FDOC CORRECTIONAL OFFICERS INDICTED BY FED~

.Fort Myers, FL - Ten Florida Department of Correction's (FDOC) correctional officers were indicted July 10,
1998, on federal charges returned by a
ft:deral grand jury in the death of a state
prisoner. The prison guards, two ofwhom
were high ranking officers, were each
charged with a seven-count indictment-for
violating the civil rights of prisoner John
Edwards. Seven the officers were from
Charlotte' Correctional Institution located .
near Fort Myers and two were from
Zephyrhills Correctional Institution located near Tampa.
The grand jury found that prisoner
John Edwards had been subjected to numerous beatings over a several day period
before he eventually attempted to commit
suicide by cutting his own wrists, and
then chained to a steel bed, beat again and
left to bleed to death by the the officers.
Edwards who reportedly was HlV
positive had allegedly bit a· corrections
officer at Zephyrhills CI in August 1997,
According to the indictment, the officers
then plotted to injure, threaten and
intimidate Edwards and to retaliate
against him because he bit a colleague.
The beatings started at Zephyrhills CI
and then continued when Edwards was
transferred to the Charlotte CI prison.
The corrections officer allegedly

or

kicked and beat Edwards, repeatedly
slammed him into walls, all while he
was wearing handcuffs. After three days
of being bnrtalized Edwards allegedly
slashed his arm in an attempt to get
away from the beatings. He was then
moved to a psychiatric dorm at Charlotte CI where after another beating
while chained naked to a bed he finally
bled to death after 12-hours without
medical treatment
"He bled to death without receiviJ)g
sufficient medical care," said U.S. Attorney Charles R. Wilson. Edwards was
reportedly found dead, still chained to
the bed, August 22, 1997. A medical
examination after his death showed several cuts and bruises, but concluded that
he died of blood loss from the selfinflicted wound. "He did not die as a
result of the beating. He died as a result
of bleeding to death over a 12-hour
period," said Assistant U.S. Attorney
Doug Malloy.
A tenth FDOC officer, John Robbins, apparently blew the whistle on the
others. He was allowed to plead guilty
to a single conspiracy count the same
day the other indictments came down
before U.S. Magistrate George Swartz.
Each of the correctional officers
faces charges of up to ten years in

prison and a fine of $250,000 on each
count, ifconvicted.
The officers charged were: Capt
Donald B. Abraham, 38, of Punta
Gorda; capt Kevin W. Browning, 33,
of Punta Gorda; Michael Carter, 41, of
Port Charlotte; Thomas J. McErlane,
38, of Port Charlotte; Robert M. Shepard, 48, of Port Charlotte; Gary T.
Owen, 29, of Zephyrhills; Joseph P.
Delvecchio, SO, of Zephyrhills; Paul R.
Peck, 31, of Port Charlotte; and,
Richard Wilks, 30, of Port Charlotte.
"I am not surprised that this occurred in a Florida prison," said Teresa
Burns, FPLPs publisher, "I am only
surprised that it resulted in itidictments.
Such beatings and abuse of prisoners
does not appear to be uncommon, my
office receives approximately 10-J5 reports of such abuse in the Florida system each month. The abuse, and possibly deaths, are expected to increase nqy
where prisoners have had their access to'
the courts severely obstructed. That access was basically the only check and
balance on correctional officers who
often are known to the FDOC to
have a history ofabusing prisoners, yet
are seemingly encouraged to engage in
more of the same by not being fired and
in cases being promoted to positions

CENSORING READING MATERIAL
ADA UPDATE
NEW PROPERTY DEFINITIONS BECOME EFFECTIVE
SMOKING GUN

IN THIS ISSUE
•

lo000-o

NOTABLE CASES
1998 LEGISLATIVE HIGHUGHTS
' PROPOSED RULES UPDATE

2
6
8
8
9
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overseeing other officers of the same
stripe."
.
The above nine officers were fired
after the FDOC realized that federal indicnnents were likely.
This is reportedly the largest single
indicnnent of prison guards in Florida's
history stemming from a prisoner's
death. Federal investigators investigated
this case for almost a year before the
grand jury returned the indictments.
While the justice deparnnent officials did
not actually accuse the FDOC ofattempting to cover up for the officers, little
active cooperation from the FDOC was
forthcoming until after the indictments
came down.
On August 3, 1998, the FDOC announced that another officer had been
fired in cOMection with Edward's beatings and eventual death. Sgt. Shawn
Grueber, who had just transferred to
Charlotte CI from Desoto CI, testified
before the grand jury just days before the
indictments were handed down against
the other officers on July lOth. Before
the grand jury Grueber revealed what he
had withheld from federal investigators
during their investigation. According to
Grueber, while he was working in the
psychiatric wing's housing unit at Charlotte CI a group of guards called him
over to where they were beating Edwards
and told him "This is how we do things in
Charlotte." This apparently occurred after Edwards had slashed his arms with
the sharpened edge ofan ID card clip and
was chained down naked on the metal
bed. The guards, in Grueber's presence,
then kicked and beat Edwards some
more.
Even though Grueber has not been
iRtticted, the FDOC finally. concluded
that he had joined in the assaults on
Edwards and had failed to file the use of
force reports required whenever force
is used on a prisoner. Pederal investigators had already concluded that a number of the indicted guards and supervisors had filed false reports concerning
the incident. and that these reports had
been "rubber-stamped" by those higher
up. The FDOC has went into damage
control mode and aMounced that Grueber's firing is the first in a series of
disciplinary actions expected to be
taken in connection with Edward's
F.P.L.P. VOLUME 4, ISSUE 5

abuse and death.
Prison activists are skeptical of the
FDOC really taking any meaningful action
to reduce prisoner abuse. The FDOC has
been promising to straighten out Charlotte
CI for years,. but has been unable, or unwilling, to do so. Between 1991 and 1994 .
Charlotte CI had twice the prisoner-onprisoner serious assault rate as any other
prison in the state. Charlotte CI has experienced guards participating in racist rallies
that resulted in indicnnents a few years
ago.
During 1993 federal investigators
found that a massive fraud scheme was
being perpetuated by the superintendent of
Charlotte CI and several high ranking officers at the prison regarding overtime pay.
.Prisoners have alleged that officers at
Charlotte CI have for years used prisoners
to assault other prisoners. Numerous prisoner lawsuits are pending against Charlotte
CI because of the uncontrolled violence at
the prison. This would be a good opportunity for the FDOC to finally clean up Charlotte CI and other prisons around the state
that continue to condone prisoner abuse.
This is not something that one would want
to hold their breath waiting for, however.
[Sources: St. Petersburg Times, Ft. Walton
Bch. Daily News] •

FLORIDA PRISON LEGAL
PERSPECTIVES
POBox 660-387
Chuluota, Florida 32766
n.o

Publishing
Division of:
LlGALAlDo_noN.INC.

A Not-For-Profit Organization
(407) 568-0200
Web: http://mcmbcrs.lIOJ.comIfplplfjllp.hlml

FPLAO DIRECfORS

TERESA BURNS
BOB POSEY
DARRYL McGLAMRY
DAVID W. BAUER., Esq.
FPLPSTAFF
Pulllls!ler
Editor

TERESA BURNS
BOB POSEY

Layout Editor JOHN OAKS

Resurdl

SHERRI JOHNSON

Admin. Assls. USA FAULKNER

TRACIE ROSE
FPLP ADVISORY BOARD
WILLIAM VAN POYCK
PHDJP BAGLEY· SHARON SIMMONS
1CRRY VAUGHN. MICHAEL LAMBRJX
ALAN J. canoN • JAMES QUIGLEY

JAMES TAYLOR. JUDIE IDGHTOWER
CARL WEU.S • GLENN SMITH
BRIAN MORRIS· EARN HOWARD
LINDA 00T1lJEB - SAIl.YWILCOX
JANE PRAlT • PAUL ADAMS
KIMBERLY PEOPLES· PCI'ER BLANTON
JAMES MAJOR· ENRIQUE DiAl
SCOTIGRAY

CENSORING READING
MATERIALS
The FL Department of Corrections
[FDOC] recently implemented new regulations at Chapter 33-3.012 (5110/98)
F.A.C., and Policy and Procedure Directive (PPD) 7.01.01' (5/13/98), concerning
prisoners' access to admissible reading
materials through the mail and procedures
for rejecting such materials.· FPLP is concerned that many of the new regulations do
not appear to comply to established substantive or procedural law. Additionally,
certain provisions in the PPD are not contained in the Chapter 33 Rules yet appear
to meet the definition of "rule" at Ch.
120.52(12), F.S., that have not been formally adopted according to Ch. 120.54,
F.S.
During early June FPLP received a notice of rejection from Jackson CI Work
Camp indicating that FPLP. Vol. 4, Iss.
3, had been rejected by that institution
for an alleged "threat to security or or-

FLOIUDA PRISON LEGAl. PERSPECTIVES it plbli>Ilod bi·
IlIIIlllhIy by FIGridI ~ Lcpl Aid O<pNzalion, Inc. IS232
E. CoIolliaI Dr.• o.t&noIo. FI 32128. MailUla AddIea: fPLAO.
P.O.1Ioa 660-317. ~ FL 32766.
FPLP it • Noa I'ra& ~ filaIsiIIa GO lIal FbilIa
prlaott IIld crlmlIlII jwllco QSIalU wlIb IIlo sotI at.-idilla •
¥dlIde lilt --. InfamIIIlon IIld _
&ll'<eIilIa prise-.,
IIldt fImlIia, filaldI IIld Jo\'Cd llllOI,
IJla gcnaal pollIic at
FIori<lIIIld tbe US RaluaioI> til
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COIllIllanalt IIld oppooIIll1iIia,.....-ma.... CIllIlll ..... Cot
priIatlcn, IIld pnllIIOIina I<CClIlItlaIlilily or prison cftlciab. uo
III lJaIcs FPLP is da/sned to addIaI
1110 ilItonMIIca ill fPLP dcco aaa -..riIJ n&a IIlo
cplolom at IIlo """"'*t lUll NlliaIioa at FPLP iI . . .
pcSIIlIe by Ycu, IJla .... IIld JltPIlClftC'.1!lIalIatl1Uhocriptica
IIld pncnl cIonatlcN. iIIlqueIlod clooaticaI Cot. """ JC&t
tuhalpdclIuc S ~ SIOoIl<e citi=\ m·iIlIIitIltlonl
Ct bwiDc:ua.
FPLP radcn IIld IIqlpCIICn are l:mlod to-.illW
utida, __ iDfcrm&lIcn, IIld "'IIIlCJlioI:I Cot pcujlIIo pod>liatiaa
s..=ip!ion \lallIllcl\1 wiD be 1daIowlcds<d by the ......
ICribot'I recdpI of the <umIll i.... at FPLP. FPLP'. no.·
JII«Iloy wlImtccr 1IaIJ'_ rapoad 10 ~ rot ItpI ad\'ice
Due 10 """"'" atmalJ IIld IlJlF IilIIiwlo:Is III ~
_
be rapolllloI to. boa IIIl1l1i1 dcco Raivc iDlIivilbiaI

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I'amiIoion I. glIIIIaIlO rcprinll!lJlai&ll. FPLP "",Yidod
fPLP IIld lIlY iDdicolod JIIIhor ... idaJliBod ill IJla 1tpinI.

NonCE

The infomllltion in this pubJiClition provides news
lind opinion fiom VlIriaus sources lUld llllIy not provide sUfficient infOl11l4lion to de4I with 1I1Cga! piob/em. Neither the P.l!blishcr. nor ~ WIIII'l1IIlS or
reJ!rescnts the suitibility or the infOfl1llltion in this
publiClition for instituting lIllY legal lICtian. An
ilUOmcy or other knowlciJ8C.lIble j)CfSon in a dispuled o.rea should be collluited for cxpcricm:c in
IcpI~. J'bis JlU~lic:lIlion should not be relied on

as lwthonlabvc C1'b1ion.

