P r i s o n B r e a k
Susan E.
Coleman is a partner at the law firm of Burke,
Williams &
Sorensen, where she specializes in law enforcement defense, including correctional litigation. Ms.
Coleman has 18 years of litigation experience. She is an associate of the American
Board of Trial Advocates
(ABOTA) with over 20 civil jury trials throughout California. email: scoleman@bwslaw.com direct: 213.236.2831
Kristina
Doan
Gruenberg is an associate at
Burke. Prior to joining the firm, she served as a judicial law clerk in the District of
Columbia, handling civil and criminal cases including many inmate complaints. email: kgruenberg@bwslaw.com direct: 213.236.2805
Across the United States, there are approximately 230,000 inmates who are members of prison gangs. In California, the gangs that the
California Department of Corrections and Rehabilitation has deemed the most dangerous are the Aryan Brotherhood, Black Guerilla Family,
Mexican Mafia, Nazi Low Riders, Northern Structure, Nuestra Familia, and Texas Syndicate. Although it is undisputed that these prison gangs are formed along racial lines, and that prisoners typically segregate themselves by race, the California Court of Appeals recently held in In
re Morales that Pelican Bay State Prison could not institute long-term race-based lockdowns because the practice was not “narrowly tailored to further prison security.” However, the Court held that short-term lockdowns based on race are permissible in emergency situations.
Sometime between 2004 and 2008, Pelican Bay utilized a classification system whereby an inmate was classified by one of five groups: White,
Black, Northern Hispanic, Southern Hispanic, or Other. All cellmates shared the same group designation, and therefore were segregated by race. This classification also affected an inmate’s access to programs and activities during lockdowns. Pelican Bay explained that this classification system reflected how inmates already self-segregated themselves, and was an important way to combat long-standing and constant hostilities between different racial groups.
In August 2008, following an incident between Northern and Southern
Hispanic inmates, the prison removed the perpetrators of the assault to the Administrative Segregation Unit and implemented a modified program for all Hispanic inmates, which lasted for a period of three years. Under the modified program, all Hispanic inmates were denied visitation, exercise, religious services, and other privileges. Pelican Bay state prison officials said they made attempts at reintegrating Southern and Northern Hispanic inmates over the years, but inmates from the different gangs would attack each other on sight every time they had an opportunity.
Several months after the fight between the Hispanic inmates, inmate
Morales arrived at Pelican Bay and was placed in the Southern Hispanic group. Morales stated that he was never given a choice to decline an ethnic classification or choose another classification. After submitting administrative appeals, Morales filed a writ of habeas corpus alleging that “prison officials are violating the Equal Protection Clause by segregating Southern Hispanic inmates and imposing atypical and significant confinement on Southern Hispanic inmates, such as no: outdoor recreational exercise; ability to receive property packages; access to trust accounts to purchase [hygiene] and food items from canteen; [and] visits.”

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The Court of Appeals affirmed the trial court decision, which ordered the prison to end its race-based group designation system. Analyzing the case under the Supreme Court case Johnson v. California, which was decided in 2005, the Court held that race cannot be used as a proxy for gang membership and violence, and that any race-based designations must be narrowly-tailored to advance a compelling government interest.
Although the Court found that Pelican Bay had a compelling government interest in handling prison gang violence, the Court found that denying all visitation and enforcing other restrictions for entire racial groups
“appear[ed] primarily punitive in nature, rather than designed to maintain security, especially when imposed on a large group of inmates for an extended period of time.” The Court found that Pelican Bay made no attempt to determine whether inmates they locked down belonged to a gang or were responsible for the violence, and that there were more narrowly tailored means of controlling violence than to restrict entire ethnic groups for extended or indefinite periods of time. For example, the Court pointed to the testimony of a former Warden at Pelican Bay who said that they had success with “a system of evaluat[ing] inmates based upon an individual threat assessment score.” The Court also noted that “CDCR has gang regulations that can be used to separate inmates who are more prone to racially-based gang violence.” This presumably refers to segregation of validated prison gang members and associates.
An interesting aspect of the In re Morales decision was that the Court held that any inmate who exhausted their administrative remedies through the prison grievance system [Form 602] could sue to enforce this order banning long-term lock downs, and would not have to file an independent habeas petition.
While most of the reporting on In re Morales focuses on banning longterm lockdowns, it is important to recognize that the case does not ban all race-based lockdowns. The Court stated that in emergency situations, such as riots, prisons can impose temporary lockdown or other security measures based upon racial or ethnic lines, “so long as the measures are designed solely to restore or maintain calm in the institution until individual responsibility for the source of concern is determined and more permanent measures are implemented. Those steps must be taken as promptly as the emergency situation permits and may never include broad restrictions on a racial or ethnic group that are not strictly designed to prevent imminent violence.”
To illustrate a permissible race-based lockdown, the Court cited to Larry
v. Tilton. In Larry, Calipatria State Prison implemented a modified program for Black inmates after there was a coordinated attack by Black inmates to kill two correctional officers. The modified program lasted only three months, during which time there were additional acts and threats of violence by Black inmates against correctional officers. The prison authorities then began to individually screen Black inmates and released inmates from the modified program if they did not pose an immediate safety threat.
The Court did not specifically define what a temporary lockdown is. But as guidance, the Ninth U.S. Circuit Court of Appeals has held that preventing a prisoner from outdoor exercise for more than six weeks is
“cruel and unusual punishment.”

