise to a publisher’s right to
appeal a decision to exclude its material on an administrative appeal
level. . . You are not entitled to a forum within the prison system.” -
ADC Director, Charles Ryan
Director Ryan clearly had not investigated the matter on the prisoner’s
end either. He claimed that our imprisoned comrade had not appealed the
decision to censor, yet s/he had, on multiple levels, and submitted
requests for the results of these appeals.
“You claim that MIM Distributors has no rights to appeal the censorship
of their mail. While we are not lawyers, and may have put too much
weight on the Procunier case, we still uphold that we have First and
Fourteenth Amendment rights according to federal law. As employees of
the state you may not deny anyone their rights to free speech and
association arbitrarily and without due process. In fact, if you read
Thornburgh v. Abbot, 490 U.S. 401, which you referred [COLLEAGUE] to,
you will see that its procedural protection was provided because the
publisher was notified of the censorship and given the right to
independent review. A number of U.S. Court of Appeals decisions have
upheld the right of the publisher in such instances (Montcalm Publ’g
Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), Trudeau v. Wyrick, 713 F.2d
1360, 1366 (8th Cir.1983), Martin v. Kelley, 803 F.2d 236, 243-44 (6th
Cir.1986) ).” - MIM Distributors, Legal Assistant
And ADC’s response?
“You assert that ‘MIM Distributors’ First Amendment right to free
speech’ is not being respected. The Arizona Department of Corrections is
obligated to respect, within the confines of legitimate penological
interests, an inmate’s constitutional rights. It does not follow
that ADC is likewise obliged to do the same for an independent
distributor such as MIM.” - General Counsel, Karyn Klausner
It is apparent that the ADC believes themselves to be exempt from the
legal straitjacket of the United $tates Constitution, which they don’t
see as having an application in the 10th Circuit. This isn’t surprising
coming from an institution whose administrators believe that one can
promote racial and/or religious repression without ever talking about
race or religion!
Amerikans like to pretend they hold no political prisoners, yet
political repression is an integral part of the U.$. injustice system at
every step. In our struggle for a world without oppression, MIM(Prisons)
works to build public opinion for national liberation struggles amongst
prisoners through our newsletter Under Lock & Key, our free
books for prisoners program, and our study groups. Within prisons, there
are two primary ways in which the state enacts political repression:
through physical torture techniques such as solitary confinement, forced
drugging, beatings, starvation and murder; and through the control of
the spread of ideas, which also includes solitary confinement as well as
the censorship of mail, and outlawing oppressed nation organizations.
In pre-fascist Amerika, we are still promised certain rights under
United $tates laws. While we recognize that U.$. law will never lead us
to communism (a world without oppression), we still need to fight for
more room to organize and educate for revolution. Fighting against the
censorship of revolutionary literature is vital to maintaining the
connection between the inside and out, which may make the difference
between being turned on to communism or not for many people. For those
already turned on, we need to fight against censorship so that we can
continue to build our revolutionary understanding.
Like a MIM Distributors Legal Assistant mentioned above, we are not
lawyers. We do what we can to protect our Constitutional rights from the
outside with the resources we have, and we rely on prisoners to fight to
maintain their rights from the inside. If there is a lawyer who wants to
get involved with this specific incident in Arizona, or with
anti-censorship work in general, get in touch!
I received the Prisoners’ Legal Clinic letter dated 4 October 2010. I am
very glad to see that we’re making excellent progress in bringing our
ideas together to develop an energetic foundation. MIM(Prisons) has been
faithful in their constant commitment to battling oppression. Therefore,
I’d like to continue to contribute to this movement and participate in
its progressive legal work.
I am obligated to challenge the inhumane conditions of confinement. I
wouldn’t go so far as indicating that I enjoy doing the litigation part,
because it is very confusing. But I have a strong desire to change
things for all of us who are oppressed.