Page 2

der." Following that notice, we received
information that prisoners at other institutions were having Vol. 4, Iss. 3, also
rejected based on the Jackson CI rejection
(this is one of the new policies that do not
appear to comply to established law). Our
staffappealed the Jackson CI rejection, as
did some of those prisoners who had their
issues rejected, to the FDOC central office
and we were notified on June 15, 1998,
that the rejection had been overturned
by the FDOC Literature Review Committee. All prisoners should have received
their copies of Vol. 4, Iss. 3, that had been
withheld. All institutions were required to
be notified that the "rejection" was overturned.
FPLP prisoner subscribers are advised that FPLP staff will appeal every
,ejection of FPLP that we are notified
about. If a rejection occurs. prisoner subscribers also need to appeal such rejections directly to the central office under
the new reading material grievance
appeal procedures at Rule 33-3.012(6),
F.A.C. If the new rule$ and PPD are not
changed to comply with established law it
is suspected that litigation is going to be
necessary.
The perceived problems with the new
rules and PPD are numerous. In many
instances they appear to intentionally circumvent established constitutional law,
and statutes of the state. Below is discussed some of these problem areas that
would be equally applicable to any publication that is rejected under these new
rules and policies:
At Rule 33-3.012(5)(a) is stated
with mandatory language that: "The
Superintendent or designee shall reject
any publication ... For'the purposes of
rejection of publications, the superintendent's 'designee' shall be limited to the
assistant superintendent or chiefof a community facility."
That rule would basically appear to
comply with the guideline of the U.S.
Supreme Court that only a superintendent of a particular institution may reject
a publication. In Thornburgh v. Abbott,
109 S.Ct. 1874, at 1883 (1989), the court
stated:
[W]e are comforted by the individualized
nature of the determinations required by
the regulation. Under the regulations.

F.P.L.P. VOLUME 4, ISSUE 5

no publication may be excluded unless the
warden himself makes the determination
that it is "detrimental to the security,
good order, or discipline of the institution or ... might facilitate criminal
activity. " [Federal Code .cite omitted].
This is the controlling standard A publication which fits within one of the
"criteria" for exclusion ~ be rejected,
but only if it is determined to meet that
standard under the conditions prevailing
at the institution at the time. Indeed, the
regulations expressly reject shortcuts that
would lead to needless exclllSions. See
sec.
54o-70(b)
(nondelegability of
power to reject publications): sec.
540.71(c) (prohibition against establishing an excluded list ofpublications). We
agree that it is rational for the Bureau to
exclude materials that. although not necessarily "likely" to lead to violence, are
determined by the warden to create an
intolerable risk ofdisorder under the COnditions of a particular institution at a
particular time.

The court stated that it is the
"controlling standard" that "no publication
may be excluded unless the
him:
~ makes the determination •..." The
court was "comforted'~ by the individualized nature ofthe determinations, i.e., that
only the warden [read superintendent in
Florida] may reject a publication, and the
court noted that they approved the regulations being examined in Thornburgh
because the regulations had a provision
that the warden's power to reject publications was nondelegatible.
Florida stretches the nondelegation
with Rule 33-3.012(5)(a) by authorizing
the superintendent to delegate his
power to reject a publication to an assistant superintendent or chief of a community facility. But, that is no big problem. A
court would probably hold that an assistant superintendent or chief of a community facility had enough knowledge of the
operation and security problems ofhislher
particular institution to make an informed
determination whether to reject a publication or not. No, the problem is. that the
FDOC intends to circumvent the superintendent totally in certain instances. Even
though Rule 33-3.012(5)(a) states that the
authority to reject is limited to the superintendent or two specified designees, the
new PPD is a much different matter. And

mm

the PPD, not the Chapter 33 rule, is what
the FDOC ~ intends to follow.
PPD 7.01.01 VII. A. I. states:

If the

publication has been rejected at
another location, the mailroom supervisor shall prepare a rejection notice for
each inmate receiving same, using the
information provided in the "REVIEW"
eform posted on the Admissible Reading
Material Bulletin Board, and sign it.

Only in this instance can a rejection
notice be signed by a mailroom
supervisor. This is authorized in this
instance because the mailroom supervisor is not the rejecting authority; rather,
the rejecting authority is the Superintendent or designee at the co"ectiona/ institution that posted the rejection notice on
the Admissible Reading Material Bulletin
Board [this "Board" is an FDOC com-

puter network site that is accessed at
every institution mailroom now} [these
paragraphs revised 8/6/98, see End Note].
This PPD greatly expands the mandatory limits of Rule 33-3.0l2(5)(aHb!! the
only persons authorized to reject a publication is the superintendent or assistant
superintendent or chief of a community
facility. This PPD has not been adopted as
a "rule" even though it exceeds the
adopted rule of Chapter 33, in apparent
violation of the above stated F.S. 120.54
required rulemaking statute. See also:
PPD 1.01.01 II. A., and 1.02.02111. B.
Even more problematic is that the
delegation of the authority to reject publications to a mailroom supervisor does not
comply with Thornburgh, as above. Mailroom officers are usually low ranking officers and could not be said to be knowledgeable enough about the security of
a "particular institution at a particular
time" to make an informed decision to
reject a publication. There is another
problem apparent.
The PPD "claims" that the mailroom
supervisor is authorized to make such a
rejection because "the mailroom supervisor is not the [real) rejecting authority; rather the rejecting authority is the
Superintendent or designee at the institution that posted the rejection notice ...."
What. this means is that not only does the
PPD provide that someone other than the
superintendent or assistant superintendent

.

Page 3

at your institution is "authorized" to reject
a publication, but also that the publication
will be rejected in such case by a mailroom supervisor based on a determination
by a superintendent, or his designee,
who is at another institution. Such
superintendent or designee certainly is
not informed of security conditions at
your 'particular institution."
Look back at what Thornburgh said
above. The court specifically stated it was
comforted by the fact that the regulations
only allowed a publication to be rejected
by the warden himself based on a
determination "under the conditions prevailing at the institution at the time." And
the court agreed that such rejection
should only occur after consideration is
given to the conditions of a "particular
institution at a particular time."
A superintendent at ~ institution cannot "authorize" publication rejections at your institution. The superintendent [warden) can only authorize
rejection of publications at hislher institution; the institution where he/she is familiar with the security conditions. Even
worse, when you read and understand exactly what the above referenced PPD is
truly proposing. combined with the clear
violations in PPD 7.01.01 VI. B., you will
see that the FDOC intends that one superintendent at one institution will be able to
"authorize" the rejection of a publication
at every institution in the state. This definitely violates ThornbUrgh.

sexual conduct is imminent. The depart- gerated response to concerns of institument sholl have the authority to prohibit tional security and safety.
admission of such materials at a
particular state correctional facility
A prison warden or superintendent may
upon a determination by the depart- rtYect a publication only ifit is detrimenment that such material or publications tal to the security, good order. or disciwould be detrimental to the safety, pline ofthe institution or ifit mightfacllisecurity. order or rehabilitative interests tate criminal activity. However. the pubof a particular state correctional facility lication may not be rejected solely beor would create a risk of disorder at a cause its content is religious. philosophiparticular state correctionalfacility.
.cal, political, social. or sexual. or
because its content is unpopular or
It is obvious that the drafter of the repugnant Thornburgh
V, Abbott.
above law was familiar with Thorn- (1989) 109 S.Ct. 1874. Correctional
Jmm!L note that the word particular is officials may prohibit sexually explicit
specified three times in this statute. It is materials where the materials could reaequally obvious that the drafter of the new sonably be expected to circulate among
FDOC rules and PPD was either not famil- the inmates and cause a potentially disiar with Thornburgh, or, more likely, in- ruptive environment because of the contentionally sought to circumvent Thorn- tent of the material Lambr/x v. Dugger
Compare PPD 7.01.01 VI. B. with (1992) FlaApp DI610S02d 1366.

mmm.

the statute, note the way in which that PPD
seeks to expand "particular institution" to
A broad definition of ''sexual nature"
the "entire department."
.
as content in reading material would inThe legislature was aware of the poten- clude articles in magazines such as Costial problems that could be caused by this mopolitan. Even Time and Newsweek may
statute if not strictly complied with. In conlain articles dealing with content ofa
the Final Bill Analysi~_ & Economic Im- sexual nature such as safe sexual pracpact Statement notes of the Committee on tices or homosexuality. In addition. there
Corrections for the FL House of Repre- are numerous publications such as rosentatives, dated June 23, 1995, concern- mance novels which have content of a
ing House Bill 2531, which examined the sexual nature. If the definition of "sexual
above proposed statute before its adop- content" is broad or vague, it may be
tion, is stated at Section III. D. 18.:
attacked on grounds that it violales an

inmate's or a publisher's constitutional
right offree speech.

The language lacks specificity with
regard to the definition of reading material with content of a "sexual nature. It.
The section would permit the Department
to adopt rules which may or may not be
much different than rules currently· in
place. Under current rules and case low.
reading material which contains text and
pictures ofsexual behavior or pictures of
unclothed males and female in provocative poses. may be received by it'mates.

Depending on how Ihe Department
crafts the rules in response to this section
and how .the rules are implemented at
each correctional facility, this section
may result in additional litigation against
the State.

materials or publications with content Amendment where it is reasonably rewhich depicts sexual conduct as defined lated to a legitimate correctional obby sec. 847.001 or presents nudity in such jective. such as the protection ofprison
a way as to create the appearance that security. and does not represent an exag-

• First, the superintendent of your
particular institution must determine that

Now let us look at a specific type rejection that is occurring that is of interest to
many prisoners: rejection of sexually explicit materials. As all Florida prisoners
who subscribe to adult-type magazines
now know. the FDOC is engaged in
wholesale rejection of such magazines.
Courts have split on whether such materials may be rejected or not, that will not be
addressed here. But are the rejection
"procedures" themselves in compliance
A prison regulation which impinges on
with the law?
an inmate's constitutional rights is valid
In 1995 the FL legislature added the as long as it is reasonably related to
following provision to F.S. 944.11:
legitimate correctional interests Turner v.

For the FDOC to comply with the
above state law, two (2) determinations
must be made by the superintendent [the
statute uses the word "department," but
Thgrnburgh noted the individualized na·
ture requires that the "warden himself' of
the particular institution must make the
&!bJJ! (1989) 482 US 78. A particular determination) before sexually explicit
(2) The department 'Shall have the au- restriction agecting the receipt ofpublica- reading materials or publications are authority to prohibit admission of reading tions is permissible under the First thorized to be rejected:

F.P.L.P. VOLUME 4, ISSUE 5 .

