1983 Prisoner Civil Rights Complaints.

Found this brief overview of the 42 U.S.C. Section 1983 Civil Rights law, which is what most prisoner claims fall under. I'm just borrowing from David J. Don's website - I don't know him, so that's not necessarily an endorsement. He does have experience in cases of police misconduct, though - and hangs out in the same office complex as Robbins and Curtin, who kick ass. In fact, David Don and Anne Findling did a presentation together recently on police liability for continuing ed credits, so their peers must respect them both.

Also for families pursuing personal injury or wrongful death cases against the state, Augustine Jimenez III ended up taking Sandra Cunningham's claim.

Those of you considering filing suit against the state need to pay attention to the deadline for filing a Notice of Claim (the grounds for your intent to sue), which is 180 days (6 months) after the injury or death.


For the most part, living prisoners will find that they have to litigate their claims pro per (themselves). So, here are some links to resources to print and send to them:

Here's the form to file a 1983 CR complaint in Federal District Court.

Here's the National ACLU's prisoner rights' page.

Here's the AZ ACLU's resources page.

Here's the National Lawyer's Guild/Columbia Law Review Jailhouse Lawyers Handbook.

And here's the scoop on the hoops and barriers to justice set up by the Prison Litigation Reform Act.

All that said, keep in mind that I have no legal training- I''m basically a jailhouse lawyer; I'm just not locked up myself.

That should be enough to get everyone started.

None of the above attorneys asked me to put in a plug for them, by the way.
(For all I know they'd just as soon I don't.)

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AN OVERVIEW OF 42 U.S.C. SECTION 1983

A) 42 U.S.C. Section 1983

The cornerstone of much police misconduct litigation is Title 42 U.S.C. § 1983, Rev.Stat. § 1979, derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, which provides: 

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

b) THREE BASIC ELEMENTS of a Section 1983 Claim:

1. Who is a Person?

A: Any individual, Supervisors, Entities and Municipalities. 

(a) Individual v. Official Capacity Suits. Courts Have Distinguished Between Suits Against Real Persons in Their "Official Capacity" and Suits Against Real Persons in Their "Individual Capacity." See Kentucky v . Graham, 473 U .S. 159 (1985)

(b) Individuals: A state, county or municipal employee who violates a plaintiff’s rights may be sued individually and be held liable for damages. E.g., Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358,116 L.Ed.2d 301 (1991).

(c) Supervisors: A supervisor may be held personally liable for his/her supervisory failures that result in a constitutional deprivation. Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991); Watkins v. City of Oakland, 145 F.3d 1087, 1093-94 (9th Cir.1998).

i) In Larez v. City of Los Angeles, 946 F.2d 630, 645 (9^th Cir. 1995), the Ninth Circuit Court reasoned that:

Even when a sheriff did not knowingly disregard a plaintiff’s plea to see a doctor, he can be held liable if he knew the jail’s system was so deficient as to expose prisoners to substantial risk of significantly unmet serious medical needs. Thompkins v. Belt, 828 F.2d 298, 304 (5^th Cir.1987).

(d) Local Municipalities - eg. Cities, Counties, Other legal entities school boards.

B: The Follow are Not Considered a "Person" Under Section 1983:.

(a) "The State" is not a person, but individual actors working for the state can be parties. 11th Amendment Immunity. The Eleventh Amendment bars damage actions against state officials in their official capacities. See Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir.1997). In addition, “neither a State nor its officials acting in their official capacities are ‘persons' under [42 U.S.C.] § 1983. Will v. Michigan Dep't State Police, 491 U.S. 58, 71 (1989). This holding would not bar claims for prospective declaratory or injunctive relief against any Defendant acting in an official capacity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-06 (1997)

(b) The United States federal government is not a person, but individual actors working for the US government can be parties in a Biven's claim. Damages suits against federal officials for violation of the Constitution authorized under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court recognized that it had always permitted suits for injunctive action against federal officers if they violated the Constituion and thus allowing a damages action as well did not unreasnably extend federal court jurisdiction. A Bivens action is identical in almost every respect ot cause of action asserted against state officers under Section 1983. Carlson v. Green

C: The case of Private Prisons-

(a) The theories of liability and defenses available depend on whether it is a state prisoner or a federal prisoner bringing the action. The defenses of qualified immunity and the Federal Prison Litigation Reform Act (PLRA) are often not available in litigation against private prisons.