I have been in solitary confinement for eight years, and because of the
economic crisis around the world, Arizona Department of Corrections
(ADC) has been susceptible to providing sub-standard conditions. Thus I
am currently litigating three §1983 federal civil rights complaints. I
am hoping to bring my complaints to the courts in an effort to change
policy and procedure, but I’m afraid that significant change comes from
the legislators, who of course engineers these illegal laws that keep us
further oppressed. I understand the real solution is socialism, and the
only way to obtain it is in pieces.
I am currently setting the paper trail (framework) to the censorship
repression I am experiencing at this time. The policy seems to be used
as a safeguard to hinder the process of my studies. Furthermore, it’s
denying me my Constitutional right to freedom of speech (First
Amendment). So I am hoping to be part of these grievance petitions and
censorship campaigns.
I am in the process of distributing the grievance petitions to the
proper officials out here in Arizona. I have the copies ready to be sent
out, but like a comrade in the Prisoners’ Legal Clinic said,
“I cannot see how the DOJ would be willing to assist us when it’s likely
their office is instructing, or giving guidance to, the institutions’
appeals coordinators to screen out legitimate grievances at all cost, in
an effort to frustrate our access to the courts.”
I agree with this comrade. I basically think our grievance petitions go
unheard anywhere we address them. But I think if we are going to get any
consideration outside the court, it’ll be through Senators or
legislators. If you can suggest some things that would be a blessing to
me, I have no experience or knowledge. But I’m extremely motivated and I
must try. Because once I can’t try any more, at least I can say “I
tried.” So sign me up.
MIM(Prisons) responds: Many people are afraid to start making
change because they don’t know where to start, or they are intimidated
because they have no experience. This comrade’s attitude toward learning
something new is one that we would all do well to adopt.
We agree with h assessment that there are levels to change, with
overthrowing capitalism being the only way to eliminate the source of
these abuses. Even if new laws are put in place that make it harder for
prison administrators and employees to obstruct the grievance process,
their effect will be limited without independent power from organizing
the oppressed. One reason we support reform of the grievance process is
because it makes more space for this valuable organizing work.
If you would like to get involved in the campaign for the proper
handling of grievances, write to MIM(Prisons) or follow the campaign
page link below.
I received the Prisoners’ Legal Clinic (PLC) summary from October 2010.
First off, I have to say that this is a good format, with various people
sharing ideas and expertise. This format will definitely push the legal
struggle forward.
Concerning the grievance petition initiated in California, while i’d
initially thought the campaign was a good idea, i have to say that i had
my doubts concerning the effectiveness of it. Its entire success hinges
on mass participation and not just on 10 or 15 individuals getting
involved. Even then i think its effectiveness is a longshot unless of
course you’re already involved in a legal battle within the judicial
system, as presentation of responses entered into evidence as exhibits
would help to prove to the court that the handling of grievances by
prison officials has some serious faults, which we know they do.
Instead, I like the comrade from California’s idea of suing CDCR and
attacking its entire appeals process. We can ask that a truly
independent institution take over the entire appeals process, or be
created if need be. I think this is very much a winnable battle were it
to enter the judicial arena. Copies of the grievance petition from
prisoners who’ve already completed the campaign and have received
responses should be forwarded to the PLC for forwarding to whomever
should decide to initiate and fight the legal battle.
I also have here a copy of a §1983 “Findings and Recommendations
Recommending Defendants’ Motion to Dismiss be Denied” which was filed by
CDCR officials in California against a prisoner in which the pigs tried
to have the plaintiff’s §1983 dismissed due to supposed failure to
exhaust claims. The motion was dismissed and the court found in favor of
the prisoner plaintiff. While I do not know of the outcome of the case,
i believe this motion is worth a look. As soon as i’m able to obtain
copies i will forward them to the PLC for review and dispersal.
For now, however, here is relevant case law pertaining to the exhaustion
requirement:
Jones v. Bock, 127 S. Ct. 910, 918-19 (2007) McKinney v. Carey,
311 F.3d 1198, 1199-1201 (9th Circuit. 2002) Booth v. Churner, 532
U.S. 731, 741, 121 S. Ct 1819 (2001) Porter v. Nussle, 435 U.S. 516,
532, 122 S. Ct 983 (2002) Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Cir. 2003) Ritza v. Int’l Longshoremen’s & Warehousemen’s Union,
837 F.2d 365, 368 (9th Cir. 1998) (per currium) Woodford v. Ngo, 548
U.S. 81, 126 S. Ct. 2378, 2383 (2006)
The following case law was cited to the plaintiff’s favor:
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.