Page 4

the material "depicts sexual conduct as
defined by sec. 847.001 or presents
nudity in such a way as to create the
appearance that sexual conduct is imminent."

superintendent at that particular institution that the material or publication presents a threat to security or order of that
particular institution. Otherwise. you have
a rejection based purely on the "content"
of the material, which the Supreme
• Second, the superintendent must Court in Thornburgh: Turner v. Safely,
determine that the "material or publica- 107 S.Ct. 2254 (1987); and Procunier
tions would be detrimental to the v. Martinez, 94 S.Ct. 1800 at 1811
safety. security. order or rehabilitative (1974), condemned as "content-based
state restrictions" and "suppression of expresinterests of a particular Uilii or
correctional facility or would create a risk sion."
Without a determination that the mateofdisorder at a particular Uilii or
state
rial, regardless of the content, is detricorrectional facility."
mental to security or order of the instituAccording to this statute. these two de- tion. then the rejection cannot be said to
terminations must be made to reject sexu- be "neutral." See: Thornburgh at 1882-83.
ally explicit material. And, these two Failure to determine, and state on the
determinations must be made in relation to rejection notice [Martinez due process
conditions at the particular institution requires notice to prisoner of reasons for
where the materials are being rejected. rejection]. that it has been deteimined
The "security" determination is th~ that the material or publication is!u!1b
most important. and essential, of the two sexual within the meaning of F.S.
determinations that must be made. The 944.1 1(2), and a threatto "safety. security.
Thornburgh court applied the four-prong order...." makes the rejection unauthorized
test that was established in Turner v. by the FL statute and unconstitutional purSafely. 107 S.Ct. 2254 (1987) in deciding suant to the First and Fourteenth AmendThornburgh. The first prong is that the ments. [While Martinez was overruled
reasons for the rejection must be in Thornburgh concerning the standard
"legitimate and neutraI." Security reasons to be applied when addressing the constiwould meet the "legitimate" aspect of this tutionally of prison rules regarding censorprong [Thornburgh at 1882]; but without ship, the due process requirements estaba determination that the material would lished in Martinez survived Thornburgh.
present a security threat, it is prohibited e.g. Lawson v. Dugger. 844 F.Supp. 1538.
to base the rejection solely on the contents 1543-44 (S.D. Fla. 1994). and were even
of the material. such would not be clarified with the Thornburgh court's specific approval of the due process protec"neutral". Id.
Rejection notices are being received tions contained in the regulations being
by FL prisoners on adult magazines that examined in that case..M. at 1878].
And where the rejection notice is
only state that the material is being
rejected because it "depicts sexual con- signed by a mailroom supervisor. instead
duct as defined by sec. 847.001 or ...." of the superintendent, based on a determlAbsolutely no determination is being nation by a superintendent at another instiMted on many of the actual rejection tution. then another violation exists as disnotices·;that the material is both sexual cussed above.[See End Note].
This article discusses only some of the
and "detrimental to safety, security,
order or rehabilitative interests" of that more serious and obvious procedural due
particular institution. This is a serious er- process problems with the FDOC's
ror on the FDOC's part. Compare former rejection of reading materials/publicaRule 33-3.012(4)(g) (repealed 5/10/98) tions under these new rules and policies.
with new Rule 33-3.012(2)(i) and 0> There are several other problems that be(EfT. 5/10/98) [security threat determi- come obvious when one becomes fully
nation included in former rule concerning familiar with the law in this regard.
The admissible reading material rules
sexual content. missing from new rule].
Publications cannot be rejected be- which the FDOC had adopted and had in
cause they are simply "sexually explicit:' efTect before May 10. 1998. were
There must be a determination by the generally in compliance with the law
[Thornburgh]. The FDOC had been forced

om
om

F.P.L.P. VOLUME 4, ISSUE 5

to adopt those former complying rules during the case of Lawson v. Wainwright ene'
Dugger. ne' Singletarv), 641 F.Supp. 312,
affin part, remand in part 840 F.2d 781. reh
den 840 F.2d 779.cert grand vac 109 s.a.
2096. on remand 897 F.2d 536, on remand
844 F.Supp. 1538. rev 85 F.3d 501. adhered to 844 F.Supp. 1538. rev 85 F.3d 502
(11th Cir. 1996). Now that that case is
over. the FDOC has went back to rules and
policies that do not appear to meet constitutional muster.
Another area that needs to be looked at
is that the former FDOC rules provided
that a prisoner could look at rejected materials [as long as that would not be a security
threat] before filing an appeal on the rejection. Former Rule 33-3.012(7) (Repealed
5/10/98). The new rule repealed that
provision. Yet. such review appears to be
required by due process. . See: Montcalm
Pub. Com. v. Beck; 80 F.3d 105 at 109 (4th
Cir. 1996). cert den Angelone v. Montcalm
Pub. Com. 117 s.a. 296 (1997).
Another problem area is that when the
system-wide rejections occur under PPD
7.01.01 VII. 1.. the rejection notices being
given at the "other institutions" based on
the original rejection do not contain
notice of the "specific reasons" for the
rejection that identifies the specific
material in the publication that lead to
the original rejection. This practice does
not provide due process. ~ee: Lawson v.
~. 840 F.2d 781. 786-87 (11th Cir.
1988). and 844 F.Supp. 1538. 1544 (S.D.
Fla. 1994). The practice further appears to
violate Rule 33-3.012(4)(b) (specific reasons for rejection must be given). A prisoner who does not receive notice identifying the specific "written or pictorial matterti that was found objectionable can
hardly mount an effective appeal of the
rejection. The prisoner who has material
rejected without notice of the specific
"written or pictorial matter" that was
thought objectionable cannot be forced to
rely on the appeal of the first prisoner who
had the material rejected, at another institution. where the first prisoner was the only
one noticed of the specific written or pictorial matter that was thought objectionable.
This error obstructs those later prisoners
receiving rejection notices from being able
to mount an effective appeal of their
particular rejection at their particular
institution. Due process is not provided in

Page 5

such a case.
Prisoners intending to challenge a
publication rejection should not even attempt it without first fully researching this
area of the law. The new PPD certainly
cannot withstand constitutional scrutiny.
All identified errors, rule violations, and
legal issues, should be raised in the
administrative appeal to preserve them for
judicial review. For a further understanding of this subject one should read the
sections in the Self-Help Litigation Manual and the two volume set Rights ofPrisoners 2nd Ed., concerning publication rejections. An informative law review
article is Thornburgh v. Abbott: Slamming the Prison Gates on Constitutional
Rights, 17 Pepperdine Univ. L.R. 10111043, by Megan McDonald.
One should also read all the available
case law on this subject. A starting point in
finding such cases could be the case notes
listed in the Federal Digest 4th Ed., PRISONS, Key 4(8). The more one reads and
becomes familiar with this area the clearer
it will become. You will likely have to
reread the cases and material several
times. Remember the law has evolved
since Procunier v. Martinez was decided.
There have been some negative articles written about Thornburgh, but with
consideration that specific due process
protections do exist when publications are
rejected, and recognizing the limitations
that Thornburgh did establish on prison
officials, there is still plenty to work with
to challenge the FDOC's new admissible
reading material rules and "policies."
The remaining question is which forum
-would be best-state or federal. To help
resolve that question look at a dated,
but still relevant, article entitled Prisoners and Due Process Litigation: An Invitation to the State Courts, in Prisoners and
The Law, Vol. 1,5-3 through 5-17. Where
rules are being violated, state statutes
violated, a PPD that exceeds fonnal rules
not fonnally adopted according to law,
etc, then serious consideration should
perhaps be given to seeking state court
relief.
End Note: On August 6, 1998, after the
above article had been written, the FDOC
revised PPD 7.01.01 VII. A. I.. The author had already assisted numerous prisoners in tiling rejection appeals that included
a challenge to mailroom supervisors sign-

i F.P.L.P. VOLUME 4, ISSUE 5

ing rejection notices. The FDOC denied
the appeals, but then hurriedly revised the
PPD to address the due process error. The
PPD now states at this section:

sources, and likely will be added to the
Justice Department's appropriation bill.
This would stream-line S2266 as the final
appropriation's bill must be passed before
the end of September.
If the publication has been rejected at
The bill would exempt "any Federal,
another location, the mailroom supervi- State or local facility that incarcerates or
sor shall prepare a rejection notice for detains juveniles or adults accused of,
each inmate receiving same. using the convicted of, sentenced for, or adjudiinformation provided in the. "REVIEW" cated delinquent for, violations of criminal
eform posted on the Admissible Reading law." This is the same definition found in
Material Bulletin Board, andforward it the Prison Litigation Reform Act of 1996.
to the superinJendent or designee for Not only will this bin exempt juvenile and
signature.
adult facilities from the ADA and Rehabili[The second paragraph is totally deleted in tation Act, but may also be considered to
the revision.]
exempt psychiatric hospitals that incarcerate criminally committed prisoners.
The mailroom supervisor cim no
Every prisoner, family member/friend,
longer sign the rejection notice, but that prisoner rights advocates, disability rights
does not solve the problem where they had advocates, should contact their U.S. rep~ signed rejection notices between resentatives to oppose the passage of this
5/13/98 and 8116198, as in the above arti- bill. Time is of the essence. Disabled Priscle. However, the revision only creates oners: have your family members and
another problem for the FDOC. Where the friends write letters or call Florida's U.S.
superintendent at your particular institu- senators and representatives immediately.
tion signs a rejection notice, that was The U.S. Supreme Court has ruled in your
prepared by a mailroom supervisor based favor, now efforts must be taken to prevent
on a rejection at another institution by the. the U.S. Congress from legislating that the
other institution's superintendent, without ADA will not protect disabled detainees
your institution's superintendent having and prisoners.
even seen the publication at issue, the Florida's U.S. Senators can be contacted as
rejection is still not in compliance with
below:
Thornburgh. How is YQ!![ superintendent Senators Bob Graham or Connie Mack
suppose to sign to reject a publication
The Senate
that he personally has not reviewed nor
The Capitol
personally detennined to be a threat to
Washington. DC 20510
the security of hislher particular instituPH# 202-224-3121.
tion at that particular time? This revision
still does not comply with the law. - BOB
BRIEFS
POSEY •

.

ADA UPDATE
In the last issue of FPLP was reported
the June decision of the U.S. Supreme
Court that held that the Americans with
Disabilities Act (ADA) does apply to prisoners. See: "U.S. SUPREME COURT
HOLDS ADA APPLIES TO PRISONS,"
last issue. In direct response to that finding, U.S Senator Strom Thurmond introduced a bill in the U.S. Senate on July 7,
1998, to specifically exempt state and 10cal prisons from both the ADA and the
Rehabilitation Act.
The bill, S2266, called the State and
Local Prison Relief Act, was referred to
the Committee on Labor and Human Re-

Religious Freedom - Florida voters
will vote this November on whether to
include a provision in the Florida Constitution concerning a Religious Freedom
Restoration Act. This past legislative session a statute was adopted creatine such a
"law in Florida, but a constitutional amendment would be even stronger and could not
be changed as readily as a statute can be.
Ken Conner, a member of the Florida
Constitutional Revision Commission and a
member of Justice Fellowship's FL Task
Force was key in defeating an effort by
state attorney general Bob Butterworth to
exempt prisoners from the constitution
amendment proposal. The proposal will be
submitted to voters without exceptions.