(b) "Under color of law": Private corporations operating state or local prison or jail facilities may be sued under 42 U.S.C. § 1983. Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 n.5 (2001); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003) (reinstating § 1983 claim against jail’s private medical provider).

(c) No Qualified Immunity: Qualified immunity is not available as a defense in a Section 1983 claim brought against privately employed prison guards and their corporate employer. Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100 (1997)

2. What's "Color of law?"

A: "Under Color of" Law and "State Action," Are Coterminous Terms, West v . Atkins: "[I]f a defendant's conduct satisfies the state action requirement of the Fourteenth Amendment, 'that conduct [is] also action under color of state law and will support a suit under § 1983." Lugar v . Edmondson Oil Co., 457 U .S . 922 (1982) : "Under Color of" Law and "State Action" Are Coterminous Terms Because "Congress Thought It Was Creating a Remedy as Broad as the Protection that the Fourteenth Amendment Affords."

(a) off duty officers in uniform.- Mitchell v. Dillard Dept. Stores, Inc., 197 Ariz. 209, 3 P.3d 1129 (App. 2000).

(b) Private companies- working with state.

iii. What's the Constitutional Law and Other Laws?

A: Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.

B: Section 1983 does not grant a cause of action for violations of purely state law.

C: Other Laws to Consider: Americans with Disabilities Act (ADA); Rehabilitation Act, Individuals with Disabilities Education Improvement Act (IDEA).

c) THE NON-BASIC ELEMENTS

i. What are the causation elements?

A: Causation element is from state law proximate cause or "moving force". Implicit element of causation in Section 1983. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 286-87 (1977); Flores v. Pierce, 617 F.2d 1386, 1390-91 (9th Cir.1980), cert. denied, 449 U.S. 875 (1980).

ii. State of Mind Elements? "Section 1983 contains no "express requirement of a particular state of mind." Daniels v. Williams, 474 U.S. 327 (1986)

iii. How Then Are Standards Found for § 1983 Cases? Daniels v. Williams, supra : the § 1983 Standard Is the Same as "That necessary to state a violation of the underlying constitutional right . . . . [I]n any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right ; and depending on the right, merely negligent conduct may not be enough to state a claim." the Supreme Court Has Explicitly Rejected the Idea that There Is One Statutorily-Prescribed Standard for All § 1983 Actions.

d) The Applicable Standards / State of Mind Depend on the Context: Whether the victim is an arrestee, a pretrial detainee, or a sentenced inmate, and the context of when the deprivation occurs. To illustrate we can consider various common fact patterns:

i. USE OF GENERAL FORCE: The General 4th Amendment Standard. To protect the public from a police officer's use of non-lethal force, the constitution requires only that the police officer behave in an objectively “reasonable” manner. Graham v Connor, 490 U.S. 386 (1989). That analysis requires balancing the "nature and quality of the intrusion" on a person's liberty with the "countervailing governmental interests at stake" to determine whether the use of force was objectively reasonable under the circumstances. Graham, 490 U.S. at 396. The constitution does not require a police officer to give a warning or have probable cause before using non-lethal force.

ii. USE OF DEADLY FORCE: More Stringent 4th Amendment Standard. A police officer's use of deadly force is presumptively unconstitutional unless the officer is able to satisfy three constitutional requirements: (1) that deadly force was necessary (i.e., that no non-deadly alternative was available.) See Brower v. County of Inyo, 884 F.2d 13 16 (9th Cir. 1989), on remand from Brower v. County of Inyo, 109 S. Ct. 1378.; (2) the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to him or to others; and (3) if feasible, the officer has given some warning. Quintanilla v. City of Downey, 84 F.3d 353 (9th Cir. 1996); Tennessee v. Gamer, 47 1 U.S. at 3,ll, 105 S. Ct. at 1696,1701.