2008) Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.
2007) Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) Boyd v. Corrections
Corp. of America, 380 F.3d 989, 986 (6th Cir. 2004) Abney v.
McGinnis, 380 F.3d 663, 667 (2d 2004) Jernigan v. Stuchell, 304 F.3
1030, 1032 (10th Cir. 2002) Foulk v. Charrier, 262 F.3d 687, 698 (8th
Cir. 2001) Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.
1999) Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.
1998) Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) Brown v.
Croak, 312 F.3d 109, 113 (3d Cir. 2002) Miller v. Norris, 247 F.3d
736, 740 (8th Cir. 2001)
These next citations are concerning requirements for the
establishment of law libraries in prisons. I got these out of The
Jailhouse Lawyer’s Handbook 4th edition 2003:
Bounds v. Smith, 430 U.S. 817 (1977) Lewis v. Casey, 518 U.S. 343
(1996) Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) Tourscher
v. McCullough, 184 F.3d 236, 242 (3d Cir. 1999) Johnson v. Moore, 948
F.2d 517 (9th Cir. 1991) Corgain v. Miler, 708 F.2d 1241 (7th Cir.
1983) Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980) Shango v.
Jurich, 965 F.2d 289 (7th Cir. 1992) Lindquist v. Idaho State Bd. of
Corrections, 776 F.2d 851 (9th Cir. 1985) Cepulonis v. Fair, 732 F.2d
1 (1st Cir. 1984) Marange v. Fontenof, 879 F. Supp. 679 (E.D. Tex
1995)
MIM(Prisons) responds: In assessing the effectiveness of our
campaigns we have a twofold approach. One goal is to win small battles
that increase, or maintain space for, the free exchange of political
ideas and the freedom of affiliation. Our second goal is to train the
oppressed in mass action and power struggles.
The lawsuit idea suggested here might be more effective in meeting our
first goal in relation to establishing a legal process for prisoners to
have their complaints addressed under the current injustice system. But,
ultimately, a real prison movement needs to mobilize large numbers of
prisoners into participating in struggling for humane treatment and the
freedom to fight for a better world. Without struggle there are no
so-called “rights.”
While the petition campaign has still been limited in the numbers
reached, we are working to better streamline our support for USW
campaigns, including the grievance petitions in states where these
campaigns are active. We need more than a couple articles in
ULK to launch a successful campaign. We need more regular USW
cadre who are willing to take these agitational points to the masses on
a regular basis. Get in touch with MIM(Prisons) today to get copies of
the petition, or to contribute to building a legal case around this
battle.
by a North Carolina prisoner November 2010 permalink
I am a prisoner at Scotland Correctional Institution in Laurinburg,
North Carolina. I am writing to you because of the fact that the legal
mail that you sent out to several prisoners here [containing a letter
MIM(Prisons) sent to the Director of Prisons regarding ongoing
censorship at Scotland CI] was opened by the mailroom staff and treated
as regular mail.
Even though the mail had “Legal Mail” stamped on it, the mailroom staff
still opened it. By DOC policy I have to witness them opening my legal
mail, and I have to sign for legal mail. By them opening this legal
mail, they violated DOC policy and broke Federal law.
This requires some sort of action. I am filing a grievance on this
matter and when I receive a response I will send it to you.