Page 6

The provision will make it mandatory to the death penalty. So we must educate
that the state show a "compelling them. then activate the people of this nagovernmental interest" before infringing tion. We must lead by example." - Sr.
on any person's religious freedoms and Helen Prejean CSJ
that any "compelling interest" be tailored
to the "least intrusive means."
-Juvenile Curfews - A new study by
the Justice Policy Institute examining the
Capital Punishment - In April the U.N. impact of juvenile curfews in the most
called for a world-wide moratorium on populous California counties and cities
capital punishment. In a report prepared found that curfews did not lower the juveby Bacre Waly Ndiaye, a lawyer and nile crime rate. The study found that in
death penalty expert from Senegal, it was four of the largest CA counties there was
found that the U.S. administers capital racial bias in curfew enforcement, and that
punishment outside international stan- while curfews did not reduce crimes comdards, and in instances in violation of mitted by black and Latino youth, curfews
international laws. The report found that were associated with a rise in misdethe death penalty is tainted in the U.S. by meanors by white and Asian youth. The
racism, economic discrimination, and an study was funded by the CA Wellness
excessive deference to victims rights. The Foundation and wilt be published in the
report noted that the U.S. is only one of Sept. issue of Western Criminology Refive countries world-wide (U.S., Pakistan, view magazine.
Saudi Arabia, Iran, and Yemen) that per- [Source: The Nation]
mits the execution of offenders who committed their crime under the age of 18.
Female Prisoners - In the November
This is a violation of the Interna- 1997 Annual Report of the Florida Cortional Covenant on Civil Political Rights, rections Commission it was noted that
which the U.S. signed.
female prisoners in FL are more likely
than male prisoners to be placed in a facilCapital Punishment - Sr. Helen Pre- ity hundreds of miles from their county of
jean CSJ, author of Dead Man Walking commitment. The Commission found that
and a leading activist in the Death Penalty this makes it extremely difficult for feAbolitionist cause, has been nominated male prisoners to maintain relationships
for a Nobel Peace Prize. The prizes wilt with children and other relatives. The
be awarded in October and if she wins it Commission recommended that the
may contribute to the pressure in the U.S. FDOC implement a parenting program at
to abolish the death penalty. Letters in major female institutions and design a pisupport of Sr. Prejean can be mailed to: lot work release program that incorporates
Francis Sejerstad, Chairperson, The Nor- parenting and reunification with children
wegian Nobel Committee, Dammen 19, for female offenders. The Commission
N02SS Oslo Norway. Airmail to Norway also recommended that the FDOC convert
is 60 centsl~ ounce and $lIounce. let- Jefferson CI into a male facility and conters should be short, stressing why the vert a comparable south Florida male indeath penalty should be abolished in the stitution into a female institution so that
U.S., and how granting a prize to Sr. female prisoners can be placed closer to
Prejean would pressure abolition of the home. The Commission should be
contacted for more information on
death penalty in the U.S.
"1/ we are serious about stopping the these recommendations and their current
violence in this country. then we simply status. Female prisoners' families and
must stop our government from giving us friends should contact the Commission
and our youth the examples that violence to express support for these recommenand vengeance are legitimate. We must dations: Florida Corrections Commisdemonstrate that killing is wrong no mat- sion, 2601 Blair Stone Road, Tallaha5FL
32399;
Web
PSge:
ter who does it, and that there are plenty see
of citizens willing to stand up and say www.dos.state.tl.us/fgils/agencies/fcc;
'Don't kill in MY name... We can do beller EMail: fcorcom@mail.dc.state.f1.us .
than that. ' Only when people stand up to
be heard and counted will our politicians
feel secure enough to vote for alternatives

F.P.L.P. VOLUME 4, ISSUE 5

Corrections Abuse - During July federal agents arrested three current and for-

mer correctional officers charged with
aiding and abetting the assault of prisoner
. Toby Hawthorne. Hawthorne was one of
the Missouri prisoners being held in a
Brazoria, Texas, private prison and whose
beating was videotaped in 1996 and later .
released to the national news networks.•

ARE FDOC EMPLOYEES SUPPLEMENTING INCOME FROM
PRISONERS' FUNDS?
During April 1998 the U.S. Postal
Service initiated an investigation of possible
theft of prisoners' funds from mail entering
the South Florida Reception Center (SFRC)
located near Miami. The investigation was
started after the families of more than 30
prisoners incarcerated at the prison contacted
the Postal Service to report that money orders
they had sent to their loved ones had not
reached them. Reportedly, money orders had
been turning up missing from approximately
December of last year, and amounted to severalthousand dollars.
Prisoners in Florida cannot possess cash.
Any money they receive must be sent to them
from someone on the outside through the mail
and in the form of a money order. All incoming mail is opened by prison mailroom personnel who are suppose to remove any money
orders and credit them to the prisoners' account.
SFRC superintendent Marta Villacorta responded to reporters that she was looking into
the missing money, but it was too early to
blame prison mailroom personnel. A
spokesman for the union that represents many
state prison guards in Florida, the Police
Benevolent Association, stated that it- was
hard to believe that prison guards would steal
prisoners' money, that such had never been
heard of by the spokesman before.
Theft of prisoners' money orders and
postal stamps is not a rare event in Florida's
prisons. Almost every prison in Florida has
experienced one or more incidents where
prison mailroom persoMeJ, who often are not correctional officers and are only part-time
employees being paid minimum wage, have
been caught. stealing money orders. stamps
and even prisoners' letters and cards. Usually
these occurrences do not reach the media and
are contained at the institution unreported to
the police, with the guilty party often simply
transferred to another prison to work, or laid
ofT for a while until things cool down.
This situation at SFRC did make the front
page ofthe local section ofa Miami newspaper
that was brought to FPLP's attention. If any
FPLP readers have any further information on
this investigation and its outcome, please let

Page 7

fPLPknow.
[Source: Miami Herald, 4/9/98]

NEW PROPERTYLISTI
DEFUaTIONSBECOMES
EFFECTIVE

SMOKING GUN
The following memlmllldum (DOC Infonnatiem Memonndum No. 22·79) was diseovered in the rccenttobacc:o litigation
concerning FL prisoners. Sec: FPLP Volume 4. Issue 4. "SERIOUS MEDICAL CONDmON·N1COTINE ADDICTION:
Prisoners who wen: in prison m"jUVCllile facilitics. who received the "free"lobacc:o that the moe pushed fm" many years and
who llRl now sufl'ering tobacCo related diseases. may have Vet)' good claims·against the moe in view of evidence like Ihe
following:

August /7. /978

In, Volume 4, Issue 3. of FPLP, page 3, MEMORANDUM
it was reported that the FDOC had proposed TO: Regiona/ Directors
amendments to the list of property that FL
Superintendents ofMajor Institutions
Superintendents ofCommunity Facilities
prisoners may possess. That new list became
effective on August 3, 1998, and should
now be contained in all copies of Chapter FROM: Louie L. Wainwright
33.

The amendment makes significant
changes to the definitions of what property
is authorized and specificalIy lists a few
exemptions to formerly acquired property
that is no longer authorized but that may be
kept until 1he specified items are no longer
serviceable. The amendments are found in
Rule 33-3.0025, APPENDIX ONEPROPERTY LIST.
It is interesting to note that in the
expanded text that was added to explain this
new list is stated: "Inmates in possession of
previously approved property which meets
the description of property on the list shall
be allowed to retain the property." This is
wi1hout consideration of the designations
"canteen" or "state issue." The definition
text of the amendment clarifies that those
definitions do not mean where property
must have come from, only where it may
now be obtained from. If you have formerly
approved property that meets the basic
description of approved property on the list
the rule now states that you may keep it. It is
suspected that many FDOC staff still will
not be able to correctly interpret this new
nile, so you should familiarize yourselfwith
it so 1hat if property is taken you can effectively challehge the confiscation.
The folIowing formerly obtained
items are specifically approved for possession as exemptions: Clothing items of a
different color than specified on the property list; Locks other than V68 series; Plastic bowls, tumblers, cups and lids; Pantyhose; and Nail clippers larger than 3-112"
And, wedding rings no longer have to be
just plain bands. The property case and injunction is still ongoing and the injunction
is still in effect. We have no new' news on
that case at this time, but wilI cover same
when somethiJig new is received.•

NICOTINE CESSATION INFO
(Continued on page /2)

F.P,L.P, VOLUME 4, ISSUE 5

RE: Discontinuance ofprolliding tobacco products to inmates
Free cigarettes or other tobacco products wiJI not be QllQilable to State inmates after September 30, /978.
~lthough we havefiunished inmates wilhfree cigarettesfor manyyears, we are discontinuing this practice
when the present 60.d0y supply on hand is exhausted.
The Department of Corrections has been producing rolled. pockaged cigarettes for inmate
consumption for oller six years. Prior to providing rolled cigarettes, the Deportment prollided,
Itree of charge, smoking tobacco in pouches which the inmates utilized in rolling their own
cigarettes. It was the posture of the Deportment that this free issue ofcigarettes was a part ofthe
health and cOm/ort item issue that the Departmentprollided to the inmate by lIirtue of his
incarcer(Jtion.
During the past two years the Department has attempted to objectillely address the feasibility of
continuing the prollision bffree cigarettes to incarcerated i"mates. This decision to eliminate free
cigarelles is based on a thorough reassessment of the health hazards of smoking and the action
of the Legislature in elimination of $500,000 from the Departmental budget used to purchase
wholesale tobacco.
As a result of the preponderance of ellidence currently available which indicotes cigarette
smoking is hazardous to people's health. this has caused the Deportment to eliminate this practice of
prollidingfree tobacco in order tofuljill its responsibilities to protect the health ofthe inmates while
incarcerated. Prominent among this ellidence is' the following: [Omitted list of general Surgeon
Generalfindings, etc.]
The Deportment ofCorrections has also determined that with the cessation ofthe prollision offree
cigarettes to inmates that anti-smoking clinics will be provided to inmptes within the facilities ofthe
Deportment. Arrangements are being made with the American Cancer Society to train Department
staff in presenting anti-smoking clinics and these clinics will be made allailable to all inmates
inllOlved in the education programs throughout the Department and will be made available on a
1I~~wrybasiswothummate~
I request the each ofyou encourage and support inmates to discontinue this life-shortening habit of
cigarette smoking and in the successful operation ofthe anti-smoking clinics.

If inmates should chose to continue smoking. they halle the option of buying commercial brond
cigarettes from the inmate canteen. Howeller, all inmates do need to be made aware of how
smoking may shorten their lilies and the detrimental diseases they may acquire by continuing this
habit.
I have designated T.P. Jones, Assistant Secretary of programs, to establish and monitor the
anti-smoking clinics. and I will appreciate yourfull support olthis program.
In order that the entire Deportment might be aware of this decision, I would request that you
disseminate this ilfformation to all Departmental staffand inmates.
[Signed: L. L. Wainwright, Secretary}
As those of)'Oll who wen: in during and after the above memo was issued know, there were never any "anti.srncJcing

clinics" established. Free cigarettcs c:cmtinl=lto be dislributed 10 prisoners, III some facilities, into 1980. LiUle. if any.
infonnatiem was ever dislributed to Ilrisoners concerning the dangers of tobacco. Many Ilrisonen. who were addicted 10
lobacc:o for the lint time upon entering the DOC where the free lobacco was allllO$l forced em prisoners, have died from
lobacco-related cIiseascs m" are suffering from such now. •

Page 8

NOTABLE CA.$ES
by Sherri Johnson and Brian Morris
-Administrative ConfinementDue Process Not Required
In the first case following Sandin V,
Q!.nng, 115 S.Ct. 2293 (1995) that the

Eleventh Circuit federal appeals court has
addressed concerning due process in connection with administrative confinement in
Florida prisons the decision is not favorable
and may have serious consequences for
Florida prisoners.
In 1993 prisoner Charles Rodgers filed
a section 1983 action in the Southern District federal court of Florida, alleging that
following a dispute with an FDOC corrections officer at South Florida Reception
Center over a dining table the officer wrote
a false DR against Rodgers and had him
placed in administrative confinement. The
DR was subsequently dismissed against
Rodgers but he remained in administrative
confinement for two more months awaiting
disposition of outside criminal charges for
the altercation (he evidently put his hands
on the officer during the dispute). Rodgers
continued to allege that he was not provided
due process before or after being placed in
administrative confinement in violation of
his constitutional rights. Rodgers also alleged that the superintendent and FDOC
secretary violated his due process rights because they did not act to release him from
the confinement when given notice of same
through the grievance procedure.
The district court dismissed the due process claim against the correctional officer
for failure to state a claim pursuant to 28
U.S.C. section 1915. The district court
granted summary judgment for the superintendent and FDOC secretary after concluding that Rodgers failed to show a deprivation of a liberty interest as required by
Sandin v. Conner (following Sandin "Iibeny
interests" are generally limited to (I) actions
that unexpectedly alter term of imprisonment. and (2) actions that impose an
atypical and significant hardship in relation
10 the ordinary incidents of prison life.)
Rodgers appealed to the Eleventh Circuit which affirmed the lower court's actions. Rogers had claimed on appeal that
since his case facts occurred before Sandin
was decided in 1995 that the law at the time
of the incident conlrols. The appeal court
disagreed and cited several cases holding
that decisions of the Supreme Court gener-