iii. HIGH SPEED CHASE: Most Stringent 14th Amendment Substantive Due Process Claim: Requires proof of intent to harm. The "Shocks the Conscious Test." County of Sacramento v. Lewis, 523 U.S. 833 (1998)

iv. MALICIOUS PROSECUTION: A Section 1983 malicious prosecution plaintiff must prove that defendants acted for the purpose of depriving him of a specific constitutional right. Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir.2004). Malicious prosecution invokes the Fourth Amendment right not to be arrested without probable cause and thereafter wrongfully prosecuted.

v. USE OF FORCE IN JAILS:

A: PreTrial Detainees: Fourteenth Amendment: Neely v. Feinstein, 50 F.3d 1502, 1508 (9th Cir. 1995) ("[0]ur Fourteenth Amendment jurisprudence has never required officials to have a subjective awareness of the risk of harm in order to be deemed `deliberately indifferent."'); Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (holding that "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the fourteenth amendment.").

B: Convicted Inmates: Eighth Amendment Strict standard: Requires a showing that the force was used "maliciously and sadistically to cause harm." Helling v. McKinney, 509 U.S. 25 (1993); Whitley v. Albers, 475 U.S. 312 (1986) (deliberate indifference means "malicious, sadistic, or wanton intent to harm" rather than good faith effort to restore order); To the extent that the plaintiff must prove a due process or cruel and unusual punishment violation, the immunity defense should be inappropriate. Wilson v. Seiter, 501 U .S . 294, 111 S.Ct. 2321 (1991), Hudson v McMillian 503 U.S. 1, 112 S. Ct. 995 (1992)

 

C: Conditions of Confinement: Farmer v . Brennan, 511 U .S . 825, 114 S .Ct . 1970, 1976-77 (1994) (prisoner safety from other prisoners, transsexual's 8th Am. claim for loss of health or safety after attack by other inmates requires proof of "deliberate indifference" as subjective component and "substantial risk of serious harm," as objective component). Jail officials have a duty to protect inmates from violence at the hands of other inmates. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005)

vi. CORRECTIONAL MEDICAL CARE: The Supreme Court has stated that "deliberate indifference" to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" and amounted to "cruel and unusual punishment," prohibited by the 8th Amendment. Estelle v. Gamble, 429 U .S. 97, 104, 97 S. Ct. 285 (1976). Under this standard, the plaintiff must prove both an objective and a subjective component. Hudson v. McMillan, 503 U.S. 1 (1992); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992).

A: The objective component is that the alleged deprivation must be, objectively, “sufficiently serious.” Farmer, 511 U.S. at 834. A “serious medical need” exists if the failure to treat a prisoner's condition would result in further significant injury or the unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Helling v. McKinney, 509 U.S. 25, 32-35 (1993). A serious medical need has been defined as "one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Ramos v. Lamm, 639 F.2d 555, 575 (10th Cir. 1980).

B: The subjective component is the mental state that the prison officials must avoid -- not to be "deliberately indifferent" to the risk of harm to the inmate. Farmer, 511 U.S. at 834. An official is deliberately indifferent to a serious medical need if the official “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837. Deliberate indifference requires more culpability than ordinary lack of due care for a prisoner's health. Id. at 835. In assessing whether the official acted with deliberate indifference, a court's inquiry must focus on what the prison official actually perceived, not what the official should have known. See Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir.1995). To prevail on an Eighth Amendment medical claim, the plaintiff must “show that the course of treatment the doctors chose was medically unacceptable under the circumstances ··· and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996), cert. denied, 519 U.S. 1029. A claim of mere negligence or harassment related to medical problems is not enough to make out a violation of the Eighth Amendment. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). Simple malpractice, or even gross negligence, does not constitute deliberate indifference. McGuckin, 974 F.2d at 1059. Similarly, a difference of opinion between a prisoner-patient and prison medical authorities regarding what treatment is proper and necessary does not give rise to a § 1983 claim. Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir.1970).

C: Mere negligence or medical malpractice does not establish a sufficiently culpable state of mind. Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980). However, a prisoner does not have to prove that he was completely denied medical care in order to demonstrate deliberate indifference. Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir.2000). Deliberate indifference may be shown when an official denies, delays, or intentionally interferes with treatment or by the way that a medical professional provided the care. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006). To prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the course of treatment the doctors chose was medically unacceptable in light of the circumstances and that it was chosen in conscious disregard of an excessive risk to plaintiff's health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).