MIM(Prisons) adds: This letter is just one example of the long
history of mailroom staff at Scotland CI unjustly censoring, banning,
and trashing mail from MIM(Prisons), with the collusion of Assistant
Superintendent Karen Stanback. While this comrade is filing grievances
and organizing other prisoners around the issue, another comrade in
North Carolina is working on bringing a case against the NC DOC to
hopefully reformat the whole censorship and grievance system. If you
want to get involved, or support this case, get in touch. Both methods
are correct and necessary if we want to combat censorship.
by a South Carolina prisoner October 2010 permalink
I am a Jailhouse Lawyer of the High Rolla Jailhouse Law firm. I was
appointed by the chief Jailhouse Lawyer of the Jailhouse Law Firm to aid
and assist the MIM(Prisons) Legal Clinic. I have reviewed the Prisoner’s
Legal Clinic letter dated October 4, 2010. Upon review I have taken the
opportunity to offer my legal experience to assist MIM(Prisons) in
responding to the statement made by the Director of Arizona’s Department
of Corrections.
According to the Director of Arizona’s Dept. of Corrections, he states
Procunier v. Martinez, 416 U.S. 369 (1974) was overruled and
your reliance on that case is misplaced. The Director of Arizona’s Dept
of Correction further states that there is nothing that gives rise to a
publisher’s right to appeal a decision to exclude its material on an
administrative appeal level and you are not entitled to a forum within
the prison system.
The Arizona Dept. of Corrections Director is partially correct and
partially wrong. Basically what the Director is telling MIM(Prisons) is
that it does not have an entitlement to use the prison grievance system
to appeal administrative decisions. The Inmate Grievance System is a
forum within the Department of Corrections for prisoners to avail
themselves of if they are dissatisfied and wish to appeal an
administrative decision. This system is for use by prisoners, not
publication companies. The Director is correct, in that there is no case
laws that gives rise to a publisher’s right to appeal on an
administrative level. If MIM(Prisons) wishes to challenge the
administrative decision of the Director to exclude its publications, the
proper forum would be for MIM(Prisons) to file a §1983 Civil Rights
action in Federal Court, or to provide the prisoner with the appropriate
arguments, case laws and legal authorities and have the prisoner himself
file the appeal by going through the Grievance System and then the
Administrative Law Court.
However, MIM(Prisons) should notify the Director that it is fully aware
of the fact that it does not have the right to appeal on an
administrative appeal level. MIM(Prisons) should notify the Director
that it is fully aware that it is not entitled to a forum within the
prison system. MIM(Prisons) should notify the Director that it was only
making an effort at an informal appeal or request for the Director to
reconsider its decision. Because contrary to what the Director stated
Procunier v. Martinez 416 U.S. 396 (1974) is still applicable
in part. Just as prisoners have a first Amendment Right to receive and
send mail, so does publication companies and publishers. When the
complaining party is the prisoner, then Turner v. Safely 482
U.S. 78 (1987) is the applicable standard, however when a publisher
complains that its first amendment right has been violated then
Procunier v. Martinez and Thornburgh v. Abbott 490
U.S. 401 (1989) is the appropriate standard.
I say all that to say this, if the Director cannot show that the
restrictions placed on mail received by a prisoner is rationally related
to a legitimate penological interest, then the Director’s reliance on
Thornburgh v. Abbott and Turner v. Safely is
unsupported and misplaced, then the correct standard would be
Procunier v. Martinez. The United States Supreme Court clearly
held in Thornburgh v. Abbott, that prison officials could
reject incoming mail if it was deemed detrimental to security, but if no
such penological interest is involved, the Director can not rely on this
case nor Turner v. Safely to justify its restrictions on
incoming mail. The question is now “Is there a legitimate penological
interest to justify its restriction of the MIM(Prisons)’s Under Lock and
Key??” The only way to force the Director to answer this question and
identify the penological interests involved is to file a §1983 Civil
Right Action against the director making him accountable to the Federal
Courts. The prisoner has the additional alternative of the Prison
Grievance System which we know is unreliable. At this moment my advice
and suggestion to MIM(Prisons) is to challenge these censorships from a
different angle. From my research dealing with a recent line of cases
i.e. Beard v. Banks 126 S.C.T. 2572 (2006), Overton v.
Bazzetta 539 U.S. 126 (2003) Ramirez v. Pugh 486 F. Supp.
2d 421 (M.D. Pa. 2007), Brittain v. Beard, 932 A.2d 324 (Pa.