The Court’s decision to allow temporary race-based lockdowns is important, especially because the vast majority of these lockdowns are not nearly as long as in In re Morales. There are currently pending lawsuits challenging all race-based lockdowns, arguing that they are unconstitutional from day one. The Court of Appeal’s acknowledgement that race-based practices are sometimes necessary for prison security and discipline, as long as the practices are narrowly tailored, may help prisons defend themselves in these lawsuits. More importantly, the
Court’s decision will allow prisons to continue to implement temporary race-based lockdowns for the safety of staff, inmates, and the community, until the specific perpetrators can be identified and segregated.
Mitch
Wrosch is an associate at
Burke. He has four years of specialized experience in correctional litigation, with three civil jury trials. email: mwrosch@bwslaw.com direct: 213.236.2814
Rex Chappell was an inmate at the California State Prison – Sacramento
(CSP-SAC), when his fiancée Phillisa paid him a visit on April 28, 2002.
Philissa arrived at visiting wearing a ponytail hairpiece; the next day, the ponytail was found in the garbage near the visiting area. Staff then searched the entire visiting area and located spandex undergarments in the women’s restroom. Both items tested positive for cocaine residue.
An investigation revealed that Phillisa had a long history of felony drug offenses. Staff then searched Chappell’s cell and located three bottles of methamphetamine, but no cocaine.
Because staff reasonably suspected that, one, Phillisa introduced narcotics to the prison during a visit with Chappell, and two, that
Chappell may have ingested the narcotics, Chappell was placed on contraband watch. Under then regulations, an inmate could be placed on contraband watch per the discretion of a Captain or higher ranking staff. As one may suspect, contraband watch is a temporary confinement in which the inmate is closely observed and his bowel movements are closely examined. Under then regulations, the prisoner was placed in two pairs of underwear, one worn normally, and the other backwards. The two pairs of underwear were taped at the waist and thighs. The inmate was placed in two jumpsuits in a similar fashion, and the jumpsuits are taped in numerous locations. The inmate was also placed in waist chains, which prevented him from reaching his anus. The inmate was then placed in a surveillance cell and observed at all times. To assist staff in this endeavor, the lights to the cell remained on 24 hours per day. The cell did not have furniture, and when the inmate needed to use the restroom, a plastic toilet was wheeled into the cell, and the inmate’s waste was then wheeled out to be examined for contraband.
After six days and three “clean” bowel movements, Chappell was released, and predictably filed a lawsuit alleging that the contraband watch amounted to cruel and unusual punishment under the Eighth
Amendment, among other things. Defendant prison staff filed a motion for summary judgment, which succeeded in having some of the claims and defendants dismissed. However, the district court denied summary judgment as to the Captain of the Investigative Services Unit and the prison’s Warden. These two individuals appealed the decision.

Chappell argued that a combination of the conditions he was subjected to, including 24-hour lighting and the lack of mattress, violated his
Eighth Amendment rights. The Court did not conclusively rule on the
Eighth Amendment claim, but did determine that the defendant prison staff were entitled to qualified immunity, as the law in this situation was not clearly established.
Burke's Correctional
Litigation Team routinely deals with the following issues:
ƒ First Amendment
ƒ Fourth Amendment claims of unlawful search and seizure
ƒ Eighth Amendment excessive force and deliberate indifference to safety or medical needs
ƒ Fourteenth Amendment due process
ƒ Religious claims under the
First Amendment and
RLUIPA
ƒ Section 1983 claims of all types
ƒ Torts including negligence, wrongful death, assault and battery, conversion, Bane and Unruh Act claims
ƒ Class action litigation
ƒ Parole and probation issues
ƒ Employment issues
With respect to continuous lighting, the Court held that, as of the time of the Chappell incident, inmates possessed a constitutional right to adequate lighting. As to whether the lighting was excessive and disrupted Chappell’s sleep, a previous Ninth Circuit case (Keenan v.
Hall) held that an inmate’s allegations of six months of continuous lighting with sleep deprivation were sufficient to create a triable issue of fact on an Eighth Amendment claim. Here, the Court held that Keenan did not clearly establish that the defendant staff violated Chappell’s rights by keeping him under continuous lighting for six days. The discrepancy in time (six months versus six days), and the fact that
Chappell did not claim sleep deprivation, distinguished this matter from
Keenan. Further, staff had a clear penological purpose for subjecting
Chappell to contraband watch, whereas no penological reason was put forth in Keenan for continuous lighting.
Thus, the Court concluded that since at the time of Chappell’s contraband watch, no court had ruled on whether a temporary contraband watch of less than one week (albeit with restrictive conditions and continuous lighting) was unconstitutional, defendants would not have been on notice that their actions were unconstitutional.
Thus, defendants were entitled to qualified immunity. The Court came to the same conclusion on Chappell’s claim that being deprived a mattress (but not a blanket) violated his Eighth Amendment rights.
Finally, Chappell argued, and the district court agreed, that the combination of lighting, mattress deprivation, clothing, and waist chains, had the cumulative effect of violating his Eighth Amendment rights. However, the Ninth Circuit disagreed. The Court determined that although it is true that a combination of conditions that would not on their own violate an inmate’s Eighth Amendment rights may do so when combined, that only applies with the combination of conditions has the effect of infringing on a single identifiable human need, such as exercise, food, or sleep, for example. Here, Chappell did not allege that the combination of conditions deprived him of any single identifiable need. In fact, Chappell never argued that he was sleep deprived while on contraband watch. Accordingly, the defendants were granted qualified immunity on Chappell’s Eighth Amendment claims.
This is an encouraging decision by the Ninth Circuit. While the courts often seem to reduce the tools available to staff who are presented with a dangerous situation, such as an inmate found in possession of narcotics and believed to have ingested drugs. However, the Court here repeatedly emphasized that staff have considerable leeway when acting in response to a legitimate penological purpose such as preventing the introduction of drugs into the prison.