F.P.L.P. VOLUME 4, ISSUE 5

ally must be given full retroactive effect on
cases still pending when the decision is rendered. Therefore the district court's application of Sandin standards to Rodger's case
was appropriate according to the appeal court.
This case is significant in that it effectively overturns prior established case law
that had controlled in Florida requiring that
full due process protections be provided
before and after administrative confinement
is imposed. Parker v. Cook. 642 F.2d 865
(5th Cir. 1981), and Adams v. Wainwright.
512 F.Supp. 948 (N.D. Fla. 1981).
However. the results of ~ is not
surprising following Sandin v. Conner. What
this means is that following Sandin administrative confinement in Florida prisons can
generally be imposed without any due process
protections (e.g. hearing. opportunity to be
heard. periodic review of status) unless there
exists a law or rule creating a "libeny interest"
in remaining free of administrative confinement mll1 due process protections before
and after imposition mll1 that the prisoner's
length of time in prison is affected by the
confinement and/or that the confinement is
an "atypical and significant hardship" in
relation to what confinement a prisoner can
ordinarily expect while in prison.
Following this decision in Rodger's case it
is expected that the FDOC will dismantle
existing rule mandated requirements that prisoners be allowed to speak with someone and
give a statement on his behalf before administrative confinement. and possibly repeal existing rules requiring periodic review of administrative confinement status. This would mean
that prisoners could then be placed in such
confinement without any reason being given
and be kept there for as long as prison officials
wish without any review of the status until
they decide to review it. See: Rodgers v.
Singletary. 142 F.3d 1252 (11th Cir. 1998).

Importance of Exhausting
Federal Claims in State Court
A recent case out of the Eleventh Circuit
Court of Appeals illustrates the importance of
raising and fully exhausting federal issues at
the state court level before attempting to proceed to the federal courts with a petition for
habeas corpus on a criminal conviction. On
February 18, 1998. the 11th Circuit issued a
ruling that is useful for clarifying to Florida
prisoners correct procedural remedies in pur-

.

suing postconviction relief from a state criminal
conviction.
Harold Snowden, a Florida state prisoner.
was convicted in 1986 ofseveral counts ofchild
abuse during ajury trial. Snowden filed a direct
appeal of his conviction to the Third District
Court of Appeals, which affirmed the conviction. See: Snowden v, State. 537 So.2d 1383
(Fla. 3rd DCA 1989)" The Fla. S. Ct. denied
discretionary review. See: Snowden V, State.
547 So.2d 1210 (Fla. 1989). Snowden then
correctly filed a motion for postconviction relief
per Rule 3.850. F.R.Crim,P.• which was denied
by the trial court without an evidentiary hearing.
Snowden appealed that denial and the DCA
affirmed the denial. ~ Snowden v. State, 589
So.2d 911 (Fla. 3rd DCA 1991).
Snowden. proceeding correctly, next filed
a petition for federal habeas corpus relief in the
federal district court pursuant to Section 2254.
In June of 1994 a magistrate judge issued a
report and recommendation that relief should be
denied and the district court judge adopted that
recommendation and denied lhe habeas corpus
petition.
Snowden then, again correctly, and in the
correct order, filed an appeal from the denial of
his federal habeas corpus petition to the II th
Circuit Court of Appeals. That court has now
reversed the district court's denial of the habeas .
corpus while issuing an opinion that may be
very useful to other nm s prisoners challenging
a criminal conviction.
It is important to note the order in which
Snowden prosecuted his claims, He followed an
orderly progression; first taking a direct
appeal (if the conviction was obtained by plea
negotiations. then you would probably not have
a right to a direct appeal and would skip that
step). Upon denial of that he proceeded to a
Rule 3.850 postconvlction motion back in the
trial court. When that was denied he appealed
it and lost He then, having exhausted all
available state court remedies, in the correct
order and raising every issue the first time
around, proceed.;d to the federal district court.
When that court denied him relief he appealed
to the 11th Circuit, which has now granted him
relief, finding that several of his issues demonstrated a violation ofdue process.
The II th Circuit also, in a clear and understandable manner, pointed out the importailce of
raising and exhausting any ~ claims that"
you might have at every step in the state courts.
The Court noted.thai, "In general. a federal court
may not grant habeas corpus relief to a state
prisoner who has not exhausted his available

Page 9

state temedies. (citing 28 U.S.C. Sec.
2254(bXI)(A»."
The Court. relying on. established U.S. S.
Ct. case law, also found that, "Exhaustion of
state remedies requires that the state
prisoner 'fairly presen[t] federal claims to the
state courts in order to give the State the
opportunity to pass upon the correct alleged
violations of it's prisoners' federal rights (cites
omined).''' And. "Thus. to exhaust state remedies fully the petitioner must make the state
court aware that the claims asserted present
federal constitutional issues." Failure to raise
all possible federal constitutional issues at every step in the state court will bar those claims
from being raised in the federal court.
Some of Snowden's claims had not been
properly raised in the state court and were thus
barred, some of his claims that had been
exhausted lacked merit according to the II th
Circuit. But several of his claims had been
fully exhausted in the state court, presented as
federal constitutional violations at every
stage, and thus were considered and found
to be due process violations by the II th
Circuit affording Snowden his long sought
relief. See: Snowden v. Singletary, 135 F.3d
732 (11th Cir. 1998).

Prisoners Frank Bass, Leonard Bean.
Enrique Diu. and .BiII Van Poyck challenged prison officials' action in using a contraband rule to confiscate legal materials that
had been given from one prisoner to another in
order to assist each. other in court cases. The
U.S. District Court for the Middle District of
Florida. 'Jacksonville. granted a summary
judgement in favor of FDOC prison officials
finding that the plaintiff prisoners had not
presented evidence that they, personally. had
suffered a denial of access to the courts pursuant to Lewis v. Casey. 116 S.Ct. 2174
(1996). The plaintiffs appealed to the II th
Circuit Court of Appeals, and that court affirmed the lower court's summary judgement
with a rather extensive opinion.
The prisoners, who are on 24 hour lockdown at Florida State Prison (FSP), filed a
two-count 42 U.S.C. 5. 1983 action alleging

that Rule 33-3.006(1)(b) is unconstitutional
where prison officials at that institution used
that rule to allegedly confiscate and destroy
plaintiffs legal documents which other prisoners possessed, and other prisoners' legal documents which plaintiffs possessed. Pursuant to
that rule, legal documents found in the possession of another
inmate
at FSP are
"contraband" if they are transferred from one
prisoner to another without authorization.
The rule being challenged in this action
provides that "[alny item or article not
originally contraband shall be deemed contra·
band if it is passed from one inmate to another
without authorization."
The district court had found that the rule
"wasValid under the four-prong test of Turner
v. Safley. 482 U.S. 78 (1987), and specifically that the plaintiffs had failed to show that
prison officials hindered their efforts to present
a legal claim where the plaintiff failed to present any evidence that such an injury had been
sustained by them personally.
The plaintiffs attempted to argue on appeal
that the lower court' should have 'applied the
test established in Johnson v. Averv, 393 U.S.
483 (1969). The appeal court considered both
Johnson v. Avery and Bounds v. Smith, 430
U.S. 817 (1977). The plaintiffs had argued that
this was not a Bounds case, but the appeal
court disagreed. Citing from Lewis v. Casey,
the appeal court noted that Bounds and Johnson "focued on the same entitlement of access
to the courts." and found that neither of
those cases created a free-standing constitutional right independent of the right of access
to the courts, and those case did not create
separate, independent, standards to be applied
in assessing access to court cases. Thereforc,
the plaintiffs' case must be examined under the
standards as established in Lewis v. Casey.
The appeal court noted that under Lewis,
prisoners' claims of denial of access must fit
within the narrow limits of being related to an
underlying habeas corpus petition, a challenge
to a criminal conviction, or a civil rights
action concerning conditions of confinement.
Lewis established that those are the only
areas of litigation that prison officials have
a constitutional dut)' to accommodate prisoners
with in accessing the courts. The appeal court
noted that if the plaintiffs' claims in this case
involved claims of denial of access concerning
those enumerated reasons. that the plaintiffhad
provided no evidence that they have had one or
more such actions denied or dismissed because
of prison officials alleged actions under the
stated rule. The appeal court emphasized several times that after Lewis prisoners can only
bring denial of access claims if the action (or
inaction) of prison officials actually resulted
in an underlying case concerning a habeas
petition, challenge to a criminal conviction,
or civil action on conditions of confinement.

F.P.L.P. VOLUME 4, ISSUE 5

~

[Follow-up: On March 26,1998. Harold Grant
Snowden, an excop. was set free on a $50,000
bond by the Southern District Court of
Florida. pending a retrial. His original conviction was overturned based on the above decision by the II th Circuit. Source: The Orlando
Sentinel, 3/27/98, A-I-sj]

Using Rule 33-3.006(l)(b) to
Confiscate Legal Material in
Other Prisoners' Possession
Not Unconstitutional

o

being dismissed or denied.
The appeal court also pointed out
several times that Lewis requires "personal
injury," prisoners can not claim that they were
denied access to the courts because they were
prevented from assisting other prisoners. citing
AdamS v. James, 784 F.2d 1077 (\ Ith Cir.
1986) ("prisoner has no standing to litigate
another prisoner's claim of denial of access to
the courts."). The appeal court implied that
this is what the instant plaintiffs were doing,
absent any evidence that they personally had
one of those type legal actions denied or dismissed because prison officials had confiscated legal materials in another prisoner's possession.
In closing, the appeal court again addressed whether an "independent" right exists
for prisoners to give or receive legal assistance
to each other. The court found that no such
right exists, citing Johnson v. Rodriguez. 110
F.3d 299, 31 I n.15 (5th Cir), cert. denied 118
S.Ct. 559 (1997). The appeal court·noted that
it joined several other circuit courts of appeals
in this position (cites omitted here). ~ om.
Bean. Diaz. and Van Poyck v. Singletarv,
_
F.3d _ _' II FLW Fed. CI487
(6/19/98).