Commw. Ct. 2007). The Courts seem to be interested in whether the
regulation challenged promotes rehabilitation. Recently the term
“Rehabilitation” has been used by prison officials to uphold prohibitive
regulations and thus far have been successful. It would be a strategic
legal maneuver to argue that such restrict regulations actually
discourage rehabilitation, and expert testimony from a psychologist or
sociologist would help to support this argument. This would be a more
strategic angle to strike from.
MIM(Prisons) also was inquiring about cases concerning prisoner’s rights
to read newspapers as well as write for them and concerning inmate to
inmate correspondence. Well I do not know right off top a specific case
that involves prisoners rights to read newspapers as well as write for
them, but there is a case that states “prisoners may not be punished for
posting material on the internet with the assistance of a third party,”
I don’t think it’s what MIM(Prisons) is looking for though.
I do know as far as inmate to inmate correspondence is concerned, that
the United States Supreme Court held in Shaw v. Murphy 532 U.S.
223, 121 S.Ct. 1475 (2001) that a prisoner who was working as a prison
law clerk claimed his First Amendment rights were violated when he was
disciplined for statements he made in a letter to another inmate in
which he gave legal advice. He was disciplined for violating a prison
policy prohibiting insolence and interference with due-process hearings.
The court found that inmates do not possess a special First Amendment
right to give legal assistance to other inmates. If they did possess
such a right, it would mean enhancing the usual protection given to
inmate to inmate correspondence. Thus his letter, regardless of its
content, was subject to the same regulations as all other letters sent
between inmates. At least as far as South Carolina is concerned inmate
to inmate correspondence is only allowed if the inmates are immediate
family members or if the inmates are involved in a joint legal action
and the correspondence is related to the legal action only. SCDC Policy
10.08 Section 18.
In April 2010, we embarked upon a legal campaign to protest the Missouri
DOC’s decision to place a blanket ban on all CDs and tapes which carry a
parental advisory label. We suggested that prisoners send in a complaint
to DOC and government officials, and other prisoners’ rights
organizations.
On 29 June 2010 the ACLU of Kansas and Western Missouri responded to the
letter I sent to them. In short order, they said they couldn’t represent
“me” in the complaint set forth in Our complaint letter, although I
stressed that this was an issue that affected the entire class of
prisoners in this state.
On 13 July 2010, Natania Gazek, Special Litigation Section of the Civil
Rights Division of the U.$. Justice Department responded to Our
complaint and letter. Her response was that the U.$. Justice Department
would not get involved in “individual” cases, but does have the
authority to initiate civil action in the name of the Unite $tates.
against state and local officials to remedy conditions of confinement
which violate the constitution.
We shouldn’t be surprised by these responses. These officials represent
the interests of the state, which is imperialist in word and deed.
However, what surprised me was that I wrote to over 40 organizations and
groups which have memberships in these prisons including but not limited
to the NAACP, NOI, Missouri CURE, Human Rights Watch, Critical
Resistance, rcp=U$A, ASPS, the Fortune Society and not one of these
groups had enough respect for Our struggle to even respond to Our call
for help.
From this you should take that it is exceedingly important that we
support groups such as MIM(Prisons) and USW who have shown in their
actions that they support our struggles. We must withdraw all moral and
financial support of groups and leaders who don’t give a damn about our
repression, yet want our membership dollars.
Legal Work
I have current federal litigation filed that alleges that the censorship
policy is a violation of Our 1st and 14th Amendment rights. This case
deals specifically with DOC officials’ censorship of issues of Under
Lock & Key and other MIM publications.
What will strengthen this case and the new case that I’m preparing is if
those of you in Missouri who have had issues of ULK and other
literature from MIM Distributors censored would write out declarations
or affidavits stating when and what was censored and send them to the
MIM(Prisons)-led Prisoners’ Legal Clinic, who will send them to me. I
will present this evidence to the Asst. Attorney General as proof that
these illegal actions are happening in other prisons and it is not just
me as an “individual” who is suffering.