D: Negligence is Sometimes Sufficient. A pattern of "repeated examples of negligent acts" by prison officials may constitute deliberate indifference. Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).

e) Not Actionable:

i. Forbidden by Judge-Made, Sometimes Called "Equitable,' Principles, see Younger v. Harris, 401 U .S. 37 (1971) (§ 1983 cannot ordinarily be used to obtain an injunction against state criminal proceeding) ;

ii. Claims against Purely Private Person Alleging that they violated the Fourteenth Amendment are not Actionable. See Blum v. Yaretsky, 457 U.S. 991(1932)

iii. Claims against State Officials for Violation of State Law.

Law Offices of David J. Don, PLLC
301 East Bethany Home Road, Suite B-100
Phoenix, Arizona 85012
Telephone: 480-948-1212 / Fax: 480-422-9029
E-Mail: info@azcivilrights.com

Prison Rape: Our laws will not protect us.

Nor will our silence, so speak out or there will most certainly be neither justice nor peace.

The following post comes from the excellent blog Solitary Watch - appropriate for International Women's Day today, particularly given Arizona's history with the Justice Department on the issue. Men are victims of prison rape all too often too, of course, though we are less inclined to call it what it is. Approximately 300 prisoners will be raped today in America alone. One of every eight children we incarcerate will be sexually abused or exploited in custody.

Please take a few minutes to follow the embedded links and defend those whose voices have been so effectively shut out by our courts and legislatures - and ignored by the communities in which they are imprisoned. If you email us a copy of your comments, we'll probably post it. Send them to prisonabolitionist@gmail.com.

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Prison Rape, the PREA, and the PLRA

March 7, 2011
SOLITARY WATCH

Guest Post by Jennifer Wedekind

Editor’s Note: Jennifer Wedekind is a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law.

The public comment period for the PREA regulations extends through April 4, 2011. To submit a comment or read the full text of the proposed standards, go to this page on the website of Just Detention International, an organization devoted to exposing and eliminating the epidemic of prison rape.

≡≡≡≡≡

The Department of Justice in early February opened a comment period for proposed regulations under the Prison Rape Elimination Act (PREA). Passed in 2003, the Act requires the Attorney General to promulgate national standards for the detection, prevention, reduction and punishment of prison rape. While its ultimate aim is to stem the rampant sexual abuse that occurs in prisons and jails across the country, up until now PREA has largely been an aspirational and fact-gathering statute.

The proposed regulations are structured around recommended standards put forth by the Prison Rape Elimination Commission, established by PREA, in a comprehensive 2009 report on the “the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States.” However, subsequent comments by interested parties citing concerns about prison security and inmate “gamesmanship” have resulted in some of the recommendations being largely neutered. Additionally, a statutory mandate that no regulation impose substantial additional costs on prison authorities may limit the types of programs the regulations can implement. However, the comment period will allow for criticism and revision of the proposed regulations and provides an open forum for prisoner-rights advocates to be heard.

The problem of prison rape that PREA is attempting to address is nothing short of staggering. An estimated 88,500 adult inmates — 4.4 percent of prison inmates and 3.1 percent of jail inmates — reported at least one instance of sexual victimization in the previous year, according to a 2010 Bureau of Justice Statistics report. At a Hughes Unit prison in Texas, the facility with the highest rates of reported victimization, 8.6 percent of inmates reported being sexually assaulted by another inmate. Sexual victimization by guards is equally as prevalent. In the Crossroads Correctional Facility in Missouri, the male facility with the highest rates of guard sexual misconduct, 8.2 percent of inmates reported being victimized. At the women’s Bayview Correctional Facility in New York, 11.5 percent of inmates reported sexual victimization by guards.

When a prisoner comes forward and reports a sexual assault, he or she is more likely to face retribution than redress. Complaining prisoners frequently face retaliatory harassment, discipline or further abuse. A full 25 percent of inmate victims are summarily sent to solitary confinement, according to the Department of Justice’s own numbers.