PLRA's "Three-Strikes" Provision Upheld by 11th Circuit
In an extensive opinion, the federal 11th
Circuit Court ofAppeals has upheld as constitutional the "three-strikes" in forma pauperis
(IFP) provision of- 28 U.S.C.A. Sec. 1915(g),
section 804(d)7fthe Prison Litigation Reform
Act of 1995 (PLRA).
On May 9, 1997, FL prisoner Vincent
Rivera filed a 42 U.S.C. Sec. 1983 complaint
in the federal district court for. Northern
Florida. Rivera alleged that a prison doctor
had disregarded his medical needs and sexually fondled him during an examination.
Rivera sought monetary damages, correction
of his record, and restoration of gaintime that
was taken through disciplinary action (it is
obvious that Rivera had absolutely no clue as
to the proper remedy. even if his claims were
true).
Pertinently. Rivera sought to proceed in
fum!J ~, and after the case was transferred to the Middle District Court within
which Rivera was incarcerated, the district
court dismissed Rivera's case because he had
filed three previous lawsuits that had resulted
in dismissals because they had been frivolous.
malicious or failed to state a clai~ upon which
relief could be granted. The district court determined that 28 U.S.C. Sec 191 5(g) rendered
Rivera ineligible to proceed IFP in the instant
action as the three prior dismissals all counted
as "strikes" under the PLRA and Rivera 'had
not shown he was in imminent danger of

Page 10

physical injury." The district court found
that Rivera could only proceed if he prepaid
the entire filing fee-up front.
Rivera, not knowing when to leave well
enough alone, filed an appeal and sought to
proceed on appeal IFP. The district court
found that the appeal was not in good faith
and ordered Rivera to prepay the appeal
filing fee before he could proceed. However, the clerk of the court obtained
Rivera's written consent to pay a partial
payment and place a hold on his account to,
satisfy the rest of the appellate filing fee
(exactly what Rivera had been seeking to
do). Rivera failed to realize something was
up when the clerk appeared" to be going
around the court so his appeal could be
heard. The court had denied IFP status and
the clerk, unofficially, granted same.
The 11 th Circuit took this made-to-order
opportunity to address PLRA issues of first
impression for that court. Rivera raised constitutional challenges to Sec. 1915(g) on
four grounds:
(1) First Amendment
access tb courts; (separation of powers; (3)
Fifth Amendment due process; and (4)
Fourteenth Amendment equal protection.
Alternatively, Rivera alleged that the district
court erred by using cases dismissed before
the PLRA became effective in a retroactive
manner to count towards the "three strikes"
against him, and that two of the "three
strike" cases could not be counted as dismissals due to being frivolous, malicious or
failing to state a claim.
Almost routinely, the 11th Circuit
disposed of Rivera's First Amendment challenge noting that proceeding IFP in a civil
case that does not involve "fundamental
rights" is a privilege rather than a right.
The court also found that Sec.
1915(g) does not violate separation of powers, based on, the same cases that Rivera
sought to argue did show such violation.
Rivera's claims of denial of due process
under the Fifth Amendment the court
equated to a restatement of his First Amendment denial of access to the court claim, as
Rivera alleged due process -was denied in a
application of res judicata. The court held
that Sec. 1915(g) does not violate the
Fifth Amendment.
The court noted that a district court in
the 8th Circuit had found that Sec. 1915(g)
was unconstitutional in violation of equal
protection rights of prisoners, but that had
been overturned on appeal to the 8th Circuit
appeals court. The court went further to
agree with the 5th and 6th Circuits that Sec.
1915(g) does not violate the Fourteenth
Amendment right to equal protection, as

F.P.L.P. VOLUME 4, ISSUE 5

There Is No Constitutional Right
of an Accused to Proceed Both
Pro Se And With Counsel
Although indigent criminal defendants
are entitled to the appointment of counsel
and, under certain circumstances, have a constitutional right to waive their right to representation by counsel, "there is no constitutional right of an accused to representation
both by counsel and by himself." Whitfield v.

Web rlge Address:
bttp:Jlmemben.lol.com/fplp/fplpJatall
E-mail Address:fplp@aol.com
Telephone: (4a7) ~

Page 11

(Continued/rom page 8)

FPLP has received some requests for case
information concerning the nicotine cessation article that ran last issue. Thomas
Waugh's case, which forced the FDOC to
provide him with Zyban and nicotine patches
to stop smo~ing, was styled: Waugh V. Harry
K. Singletary. et al.. Case No. 95-605-Civ-J20A, and was filed in the federal District
Court, Middle District, Jacksonville Division.
The State of Florida's case against the
major tobacco companies, in which' the
tobacco companies filed a counterclaim alleging that the FDOC, a state agency, had also
manufactured and distributed cigarettes for
decades to "risoners, and in which a significant amount of discovery materials concerning that claim was filed, was styled: State. et
a!. v. American Tobacco Company. et al..
Case No. 95-1466AH (Civil), and was filed
in state court, Fifteenth Judicial Circuit
Court, In and For Palm Beach County,
Florida.
FPLP has most of the key documents that
were tiled or used in litigating the above two
cases. If enough interest is received we will
consider making copies of those materials
available for order. Let us know.
Tom Waugh was provided Zyban and
nicotine patches following his settlement, and
has now been smoke·free for several weeks.
He informs FPLP that the Zyban was more
beneficial in helping him to stop smoking
than the nicotine patches, but recommends
them both as necessary cessation aides to
those heavily addicted to nicotine as he was.
All Florida prisons are suppose to have
adopted a written Institutional Operating
Procedure (I.O.P.) outlining the steps that
prisoners can take to participate in nicotine
cessation programs"'" and possibly receive
nicotine patches. If interested check your law
library for the I.O.P. or contact your doctor or
classification officer for more info. 1

1998 LEGISLATIVE
mGHLIGHTS
The 1998 FL legislative session produced few
changes to state law that will affect prisoners,
unlike the past few years. The following
notes selected highlights from this most recent
session:
Criminal Procedure, D~ath Sentence,
Method of Execution: Session Law 98-3,
C.S.H.B.3033, created Sec. 922.105, F.S.,
and amended Secs. 775.082 and 790.161,
F.S., to provide that electrocution is the
official method of execution of deathsentenced prisoners and that lethal injection
will only be utilized if electrocution is ever

F.P.L.P. VOLUME 4, ISSUE 5

held to be unconstitutional by the FL or U.S.
Supreme Courts. Became effective 3/26/98.
Sexual Predators, Civil Commitment: Session Law 98-64, C.S.H.B. 3327, created several new statutes entitled the "Jimmy Ryce
Involuntary Civil Commitment for Sexually
Violent Predators' Treatment and Care Act."
This Act establishes state laws that allows
for the involuntary civil commitment of
offenders designated as sexual predators. The
Act will affect presently incarcerated and
future sexually violent predator offenders as
defined under the Act. This bill was modeled
after a law that was'adopted in Kansas and
that was upheld as constitutional by the U.S.
Supreme Court last year. Kansas v. Hendricks.
117 S.Ct. 2072 (1997). Essentially, the Act
provides for continued incarceration of those
offenders designated as sexually violent
predators through civil commitment after
their prison sentence has ended andlor civil
commitment incarceration for those not sentenced to prison but who fall' within the
parameters of the Act. Effective January I,
1999.
Sexual Offenders: Session Law 98-81
C.S.S.B. 1992, provides changes to itumer~
ous statutes concerning identification,'notification, registration, DNA typing, and other
related requirements of sexual offenders in
FL. Effective dates: 6/1/98 and 10/1/98. Became law 5/21/98.
FDOClParole Commission Rule Adopt
Authority: Session Law 98·200 Sees.
227-28, C.S.S.B. 1440, provides minor in appearance, but significant, changes to Sees.
944.09(1) and 947.07, F.S. The amendments
add language to these two statutes, that authorized the FDOC and Parole Commission to
adopt rules, to provide that such adoptiolls
shall be pursuant to Secs. 120.54 and
120.536(1), F.S., of the Administrative Procedures Act. To bring Sec. 944.09, F.S., into
compliance with Sec. 120.536(1) (1996),
the FDOC's "general" rulemaking authority
at Sec. 944.09(1)(r) was totally repealed. The
FDOC may no longer adopt .rules unless
there is a specific statute authorizing such
adoption. Became effective 5/24/98; **
FDOC Salaries: The 1998-99 Appropriations
Act provides, beginning September 30, 1998,
an increase in the base rate of pay for
FDOC career service employees, correctional officers and correctional probation
officers as follows: (I) Employees with
salaries of $20,000 or less shall receive an
annualized increase of $1,200; those with
salaries from $20,001 to $36,000 shall receive
an annualized increase oUI,OOO. (2) Employees earning $36,001 or more shall receive an

annualized increase of 2.78 percent; professional health care employees of the department will receive a 3 percent increase in pay.
On January I, 1999, an across-the-board
special pay additive ofSI,900 will be available to increase the base salary ofcorrecllOna'l
officers in Regions I and IJ. Officers in Region m, IV, and V will also receive the
$1,900 special pay additive to increase base
salary, but this will replace the current $1,900
they receive as Competitive Area Differentials. Becomes effective October I, 1998.
·*The Florida Department of Corrections
(FDOC) sought to obtain legislative support tbls
past session to furtber limit, or totally eliminate,
prisoners' ability to participate In Rule Promulgation or Adoption procedures pursuant to sec.
120.81(3), F.s.. Fortunately, the FDOC could not
find a legislator to Introduce sucb a proposalthis year.
Tbe only vestige of FDOC rulemaldng participation still remaining to prisoners Is tbe rlgbt to
submit eommentslevidence to proposed rulemak·
Ing ,notices of the department (per 120.54(3)(c)
and 120.81(3)(b», and file petitions for rule
adoption, amendment, or repeal (per
120.54(7) and 120.81(3)(a». Prisoners still bave
tbe right to appeal an FDOC decision to deny 11
petition flied pursuant to 120.54(7) directly to
the DCA pursuant to 120.81(3)(a), 120.68, F,S.,
and Rule 9.110, F.R.App.P.
Recentiy, the First DCA confused this ability to
appeal under 120.68 by l.uulng a vague opinion
In Tunglite v. FDOC, _ So.2d _ , 23 FLW
D13S2(F1a. 1st DCA 611198). Prisoners may only
appeal under 120.68 when tbey have filed a
120.54(7) petition to .the FDOC and It has been
denied. Tbis Is a very narrow remedy and tbe
procedures must be fully understood and complied witb. The courls are not allowing any
procedural leeway in FDOC rule cballenges.
Altbougb a complaint for dedaratory Judgment
under Chap. 86, F,S., still remains viable for rule
cballenges, but still administrative remedies
must have been exbausted or II 120.54(7), F.S.,
petition must bave been flied and denied to crelite a controversy ripe for declaratory Judgment.
See: Endress Vt FDOC. 612 So.2d 64S (Fla. 1st
DCA 1993).1

FPAN Meeting Update
by Traci Rose
There was a FPAN meeting on Sunday, June
28 in Orlando. Several members from different groups attended: PEN, FLIP, along with
Glen Boucher from Florida Institute of Legal
Services (FILS) Teresa Bums from FPLP and
myself, and the Co-Founder of TIP (The illumination Project). Even though there wasn't a
large turnout for the meeting, we made great
progress. Those of us that were there left with
more knowledge and a better understanding of
what we actually can do to help our forgotten
(Continued on page 14)