In all, the lesson here is that we can’t expect “justice” from our
enemies and that we must organize ourselves and build independent
institutions that speak to our needs. Rest assured that our enemies know
full well the social implications of their policies. A persyn can only
proceed as far as their knowledge will carry them and they plan to keep
prisoners ignorant, addicted and coming in and out of prison as a
constant source of income.
Ups to all of those who took the time, energy and efforts to send in
complaints, file grievances and educate fellow prisoners on these issues
and others. If you have other ideas, suggestions or strategies please
send them in. Keep your heads up, stay strong, unite and organize.
I would like to comment on the
“Legal
Tips to Fight Gang Validation article that was printed in
ULK 16.
This comrade’s tips are greatly appreciated and will help a lot of
prisoners who are not familiar with our rights in the validation
process. Here’s the thing though, California Department of Corrections
and Rehabilitation (CDCR) is aware of such due process rights and we get
a 114-D lockup order, a chance to reboot our validations, and to be put
up for the Security Housing Unit (SHU) by classification. However, it’s
all just a big charade without any meaningful review given at any time
and no matter what we say or what evidence we present to show the source
items are insufficient, unreliable and can’t be used as source items per
the Title 15 and relevant authority, we are ignored at every level.
I 602ed [grieved] my validation and clearly showed why my validation is
false on all levels but was just given a general response at the 2nd and
3rd levels, as all prisoners are, saying I’m wrong and my validation
meets the department’s requirements. CDCR refuses to follow their rules
and is just rubber stamping prisoners’ validations and going through the
motions that are nothing more than a front in an attempt to dupe the
courts into believing we got our due process.
Now in my optimistic attitude I thought the courts would see the
arbitrariness of my validation and actually, you know, follow the law.
But when I sent in my habeas corpus to the Lassen County
Superior Court it took them all of 6 days to deny my petition without
holding any hearings, which is the only way the court could have
determined that my source items showed “some evidence” and were reliable
as they stated. So I sent my habeas corpus to the court of
appeals hoping I can get a real review, which I have yet to receive. My
case is no different from all other prisoners being validated here at
High Desert State Prison and it won’t change until we shed light on this
dark process. So my question is, what do we do when the officials and
courts that swore to uphold the law are disregarding it without a second
thought? We all will continue to 602 and petition the courts about our
fake validations for they can’t ignore us forever.
Another case that is vital for validated prisoners to get their hands on
to study and apply to their situation is the Lira v. Cate,
No. C-00-0905 S1 (N.D.Cal. Sept. 30, 2009) which is regarding a former
validated prisoner who challenged his gang validation and lack of due
process and won.
MIM(Prisons) responds: They can’t ignore us forever if we team
up. As pointed out, people are facing the same situations all over.
Legal battles are an important tool in the struggle, but we know the
whole system, including the courts, is set up to oppress certain groups.
Part of these struggles is making connections and working together. With
enough unity around the right issues our reliance on the courts becomes
less and less necessary.
I have been in disciplinary segregation since August 2004 and I am
currently at Western Correctional Prison, Maximum Security. On 26
January 2008, I wrote an Administrative Remedy Complaint (ARCs) on six
officers who attacked me while coming from the showers on the 4 - 12
shift. This was due to me writing grievances (ARCs) on them for not
abiding to DOC policy and procedures. The ARC has stayed its course
through the process and it is now in the Court of Special Appeals where
it has been since February 2009.
On 13 March 2009, I was assaulted by officer Broadwater, which precluded
the above ARC. All these officers at the time were working SHU #4
Disciplinary Segregated Isolation tiers.
On 25 March 2008, I was assaulted by officers Rice, Brambles, and
McKenzie. I was sprayed with chemical pepper spray all over my front
body, from my waist to my head. This chemical was literally dripping off
my body. The officer said in his report that he gave me a one second
burst! This ARC went through the process and is in the Court of Special
Appeals as of February 2009.
To relieve themselves of an injunction that I won, they transferred me
to Eastern Correctional Prison, which is classified as medium security.
I am classified as Maximum #2 level, so I made out really good from the
injunctions.