Additionally, an inmate complaint will rarely result in legal sanctions for the perpetrator or prison authorities, despite the fact that the Supreme Court has held that placing an inmate at risk of sexual assault with deliberate indifference can be a violation of the 8th Amendment. The main obstacle between inmates and a courtroom is the 1996 Prison Litigation Reform Act (PLRA). Congress passed the PLRA in an effort to prevent “frivolous” inmate lawsuits and created considerable hurdles that an inmate must overcome to see his or her day in court. Significantly, any regulations passed under PREA will have to be in compliance with the PLRA, which may hamper its effectiveness in some areas.

In cases of sexual assault, inmates are most often stymied by two PLRA requirements — an exhaustion of all administrative remedies and a showing of physical harm. If a prisoner fails to comply with the technical and often arbitrary requirements of the administrative procedures, or if the inmate misses one of the filing deadlines — which may be as short as 48 hours — his or her right to sue is forever forfeited. Cases are frequently dismissed because of technical errors, because the wrong form was used or because the complaint was submitted to the wrong entity within the sprawling prison system.

In a notable 2003 case, Human Rights Watch reported that sixteen female inmates filed suit alleging systematic sexual abuse by prison staff, including forcible rape, coerced sexual activity, oral and anal sodomy, and forced pregnancies. The federal court hearing the case refused to address the merits, instead taking nearly five years to conclude that the women’s use of informal reporting procedures provided by the prison resulted in a failure to adequately exhaust all administrative remedies.

The PLRA also requires a showing of physical injury — and many jurisdictions do not consider a sexual assault to constitute a physical injury per se. This provision in particular is frequently relied upon to dismiss claims by victims of sexual assault, who frequently have no proof of physical injury due to delay in reporting, lack of additional violence during the assault, or inadequate prison medical providers, who often do not have the resources or willingness to administer a rape kit.

Advocates hope the final PREA regulations will provide more services for inmates and more accountability for prison administrators. However, while the regulations may be able to ease some of the administrative burdens currently on inmate victims, it will not provide a private cause of action and the PLRA will still dictate access to courts.

The proposed regulations would ban cross-gender strip searches, create minimum standards for investigations following a report, require correctional facilities to provide medical and mental health care, and institute a zero tolerance policy for sexual assault and harassment. The regulations also purport to make the prison grievance systems more accessible, however they don’t go as far as most advocates think necessary. It remains to be seen what effect, if any, the regulations will have.

Prison Justice: when the worst criminals aren't the ones doing time.

This article comes out of California, but it is hardly unique to the state. I hear from AZ prisoners and families about the same kinds of abuses and manipulation all the time - it's rare for a prisoner to win a grievance or get very far in court with civil rights or due process complaints. When they do win a grievance at a lower level (some CO's are honest and fair folks), they can still get slapped back down pretty brutally with bogus charges again by people higher up in the chain of command.

More on that theme later this week.

I suspect that some of this has to do with the Prison Litigation Reform Act loopholes and grievance procedures that fail to protect prisoners from having to process their grievance or complaints with the very officers they report have abused them (it's something like turning your police report after being raped into your rapist for investigation; there's an intentionally built-in disincentive to report, which some prison systems exploit to reduce the number of grievances and lawsuits they have to deal with).

I really hope this guy Ojeda is run out of that state on a rail. He'll probably just get a promotion to central office, instead, or a cushy job in the for-profit prison industry. That seems to be how Arizona works (and Mississippi, and Nevada...)

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The Public Eye: Due process for prisoner proceedings allegedly violated

Charles Piller
cpiller@sacbee.com

Sacramento Bee

Published: Sunday, Aug. 1, 2010 - 12:00 am | Page 1A

Last Modified: Sunday, Aug. 8, 2010 - 10:27 am

The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what.

Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.

Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers – lieutenants he supervised – "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."

Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.

By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.

Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.

Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.

One North Kern employee familiar with the Ojeda situation spoke to The Bee anonymously for fear of retaliation. He said officers given the orders were "shocked" that Ojeda would formalize an abrogation of due process.

Neither acting Warden Maurice Junious nor Ojeda returned calls or e-mails seeking comment.

A corrections spokesman said that 33 North Kern inmates did not have good-behavior credits removed, and four of the 77 prisoners received penalties less severe than 90 days forfeiture of good-behavior credits, proving that inmates were not prejudged.

But in the 33 cases noted, all inmates were found guilty and were spared a loss of good-behavior credits only because their paperwork was filed late. The North Kern source said internal records confirmed the remaining cases as pending.