Martin
Kosla is a senior associate who practiced for
4 years in
Australia before moving to
California in 2006. Martin has been defending law enforcement in civil rights cases since 2008. He served in the Royal Australian Artillery before becoming an attorney, and has black belts in karate and taekwondo. email: mkosla@bwslaw.com direct: 213.236.2810
Last month, an inmate had time added to his prison sentence after attempting to escape from a Wisconsin prison by using forged release documents. The two other inmates involved in the foiled scheme are scheduled to go on trial in March.
The first inmate, Eddie G. Evans, was serving a 20 year sentence for a
2003 armed robbery, where he stole a car at gunpoint, led police on a chase, and then crashed with a car carrying five children at an intersection. At the time of his 2003 arrest, Evans was also on parole from a Louisiana prison after serving 18 years of a 35-year sentence for robbery. Evans was scheduled to be released on parole in May 2012, after serving 7 years of his 20-year sentence.
Two forged documents were created relating to Evans’ conviction and sentence. The first document reduced the period of Evans’ extended parole supervision from 13 years to one year. The second document stated that Evans was no longer wanted by authorities in Louisiana, where his parole was revoked after a 2004 conviction for armed robbery with threat of force. Evans was released from the prison on January 21,
2010, but was apprehended shortly after the release. Evans was charged with various charges, including escape, attempted escape, identity theft, and forgery.
The second inmate, Jimmy A. Baldwin, was serving a 45-year sentence after he had been convicted of first-degree reckless homicide in 1995 in
Milwaukee County. A document was forged, reducing Baldwin’s sentence to 20 years, and shortening his mandatory release date. As such, Baldwin was released from the prison on January 19, 2010. He was apprehended and taken into custody on January 26, 2010. Baldwin was charged with escape, identity theft and two counts of forgery
The third inmate, Henry Spencer, had a document that reduced his sentence from 24 years to 10 years. However, prison authorities realized immediately that his documents were fake, and he was never released. Spencer was charged with two counts of forgery and misappropriating identification information.
How were the forgeries discovered? Although Evans was released on his actual release date, the false paperwork purported to reduce his parole term. This tipped off the authorities, as the extended supervision time that was listed on the document didn’t meet the minimum length required by the state.
Baldwin’s forged document was noticed because it had italicized fonts, which an original would not have. Plus, there were errors in the margins. The Baldwin forged document was sent to the crime lab.
Evans and Spencer’s fingerprints were both found on the document, confirming that it must have been a forgery. Prison inmates never touch authentic release forms, which are mailed directly to the prison and not sent to inmates.
At least one of the inmates, Evans, had committed a similar forgery while he was incarcerated in Louisiana. Also, Evans escaped from a
Green Bay prison in 1976, where he was serving a sentence for forgery.

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In 1983, Evans escaped from a Utah prison, where he was serving time for burglary, forgery, and car theft.
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The Corrections Department officials stated that the altered forms looked like authentic documents. However, the county clerk called the forged amended judgment of conviction form “a bad cut-and-paste job.”
On January 28, 2013, the Chippewa County court added one and onehalf years to Spencer’s armed robbery sentence. Evans and Baldwin will be tried next month.
The use of forged documents is not limited to escape attempts. It is not uncommon for inmates to forge documents to create or support a lawsuit, or to get additional privileges, such as a lower bunk or personal shoe chrono. For example, last year we successfully defended an alleged breach of contract case filed by an inmate where the inmate relied on a contract that had allegedly been signed by a CDCR official agreeing to pay for a prison vocational course. It became obvious that the contract was a “cut and paste” forgery, as the date next to the official’s signature was from a document signed seven years before the contract.
These stories should be a cautionary tale for custody staff. Strict attention must be paid to official and/or confidential documents to which inmates should not have access. Look for suspicious things such as different font sizes or type, signatures which are identical, different strength of the ink or printing, and any other unusual variations in appearance or wording. If there is any doubt, the suspicious documents should be examined carefully and compared to those created by the issuing department or kept by the custodian of records.
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