Page 12

Dear FPLP
As usual, I waited until the last minute 10 renew my subscription. So, I decided to plan ahead. Enclosed is my donation for two years. I would encolltl18C all

subscribers 10 renew for two years. It will allow FPLP 10 move forward, farther and sooner. And 10 my fellow convicts- Get up off them lunches. Don't be cheap!
You can do without those nabs for a week. And by the way, are you c:heapo's the SllI1\e whiners that keep crying about what the DOC is Illking away from us?
When are you going 10 get offyour bun and start pushing the paper, Remember-Research, Educate, and put into Action! TWJ CCI
DeiuFPLP
Just want 10 renew my subscription early. Have been down since 89, and the FPLP is the best publication I've come across. I have in the past gouen several
inmates 10 apply for FPLP. So please keep up the great job your doing and helping us inmates. I thank you. G.R. WCI
FPLP,
Enclosed you will fmd nineteen 5.32 Stamps lIS payment 10 renew my subscription for your newsleuer. IfI'd had more stamps I'd sure have sent them 10 you. For
I personally really enjoy this newsletter and all the information your staff provides me with: People like you and your staff are the ray ofsunshine for me at least
Having spent more then 30 years in the prison systems of this country I'm all to well aware of the reality of 'Those that have no-one 10 represent or fight for them'
will surely get lost in these systems. That your organization spends time, energy, funds in our behalf is fantastic. Without people like you out there in the liee
world speaking up for those of us inside these barbed wire reservations, well with out a doubt, we inside would be back in the old chain gang daily routine. Which
wouldn't be bad ifthere WIIS a chance ofCll1Tling release from these lost in space sentences. Yet personally I'm sure that sooner or later the tax payers will get tired
of paying for a system that can never work, the way that it currently is being run. Statistics concerning recidivism should show that this system does not..can
not..will not work. No matter how many millions...billions of tax payers dollars they spend on it year after year. Those of us old enough 10 remember the old
system (chain gang) remember the hard work, long hours, and if you wanted 10 be aloud mouth the pain and bruises that went with thaL But, my issue is that
back then you could ClI1Tla parole. SlatS I'm sure will verilY that under that syslC(1l the recidivism rate was right around 25-27%. After all the changing was done
what did the recidivism rate go up too around 70+ %. I might bejust an old convict, but even I can see that teday's systems are mega failures. A very sad joke. at
the taxpayers expense. But do the politicillRS ever let the taxpayer know the true facts and realities? Hell no they wouldn't get eleeted if they did. Yet with more
organizations like yours out there, maybe just maybe the public could becOme informed of the truth and reality. For myself I'm not crying. I did what I did,l got
what I got, so be it But for the young dudes that I sec coming into this system I feel sad. They have no chance at all, this system isn't designed to gip: them a
chance or any help even if they want it To me thill's the biggest shame of all. All of those that vale for these politicillRS that promote or believe in ttIis ~
should be made 10 lOur a place like this. So they can see first hand the lives that are being wasted because oftheir vote. The public gets all bent out ofshape when
someone that just got out of a prison system re-aets in a violent negative way, but why should they? The public allowed these systems to become what they are.
wItere only the strong canlwill survive. The ones thIIl rc-act with violence once they get out, weill can't say this with sureness, yet I'll bet that they were thcones
that were sUbjeeted to the violence in these systems. Its sad to think, let alone say...that they learned it in here...Well I've run my mouth all 10 long. Just want 10
say Keep Up The Good Workll! I for one really do appreciate all that your doing...A1I the time you spend doing it. BAC UCI

Greetings,
I have just read my fU'St copy ofyour newslcuer, received from an inmate in Everglades C I. You are doing a wonderful job for inmates and their 10vcdones.1 too
have had a problem with visiting privileges at ECI. I recently ml1de a trip from Maryland 10 Florida to visit my son, who is an inmate at ECI. He had an ok by his
classification officer and WllS told my name was on the visiting list. When Illrriver at ECI, the gUllfd told me my name was not on the visiting list, and he did show
me the list, which did not have my name on it I was not allowed in to visit. I had visited before in January 1998 and my name was on the list then, Needless to say
I was hysterical to have come all that way and not sec my son. The next time I heard from my son, he said he was IOld there was a mistake and that my name was
on the computer, but not on the list at the gate. The same day a family of four coming from Ecuador was also turned away because of the same reason. What can
a person do? Margaret, Maryland
To whom it may concern,
In reading the May volume 4 issue 3 of FPLP. I noticed that there isn't enough information that benefit the incarcerated women in Florida's instilutions. On the
subject of restoring Pasona\ Property, nail-clippers, tumblers, and wcightlifting gloves are acceptable for Men. As an African-American woman hair-e:are
products, hair accessories, cosmetics are very limited, if not non-cxistent. Support bfllS and pant-girdles are needed but, no longer able to receive these and other
items that once were permiUed thl'Ollgh personal property are still needed. JCI has it's own unofficial Sovereignty Commission due to Nepotism. Inmates here are
repeatedly subjected 10 victimization within the instilution. In this instilution there are many family members employed, from Asst. Superintendent, Ueutenants,
and other subordinates: Sisters, brothers, mother .son, daughter, cousins and in-laws, mostly all working for security. They are supposed 10 work different shifts
but they do not. This is a direct violation of FL.S\. 20.31 S After an accumulation of instances of misconduct the problem of Nepotism still goes unnoticed. It is
aIrnost impossible for inmates 10 exercise their rights through-the grievance process and not be subjected to impartial, improper conduet by other &Jar relative
SlaIT members here at JCI. We are now expected to purchase tampons, raincoats, toothpaste_ and stamps on the canteen. Where does that leave the indigent person
who cannot use their brand of sanitary napkins or tampons, due 10 sensitivity or allergic reactions? Where does it leave indigent inmates withHIV?Aids,
Asthmatics, and other respiratory illnesses? As far as Jel is concerned oppression, victimization,·and a total disregard that persons incarcerated are here for lIS
punishment not to be punished. Will the inOiction continue will someone take a stand? For even though the training of Correctional Officers consist if
"dehumanizing" the inmates. We the incarcerated are still human. GG JCI

[Alliellers received cannot be printed because o/space restrictions. Unsigned lellers IVIII not be printed or lellers that obViously are not Intended/or publication. Please Indicate in lIT letters I u do not want /I rinkel. otherwise FPLP reserves the ri ht to rim olliellers received and to edit lellers or len th.

F.P.L.P. VOLUME 4, ISSUE 5

Page 13

family members in the FDOC.
interesting. but disheartening. film was
aboul prison eduwion in New York.
Also, members" from PEN reported lhat they still
need over 20,000 pelilions signed in order 10 get
the issue regarding abolishing the plIfOle Board
on the ballol Anyone that WIllIts to volunteer
please cOnlllCt Twyla from PEN. She really
needs the help.
M

sfIo",,'Tl

In addition, there was an update, and enlighten·
ing discussion, about the rally FPAN coordi·
nated in Tallahassee during the legislalive ses·
sion Ihis past April. As most of you know,
se\'enr,1 members of FPAN were 11.1 thai rally.
Family members wen: u1king 10 their represen·
wives, and to othas. about the obstacles a
family mUSI go lbrough when they have a loved
OtIC inearccnted in the FDOC. Basically, concerned family members were con\'eying a message 10 the legislature that families of prisoners
are not going 10 be quiel aboUI how they arc
being uwcd. FPAN will again be coordinating
this event in 1999. Listen families. these l'IIllies
are ulremefy important. Thll II /he place. This
is where all our decisions are made for us. We
must be present and bc hcartl cI'ery year. FPLP
will keep everyone updated about the 1999
nlly, bUI we also desperately need family memo
bers to participate. If there was just one family
member fmm half of the inmates in the FDOC
anending these rallies. ....·e'd have O\'er ]0,000
people up al the Capitol. N_ thai'S powerful,
Plc:asc get in\·olved.
The oulcome of lbe legisl:uh'e upd31c was lblt
selected members of FPAN will be targding
appropriale committees about imponant issues
we, as a group, would like to see changed. For
instanec, Ihe main focus right now is presenting.
to the appropriate commiltee(s), the idea that
every family member has the tight to visit a
loved one incan:erated in the Slllte of Florida
Members were encoul'llged to .....rite their repre·
sentath'es regarding this and olher issues they
have concerns about.
We also had a guest speaker, the Public De·
fender from lbe 9· Judicial Cireuit in Orlando.
The Honorable Joseph W. DuRocher. MI.
DuRocher p\'e lbe group an ovCl'View of the
role the Public Defender's office has in the
system. This gentleman is very eating. and is
Cltlremcly active in his commitment 10 speak Ollt
for inmate'S rights. In addition, Mr. DuRocher
announced the great news thai Sister Helen
Prejean, aulbor of ~Dead man Walking." was
nominated this )'w for the Nobel Pcace Prize.
Towards the end of the meeting, Susan Cary
from the Public Defender's office in West Palm
Beach showed up and gave the group an update
on lbe proposed rule that will se\'erely, if it

F.P.L.P. VOLUME 4, ISSUE 5

passes, restrict items allo ....·ed to be sent 10
inmates through the U.S. mail Ms. Cary
reponed th:1I this rule is being challenged,
and that there i.s a hearing scheduled fOI
Tuesday. July 14 in Tallahassee..
Having a loved one in Ihe FDOC has been
extremely difficult, as I'm sure it is fOI
OO)'one in the same situation. Feelings of
despair, powerlessness, hopelessness, and
isolation used to O\'ercome my entire life. I
used to live with the feeling thm no one
understood what it WM like to experience
something so terrible and heanbreaJdng. I'm
not sure when it happencd or how it happened. bUI I found a little bit of hope. Hope
that things could be different if I would juS!
belie...e. Hope thal sitUlltions could change if
I would only do the footwork. As. member
of this group, I lind thaI logether we can
make a difference in the Ih'es of our loved
ones in the FOOC's care. My motivation for
getting in\'olved SWted .... hen I wanted to do
something about the issues I was facing due
10 my lianct being inCllJ'CCtUted. That slill
remains my main motivation; however, sev·
erol other clements have become importllllt
these: past few yellrS. I realized my liane~
and I weren't the only people suffering.
There lll'C many others that nre faced with
lIle same problems. My added motivation is
simple. It's compassion for another human
being. combined wllh se"ere sadness about
""hal is going on behilld the cemenl walls in
our prisons in Florida. Befon: I was exposed
to lbe DOC. I nC"er d.rc:amed a legal entity
could be so blatsntly dishonCSl and cruel. I
JUSI don'II\a\'c it within mysdf to sit b3ck
and let lbis SIlIlc·run'dcpanment destroy
people's lives. Please get involved and
speak OUI for our forgollen loved ones.1

PROPOSED MAIL
RULES UPDATE
In the last issue of FPLP a summary was
given ofrcccnt proposals Ihatthe FDOC has
made 10 amend routine, legal and privilege
mail rules. FPLP. Vol. 4. Iss. 4. -RULE
REVIEW: pgs. 8 and 12.
On Jul) 14th a public hC3ting wu held
following a request for such hearing by
sevenJ interested clli«n parties concerning the proposed mail rule amendments.
FPLP staff had contacted numerous
allomC)'S and individuals seeking support
for objections to the proposed rules along
with the staff submitting objections themse!\·es. The staff thanks all those who n::sponded to this request for support in op·
posing these proposed rules that were extremely restrictive. Numerous prisoners nlso
submimd wrillen objections in response: to

FPLf"s CaU for Action, thank )·ou.
The opposition was effecti\·e. Following
lbi:: public hearing the FDOC dec;:ided thaI
changes wen: needed to address the concerns
and objcelions thai had bttn raised. Most
imponanily. the proposed amendment to pm.
hibit prisoners from receiving poSUIge StAmps.
blank greeting cards, blank pllper and en·
velopes in routine m:lil hIlS been deleted in a
Notice of Change published August 21. 1998
The FDOC is now proposing that prisoners
will still be able to rcceh'e up to the CQuivalcnt of 20 (I OL) postage stamps in rouline
mail. This will positively affcct all prisoners
and their families and friends in mainlaining
correspondence. Those responsible in Ihe
FDOC arc thanked for reconsidering this \cty
imponanl issue.
Less changes ""'ere: made to the proposed
amendmenlS to the legal and privilege mail
rules. Pertinently, the FDOC refused 10 delete
Ihe proposed provision of ]]-3.00S(9)(b) Ihat
would rcquin: indigent prisoners to payor be
responsible for paying ALL legal mail poSlll&e
costs. FPLP Slaff had not only conUlCled Ihe
FooC Objecting to that proposed provision.
that docs not appear to comply with cslllblish
law or stale stututcs, but they had also filed
objections with the Joint Administrntive Procedures Committee which oversees agency
rulemaking. The JAPC has indicated that they
arc ~carcfully evaluating- this proposal for a
possible objection by the JAPe.
If JAPC fails to act and the FDOC
allows the adoption of proposed 3).
HIOS(9)(b), litigation is going to be necessary. Allomeys who m:Iy be interested in representing such a ClISC arc requested to contact
FPLP. Iflbe rule goes into effect placing holds
on indigent prisoners' accounts for the COS! of
legal mail postage. prisoners should imme·
diately Clthaust their administrative remedies
on this issue. See: Bounds y, Smitb. 97 S.CI.
1491, 1496 (1977), and progeny; llIId Fla. Stal.
944.09( I )(0) (1996).