Scott Kernan, corrections undersecretary for operations, last week called Ojeda's e-mail "inappropriate" and "improper," and said it might signal a need for training. But he said it could have been intended to ensure an even-handed approach.

Kernan said he would look into the incident but defended prison due process as having "served the state well (as) a fair and appropriate system, and time-tested."

Told of Ojeda's e-mail, Michael Gennaco, who monitors the Los Angeles County Sheriff's Department for officer misconduct and helped design a similar system for California prisons, said it seemed to violate inmate rights.

Basic fairness depends on "providing inmates with a level of due process," he said, "which isn't much."

Daniel Johnson, a recently retired state prison research analyst, was assigned in 2008 and 2009 to record information into a database from about 10,000 employee-misconduct appeals filed by prisoners over more than five years. He told The Bee that virtually every complaint filed against a correctional officer was rejected by officials, including hundreds of appeals alleging physical abuse "even when medical records supported the complaint."

Of course, prisoners lie about mistreatment; Johnson said many complaints he reviewed appeared unwarranted. But there were many "clear instances," he said, of manipulation by officials "in what I would say is a criminal manner."

Kernan, however, said that "typically, research analysts would not have enough information while inputting data to make such a conclusion." He called corrections "the most investigative law enforcement organization in the state" and one that is continually "rooting out misconduct as diligently as we possibly can."

Blood pooled near his head

Kenneth Hernandez's fate was sealed by a guard's grunt.

That small utterance took on larger significance at High Desert State Prison in Susanville, 200 miles northeast of Sacramento, where Hernandez was imprisoned on drug and weapons charges. He was housed in a gym filled with bunk beds and lockers – typical in the state's crowded prisons.

On May 26, 2004, Hernandez, then 21, had the misfortune of crossing paths with Officer David Sharpe between rows of beds. Sharpe said Hernandez struck the guard's chest with his elbow. Another guard said he heard Sharpe grunt. Hernandez denies any such attack.

In sworn statements, witnesses said that Sharpe, who stands 6 feet tall and weighed about 300 pounds, bear-hugged Hernandez – 5 feet 9 and 140 pounds – from behind. He threw Hernandez head-first into a metal locker. Hernandez fell to the floor, with Sharpe on top of him, then twitched and jerked violently. Blood pooled near his head.

In a subsequent court proceeding, Sharpe confirmed those events but faulted the confined area and said he did not intentionally injure Hernandez.

"He's having a seizure!" some of the prisoners said they shouted in alarm. Sharpe kneeled on the back of the convulsing prisoner.

"Shut the f--- up!" Sharpe yelled, pressing his forearm against the nape of Hernandez's neck, according to inmate witness statements in the prison investigation report.

Hernandez was airlifted to Reno for emergency surgery, his skull fractured.

Back in his cell weeks later, Hernandez suffered from facial paralysis, seizures and vomiting, according to medical records. He also had to defend himself against the serious charge of assaulting an officer.

Hernandez told The Bee he didn't get a fair hearing because key evidence was barred. The prison investigator disallowed photographs of the scene, a complaint by other inmates alleging criminal misconduct by Sharpe, and statements from FBI examiners, according to his report.

Also rejected by the investigator was Hernandez's "stress voice analysis" – a lie-detection method – conducted by High Desert internal affairs, which the inmate claimed proved his innocence.

The investigator did include in his report accounts of inmates, who said they saw Sharpe attack Hernandez without provocation. None said Hernandez attacked the officer and no guards witnessed the event.

But the hearing officer, Lt. J.L. Bishop, said the inmates' testimony "lacks credibility," because they fear revenge from other prisoners for supporting a guard.

Guards said that inmates moved to the floor reluctantly when ordered to during the altercation, Bishop wrote. That reticence, he said, "strongly colors this incident in staff-assaultive tones."

The linchpin was the officer's recollection of the grunt.

Sharpe's grunt, "prior to commanding the inmates to 'get down' strongly indicates that he was struck with force," Bishop wrote, "and without warning."

Bishop found Hernandez guilty and sentenced him to five months' loss of good-behavior credit, a year without family visits and a possible term in the hole.