I’ve lodged numerous ARPs: 1. Concerning the wearing of hair nets
while serving our food to us. I won this ARP and the Gestapo hates
it. 2. Serving us cold food all the time. This ARP is at the Inmate
Grievance Office (IGO) now, which is the last step before going to
court. 3. ARP about tiers having food and trash on them, which the
guards encourage. This ARP was addressed at the IGO level in December
2009, and now they have to come around to each individual cell and
collect unwanted food and trash. Gestapo hates it because they have to
do a little work. 4. ARP concerning filthy showers and the tier floor
not being mopped regularly as stated in the DOC policy and procedures,
“It is imperative that good sanitation be maintained at all time!”
I also have two cases in local courts. As you can see, I am very adamant
about these Gestapo security guards doing their job correctly. Whatever
you can think of that these Gestapos can do to me, they’ve done it over
the years. So whatever they do to me, they’re not getting a cherry. Been
there and done that!
As far as the grievances go towards censorship of incoming books,
magazines, and literature such as Under Lock & Key, I
fought the censorship of incoming literature from Book ‘Em and Books to
Prisoners. Basically I wrote an ARP because when the books came in they
sent them back without notifying me that the books were even here. I
found out via Books to Prisoners writing me and telling me about it. So
the prison violated not only mine, but Books to Prisoners’ due process
rights.
Plus the prison had a list of 34 companies where you could order books
from. This list is called a “blackball” list and it is illegal. I
charged them with a restraint of trade and discrimination. Once the ARP
got to the second level of the process, Commissioner’s Office, they
withdrew the list of 34 companies.
I have a very good track record for winning ARP cases, and my first two
books were from Books to Prisoners.
I want to put Maryland on the map, so to speak! There are numerous upon
numerous violations that are at fault in this Gestapo Security Guard
Concentration Camp. I’d like to see more prisoners in this state get
involved in any movement that stands against this Draconian style
suffering towards those who are imprisoned.
Nothing and no one will stop me from exercising my absolute right to
litigate from anyone refusing to adhere to giving me those few basic
rights that the Constitution and the Bill of Rights of the United States
of Amerikkka says that I have!
MIM(Prisons) responds: This comrade domonstrates that
following through on appeals and filing court cases can actually lead to
winning cases and that building your experience fighting such legal
battles can pay off.
Though prisons are one of the most
fascist
elements of U$ society we don’t use the term “Gestapo” to describe
the pigs. The Gestapo was the official secret police of the Nazi
government, and to call U.$. prison guards a Gestapo tends to let
imperialism off the hook. The petty bourgeoisie likes to believe that
bourgeois democracy is a more humane system than fascism. But part of
the importance of exposing what is going on in U$ prisons is
demonstrating that imperialism can be just as oppressive when it needs
to be. Fascism happens when the imperialists decide they need to be that
oppressive all the time.
I am writing in regards to an article titled
“False
Gang Validations to Repress Latinos” featured in your
Under Lock & Key,
May/June 2010 newsletter. The author “seeks advice, assistance or
referral on how to get word out about biased racial profiling, mass
validations, and [officials’] failure to follow their own policies and
laws.” I am somewhat familiar with the validation process and can only
offer advice on that subject. Hopefully it is enough to help steer
anyone interested in the right direction.
For starters we have to address the fact that officials are knowingly
violating your rights because they know that prisoners are not familiar
with the validation process and because appeals coordinators will
prevent your CDCR-602 [grievance] appeal from being processed. This is
accomplished by screening-out 602s by either applying false rules that
don’t exist in the California Code of Regulations, Title-15, or the
Department Operations Manual (DOM), and by also manipulating current
rules by applying them to situations that don’t justify the use of that
particular rule. The Federal Court in Nunez v. Duncan , 591
F.3d 1217 (9th Cir. 2010) and the State Court in In re Hudson
(2007) 143 Cal. App. 4th 1, 49 Cal.Rptr.3d 74, have caught on to these
obstructionist tactics and now deem a 602 appeal exhausted if the
appeals coordinator prevents you from exhausting your appeal. But you
must still follow legitimate and established rules and regulations. The
exhaustion exception only applies when officials are the ones who are
preventing you from exhausting. So don’t be discouraged if the appeals
coordinator repeatedly screens out your appeal. Challenge their screen
out decision two or three times in order to create a record for the
Court that will show you made a good faith effort to exhaust and that it
was officials who were the obstructionists.
