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.
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.