Six years later, Hernandez is out on parole. He still has trouble with balance, and said in cold weather the clip that secures his skull makes his head ache. As of 2009, Sharpe still worked at High Desert.

'I'll answer to God'

Hernandez's injuries were severe, but his due-process experience was typical of accounts from dozens of inmates in state lockups.

Current and former correctional officers said guilty findings often were preordained informally and hearing officers knew they would be in trouble with higher-ups if they didn't consistently find inmates guilty.

Gerald Edwards, a former lieutenant at Calipatria State Prison east of San Diego, said he conducted about 100 rule-violation hearings in the last few years of his 24-year prison career. In 2009, Edwards alleges he was harassed by superiors after ruling in favor of inmates four or five times.

In one case, a prisoner was charged with intoxication for "walking erratically," Edwards said. The prisoner didn't supply enough urine for a drug test, tantamount to admitting guilt. Yet grounds for a test seemed lacking to Edwards – no staggering gait, dilated eyes, alcohol on the breath or slurred speech, according to inmates and officers who were present.

Edwards' own investigation showed that the prisoner was dehydrated, and could not provide a proper sample.

A guilty finding would have been like a new prison sentence, due to the loss of good-behavior credit, he said.

" 'I'm not going to do that,' I told the warden," Edwards told The Bee. " 'I'll answer to the higher authority on this.' I meant I'll answer to God."

Kernan, the prison undersecretary, called Edwards' claims that he got in trouble for judging inmates honestly "patently false," and "very bad information from a disgruntled employee."

Gene Cervantes, who left corrections in 2007, worked for years evaluating due process at Sierra Conservation Center east of Stockton.

Cervantes said officers often charged inmates with violations they couldn't have witnessed, and at least 80 percent of inmates in the vicinity of major disturbances were found guilty of something.

"(Officials) said, 'He's probably not guilty, but let's call him guilty,' " Cervantes alleged, "because if not this, he's guilty of other things."

Kernan acknowledged that in a chaotic situation, determining who is at fault can be difficult. When occasional mistakes occur, he said, they can be rectified later by prison authorities or appealed in court.

Guards often fabricated rule violations against prisoners they didn't like, said Deb Paul, an officer for nearly 19 years, most recently at California State Prison, Sacramento. Paul said she retired in 2005.

Several officers told The Bee that at least 10 percent of violations improperly lengthened prison terms. If that estimate is accurate, thousands of inmates would have been affected last year.

Inmates can lose time off for good behavior for repeatedly flouting minor rules, such as muttering profanities or stepping across a line on the yard. Others collect the wages of despair: longer time behind bars for attempting suicide. Rule violators serving "life" terms are often kept in prison by the parole board, sometimes adding years to their imprisonment.

Guards often viewed extended sentences as small victories for job security, Paul said. But incarceration costs more than $47,000 per adult inmate per year, so these practices cost state taxpayers at least tens of millions of dollars annually.

'Worst examples imaginable'

Some inmates make a practice of trying to bury officials in appeals – in prison lingo, "602s" – about trivialities such as cold coffee or rudeness.

"In all fairness, most officers are decent folks, and many inmates do abuse the 602 process," Eugene Dey, incarcerated for weapons and drug offenses at the Correctional Training Facility in Soledad, wrote to The Bee.

Cervantes, the former prison official, cited "a pattern of abuse by inmates and a pattern of abuse by staff," and blamed, in part, lax guard training.

But if both sides abuse the system, the party with the power tends to win. Not only are nearly all prisoners charged with rule violations ultimately found guilty, they usually lose their appeals, according to prisoners and officers.

"When the 'man' breaks the law, they set the worst examples imaginable," Dey wrote. "Removing the only legitimate means to have our issues heard excuses some of (the violations) prisoners commit."

At the California Correctional Center in Susanville in 2006, Dey, a Sacramento native, was sent to the hole after a guard labeled him "skinhead" and charged him with stirring racial unrest.

The inmate, who once wrote an opinion article for The Bee calling for reform of California's "three-strikes" law, denied the charge. He said that he had no history of racial incidents, tattoos or affiliations, and that he writes briefs for nonwhites and whites.