DOM § 54100.8, only allows the appeals coordinator to: (1) screen
appeals to determine if you followed proper procedural rules. They are
not to use the screen-out form to discourage you from pursuing your
appeal by addressing the issue on part “A” of the 602. The issue is to
be addressed by a reviewer not the appeals coordinator; (2) this section
also prohibits the appeals coordinator from construing the appeals
process in any way that would place an unreasonable burden on your right
to file a 602; and (3) the appeals coordinator is to provide you with
clear instructions needed in order to have your appeal processed. They
always screen-out a 602 by telling you what rule you allegedly violated
but they don’t tell you how to correct the problem. Make sure you insist
on clear instructions needed to overcome the screen-out decision. With
this in mind we now turn to the validation process.
When a prisoner is being considered for validation, at the minimum, the
Due Process Clause of the 14th Amendment to the U.S. Constitution, and
Article 1, Sections 7(a) & 15, of the California Constitution,
require prison officials to provide you with: (1) meaningful notice of
being considered for validation through a CDCR-114 lock-up order; (2) an
opportunity to express your views to the Institutional Gang Investigator
(IGI) prior to your validation package being submitted to Sacramento for
approval; (3) CDCR-1030 Confidential Disclosure forms for each source of
information they intend to count as a validation point (the 1030s must
be provided 24 hours prior to IGI interview); (4) officials must
designate you as being a current active member or associate by
identifying specific gang activity or conduct allegedly performed by you
on behalf of the gang; and (5) if Sacramento approves the validation
package, you have a right to be taken before a Classification Committee.
(see Toussanint v. McCarthy, 926 F.2d 800, 803-05 (9th Cir.
1990); Madrid v. Gomez, 889 F.Supp. 1146, 1276-77 (N.D.
Cal.1995); the terms of a settlement agreement in Castillo v.
Alameda, Case No. C-94-2847-MJJ (N.D.Cal.), which became binding on
the CDCR in September 2004; and California Code of regulations,
Title-15, Sections 3378; 3000 (see definition of “gang”); and 3023.)
Once in segregation for validation reasons, the State and Federal Due
Process Clause also guarantees you the right to periodic reviews by the
Classification Committee on at least a weekly or monthly basis during
the first two months of segregation and then once every 120 days
thereafter. (see, Toussanint v. McCarthy, 926 F.2d 800, 803-05
(9th Cir. 1990); and Toussaint v. Rowland, 711 F.Supp. 536,540
fn.10 (N.D.Cal. 1989).)
If validated you could challenge each validation point under the Due
Process Clause by alleging that each point is unreliable because it does
not meet the “some evidence” standard and do not have an “indicia of
reliability” as there is no corroboration, the information is hearsay
obtained through someone else, or the information is completely false.
(see, Superintendent v. Hill (1985) 472 U.S. 445, 105 S.Ct.
2768; Cato v. Rushen, 824 F.2d 703,705 (9th Cir. 1987); and
Cal. Code of Regulations, Title-15, Sections 3321; 3084.5(h)(2)(C); and
3378(c)(8)(A)-(M)
If officials allege that you committed a specific act of violence on
behalf of the gang, then you are entitled to greater Due Process
protections: (1) they must issue you a CDCR-114 Rules Violation Report
outlining in as much detail as possible, who, what, when and where this
alleged violation took place; (2) they must state what evidence they
have to support the CDCR-115; (3) they must allow you an opportunity to
present witnesses and documentary evidence; and (4) they must assign an
Investigative Employee (IE) to assist you in preparing your defense.
(see Wolff v. McDonnell (1974) 418 U.S. 539,563-66; and
California Code of Regulations, Title-15, Sections 3315-3319.)
This information is only a basic starting point. You should make every
effort to research these cases. Good luck with your struggles.