I

HUMAN RIGHTS WATCH
Human Rights Watch. the largesl international
human righlS organization based in lbe United
SllI.Ics. is conducting prelimin;vy re:search into
the problem of prison rape: ""hen it occurs,
""hy it occurs. ho..... it occurs and how to SlOp il
from occurring.. An)'one ""ho has been llltgeted for any kind of un .....anted sexual contact
in prison. whelher simple harassment. touch·
ing or anal pcnetmlion, please conlllcl: Prison
Project. Human Rights Watth, ]SO Fifth Ave,
]4th Floor, Ne..... Yotk, NY 10118, attn:
Joanne Mariner, Anomey.at.Law. The names
and identifying information of all persons con·
llIeting Human Rights Wmch will remain
striclly confidenlial.

Page 14

PRISON LEGAL NEWS
"Perhaps the most detailed journal describ·
ing the development of prison law is Prison
Legal News." •• Marti Hiken. Director Prison
Law Project of the National Lawyers Guild.

THOMAS E. SMOLKA AND ASSOCIATES
909 EAST PARK AVENUE
TALLAHASSEE, FLORIDA 32301·1646
TIIcaaaJ Eo Smolka. Esquire
Nct Adminalln Acrida

Telephone (850) m.64OO

Vlrglnlll Slate Bar ID Nc.ISl84

PLN is a 24 page. monthly magazine.
published since 199{). ediled by Washington
state prisoners Paul Wrighl and Dan Pens.
Each issue is packed with summaries and anal·
lYsis ofrecent court rulings dealing with prison
rights, written from a prisoner perspective.
Also included in each issue are news articles
dealing with prison.related struggle and ac·
tivism from the U.S. and around the world.
AMual subscription rates are SI 5 for prise
oners. If you can't afford to send SI5 at once,
send at least $7.50 and we will pro-rate your
subscription at SI.25 per issue. Please send no
less than S7.50 per donation. New (Unused)
U.S. postage stamps may be used as payment.
For non-incarcerated individuals. the
subscription rate is S20tyr. Institutional
subscriptions (for attorneys. libraries. govern·
menl agencies. non-governmental organiza~
tions. etc.) are S50/yr. Sample copies are
available for SI. Contact:
Prison Legal News
2400N.W. 80th St..Ste 148
Seattle WA 981 17

Telelas (850) 2U6484

EMAIL: tesmolka@-ortdnd.a11.lld

(pROVIDING CONSULTING SERVICES TO INMATES ON ADMINISTRATIVE,
CLEMENCY AND PAROLE MATTERS)

Dear FPLP Subscriber:
As many of you know, I suffered tbrougb many years on tbe receiving
end of tbe Florida Judicial System, before I was released after winning my
direct appeal. See Smolka v. State, 662 So.2d 1255 (Fla 51b DCA 1995), rev.
denIed, State v. Smolka, 668 So.2d 603 (Fla. 1996).

Undoubtedly, many of you may be in need ofeffectlve representation on
a variety of inmate related matters. In tbis regard, I would urge you to contact
me, as I provide prompt assistance on a fee paid basis.
Best wisbes,

Tbomas E. Smolka

James Fultz, Inc. offers many legal services to
prisoners and their families. We are a legal aid
society, and have many qualified professionals
on hand to assist you.
Please Write:

James Fultz, Inc.
BB & T Building, G130
Asheville, NC 28801

Anyone interested in getting in on a class action
suit for the banning of sexually explicit material
in Florida prisons,
Contact:
Paper Wing Company
PO Box 4855
Baltimore, MD 21211

F.P.L.P. VOLUME 4. ISSUE 5 '

ADVERTISING NOTICE

U

8

~
~

R
I
8
E

T
o
0-II

Due 10 a conmn fCll' our rcadm, I!lt FPLP SIalJ!aka mry
ell"on 10 ensure I!lIl FPI.P adwnisen aR rcpIlable.1IId qul!ifled
fcr lhe Kn'icea beina oll"ered. We cannot pcncnaJlY lIIOCl mry
ad\'Uliser. 1lowcMr. 1IIerefclR RaI!cn' aR advised lO aJways
personally eoIltae1 adwnism fCll' filt\ber infomwicn em their
qualilleations IftCI cxpcrimee before makiIIa a =mcia 10 hiIc au
Illcmey ClI' lIIher ptOfeaicUI seni= ptOYiclu. Readers shold4
neYer KlId ICSIlI doclllllellts. 10 ad\'Cl1ism before eonllehna dmn
Illd m:eiwina ditec1ions 10 scad sueh mataia\s.
For dlose wishinslO ad\'Cl1ist m"'PI.P. pleat·.....Ie fCll' rate
infonnolion al lhe lilladac\dress...Ann:
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PH: 407156800100
Email: "l'l.P@aolClml
Webpage: memben.acl.",",FPI.PI"7'I.P
ClI'

mmIben.lripClcl",",-fPLP

SUBMISSION OF MATERIAL TO FPLP
Because of I!lt Iarae volUllle ofmail beins Reei>-ed by mJ'.
financinl ccnlidentiens. IIId I!lt iuhilil)' 10 Fowide illl!ividlW
le~1 asrislallU. ruclm should IlClI scad CClpia of Ie&d
cIocumUIlS of pending ClI' poIeIIIiII cues lO "1'I.P ~ tlnt
hawins conllCled lhe lUll" and m:eiviltj diR<UGn$.1O IClId
same. Neilhn "'PLP. ClI' iIs sWt_!1'~llliiiiy UlISCllieiled
material sent.
~ .--ReadeB ory-'ClIunled 10 ccnlinllC I'!---~ _ _ '"
mf~ .mcfWlinll newspaper c1ippiltss (pre- iIleIwIe rume
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fCll' your coopenlion Illd panieipaJicm mhe\pillg 10 Bellhe . tIlII. Your dTons llR greilly opprecialad.

Page 15

Florida Department of Corrections
260 I Blair Stone Rd
Tallahassee FL 32399-2500
(850) 488-5021
Web Site: www.dc.statetl.us

Ronda Cornxtlons CommiSSion
260 I Blair Stone Rd
Talluh""""" 1'1. 32399-2500
(850}l13-93 0
Fax (850}l13-9 141
EMail teofComlQrnall dc_statc.llus

Officc of the Governor
PL 05 The Capitol
Tallahassee FL 32399-000 I
(850) 488-2272

Web Site WWw.cb.SlatclluYIWlstagc:ncicslfo;
IblT)' .... Singlet3I')'. Sec:rd4I)'
(Per.«mal Sc..-r.:uary. Suunne Po\\cll)
Infomution.
.,.
(Info DuC\.'1Of. l\my Flack.)
OIT~ponden.:e Control

488·7480

Flonda Resource Orgamzauons

Chicflnspec1Dr Omcral
Cltlun's As5istance Adtmn..

._.
.."

922-4637
488·7146

Commission/Government Account.sbilily

The Florid:. C'unc:ellon1 Comn\! \lun " contpOlCd of to the People...
•.•.
922-6907
cighl Cthtent aJ'JWlmled by the go\.'emor 10 ovemc UIC
,488-04'20 Flnrilb Dcpanrncnl pi Concctiont. "dvUc thc gco.'CflIOf
Officc ofE:'(ccuti\C Clemenc)'
Ind legiJl~lurc on correctiON I ISSUQ. ~nd promote public
2601 Blair Slonc Rd.
.... .48R·7012 eduation ~bool Ole c:om:ctiocul I) lem in AoridJ, The:
. 488-9261 CommiJaion holdJ n::pJu med.inp uound the: stiLe
Bldg. C. Room 229
Inspo.1or GcncnJ. Frat Sdluknc'l:hl
......487-0558 "tndl the public nul .lIuend to prov;de Input on lS5ua
Int~le Comp;ll..."'l'
._.
Tanahassee FL 32399-2450
Health Sa"\'11;
922-6645 Inc! problc:mll arrectln! the COfTCCtiorul s)~cm In Florida
(810}l88-2952
PrUoncn wmha "00 fricncU :an:: cncoungcd to contact
(Clwlc=s Ml\lthc\.\,. MD. Aut. Sec.)
Coordinator: Janct Keels
the CommiAion 10 advise: than or problem MUI. The
As!i¢l,.nl S«tcw)' lOr Security Inst. Management
Stan Czemilll.... ...
488·8181 Comm.i.saion it lndcpc:ndcnt ofthc: FDOC mel is Inlaatcd
Rorida PlUOlclProbatlOn Commluion
Inmate CI1UlliQlion ...•
,_....488·9K59 In public JUlrticipOllti01l and enmmmu concerning thc o'er2601 Blair Stone Rd., Bldg C
Scnterk.'cStn.a 1ure
413·9337 sight orthe FDOC,
Tallahassee FL 32399·2450
Victim Auistanl:c
4k8·9166
CommlSS101'1 Mnnbcn
(850) 488-1611
Populalion Mgt... .
_ •... _
,488-9166
Edpi' M Dunn. 1r , Esq ...chaIr
Regional om..:
Katlr r Nichol.·Vice Chair
Department orLaw Enrorc:.cmenl
....(Rl0)4R2-9113
Region I.
Slc'\-.:n M Flono. PrufCDOf FlU
P.O 80.1489
Region II..
.(312)911·2031
IlMd F Huwr. Sbmll: Wakulla Count)"
.(407)241'()840
Alma B GuJes, MD
T"IJah..,see FL 32302
Regjoo III
Guy R~'d1, Jr ,Fonner Parott' C"cmrmUJlllnQ'
Region IV
(850)488-7880
(9")202·3800
Ray SaNorn. (Jlr.A!oos..a {"ount" ComrntDtOnCf
Reg.aon V..
.(813)7"4-~5SS
Web Ile: www.lc:Ue.stutcO.us
AaraftWaI.l.aa: ~da.T~Pro!~:EA
.

SUBSCRIPTION EXPIRATION??
Please cbeck )'our mailing label (or the date that )'our subscripllun 10
FPLP will expire. On tbe lOp line "ill be rcOected a dale such as ···Nov
98···. That dale indicates tbe lut month of)'our current subscription to
FPLP. When )'ou f'tceive the FPLP issue for tbat month, please renew
)'Our subscription immediately so that )'Ou do not miu as issue of FPLP,
Your support througb subscription donations makes publication possible
and is greatly appreciated, Please take tbe time to complete the enclosed
subscription (onn to subscribe to or renew your subscription to FPLP. rr
the subscription form is miuing, )'Ou may write directly, enclose the
requested donation, to subscribe.
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Notice so that the mailing list can be updated.
l"ju.rt;c~ anywlure is G threat to justiu t!l'O}"H-'hu~ -ltfartin Lusher King,

F.P.L.P. VOLUME 4, ISSUE 5

Ronda lnsutuuonaJ Lcgul Scm=
(Florida Prison Acuon Network)
I I IQ.C NW 8th Me
G"lOcsviJIe FL 326() I
(352)955-2260

I'll)( (352)955-2 I 89
EMail: liIS@afn.org
Web Site: www.afn,orglfilsl

Families with Lo\'cd ones
In Prison
710 FlllOders A\·e

Dajtona Bch FL 32 I 14
(904)254-8453

EMili!: Ilip@afn.org
Web Site: www.afu.orgl nip
Parole Elimination Network Group
1100 John Rhodes Blvd. #189
MeJbowne FL 32934
(407)254-2045

NFIaIGA Chapter can be
Enuulod at. nfsgpen@afn org

FLORIDA
PRISON
LEGAL
PERSPECTIVES
P.O. BOX 660-387
CHULUOTA, FL 32766

.

Page 16