Dey filed a misconduct appeal against the guard, claiming that he was singled out for his activism. A deputy warden, Dey alleges in his court filings, unilaterally downgraded Dey's complaint to a "living condition" appeal – in effect, holding the officer blameless.

Such downgrades are common, said Johnson, the former corrections analyst who studied inmate appeals. And nearly four in 10 appeals are "screened out" – rejected as out of compliance with filing rules, according to corrections department data.

Officers who requested anonymity, retired officers, parolees and prisoners all told The Bee that when appeals do go forward, whatever the facts, the accused officer is nearly always exonerated.

Most allegations of misconduct go nowhere due to a bureaucracy "well designed by staff to discourage, in my opinion, the filing of complaints against staff," Cervantes said.

Dozens of inmates, as well as officers contacted by The Bee, agreed that appeals often disappear in many of the system's 33 prisons.

During frequent lockdowns, when inmates rarely leave their cells, "trying to get photocopies of documents is virtually impossible," said Paul Mitchell, an inmate at Salinas Valley State Prison, in a letter to The Bee. So inmates have no copies to prove their original documents were lost.

Johnson concluded after processing 10,000 appeals that regardless of merit, thousands were systematically quashed on technicalities.

"I am sure they sign these documents believing that no one will ever see or question their decision," he told The Bee, "and often render their decisions based on misguided loyalty."

To illustrate the fairness of prison due process, corrections officials said that in fiscal year 2008-09, inmates appealed more than 13,000 rule violation charges, and about 18 percent were granted.

But the data are misleading because many complaints are "partially granted." For example, an inmate who claims physical abuse often asks not to be retaliated against for filing an appeal. The anti-retaliation request often is granted.

'Daniel into the lion's den'

Another factor undermines the appeals process, according to prisoners and former officers: fear.

Edgar Martinez, back home after a recent term at High Desert, claimed that guards trampled his belongings and strip-searched him in a snow-covered yard. He said he watched guards provoke fights among inmates and tell others, "this 602 needs to go away or we're going to make your life a living hell." Afterward, Martinez said, he was too terrified to protest mistreatment.

In one 2007 case, said Edwards, the former lieutenant, several inmates were brutally beaten by guards and denied adequate treatment. None filed a complaint. "Nothing ever came of that incident. Not a damn thing," he said.

Inmates sometimes refrain from reporting abuse to avoid being shipped to other facilities. "There are staff who say, 'He's a pain, get rid of him,' " then transfer the prisoner to a location dominated by his racial or ethnic enemies, Cervantes said, "like Daniel into the lion's den."

Kernan defended the process for discovering and punishing misconduct, which includes independent oversight, court supervision and avenues for inmates and officers to complain anonymously to outside watchdogs.

The state Inspector General's Office closely monitors some investigations of serious lapses by staff, including excessive force, sexual misconduct and dishonesty. Last year it agreed with the prisons' handling of the vast majority of such cases.

Lee Seale, corrections deputy chief of staff, called that record "a departmental success story."

In 2009, 42 officers or sergeants were dismissed in misconduct cases involving prisoners. That total did not include those fired for granting prisoners special favors.

However, when officers caused moderate to severe inmate injuries – or deaths – discipline was relatively light. The Bee examined all 15 such episodes monitored by the inspector general in 2009, involving 32 officers. Eight were dismissed; most received small pay cuts or short suspensions.

In one case, an officer needlessly punched a prisoner in the head, broke his elbows and lied about it in reports. The penalty: a 12-day suspension.

An officer assigned to monitor inmates on suicide watch failed to do so and falsified his records. When he eventually did his check, he overlooked the fact that one prisoner was dead. He "also failed to notice a note the deceased inmate posted in a window on his cell door," the inspector general's report notes, "indicating his intent to commit suicide."

That officer's salary was cut by 10 percent for two years.

Such cases suggest that California prisons lack a workable process to impose reasonable discipline, said Elyse Clawson, a former correctional official in two states who served on Gov. Arnold Schwarzenegger's 2007 expert panel that examined the state prison system.

"You have to wonder," she said, "if there is a (prison) culture that assigns much value to what happens to inmates."

Editor's note: This story was changed Aug. 2 to correct that Sierra Conservation Center is east of Stockton, not west of Stockton.

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