Retiring Arizona Prison Watch...

This site was originally started in July 2009 as an independent endeavor to monitor conditions in Arizona's criminal justice system, as well as offer some critical analysis of the prison industrial complex from a prison abolitionist/anarchist's perspective. It was begun in the aftermath of the death of Marcia Powell, a 48 year old AZ state prisoner who was left in an outdoor cage in the desert sun for over four hours while on a 10-minute suicide watch. That was at ASPC-Perryville, in Goodyear, AZ, in May 2009.

Marcia, a seriously mentally ill woman with a meth habit sentenced to the minimum mandatory 27 months in prison for prostitution was already deemed by society as disposable. She was therefore easily ignored by numerous prison officers as she pleaded for water and relief from the sun for four hours. She was ultimately found collapsed in her own feces, with second degree burns on her body, her organs failing, and her body exceeding the 108 degrees the thermometer would record. 16 officers and staff were disciplined for her death, but no one was ever prosecuted for her homicide. Her story is here.

Marcia's death and this blog compelled me to work for the next 5 1/2 years to document and challenge the prison industrial complex in AZ, most specifically as manifested in the Arizona Department of Corrections. I corresponded with over 1,000 prisoners in that time, as well as many of their loved ones, offering all what resources I could find for fighting the AZ DOC themselves - most regarding their health or matters of personal safety.

I also began to work with the survivors of prison violence, as I often heard from the loved ones of the dead, and learned their stories. During that time I memorialized the Ghosts of Jan Brewer - state prisoners under her regime who were lost to neglect, suicide or violence - across the city's sidewalks in large chalk murals. Some of that art is here.

In November 2014 I left Phoenix abruptly to care for my family. By early 2015 I was no longer keeping up this blog site, save occasional posts about a young prisoner in solitary confinement in Arpaio's jail, Jessie B.

I'm deeply grateful to the prisoners who educated, confided in, and encouraged me throughout the years I did this work. My life has been made all the more rich and meaningful by their engagement.

I've linked to some posts about advocating for state prisoner health and safety to the right, as well as other resources for families and friends. If you are in need of additional assistance fighting the prison industrial complex in Arizona - or if you care to offer some aid to the cause - please contact the Phoenix Anarchist Black Cross at PO Box 7241 / Tempe, AZ 85281.

until all are free -

MARGARET J PLEWS (June 1, 2015)


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Saturday, March 26, 2011

1983 Prisoner Civil Rights Complaints.

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

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

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

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

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

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

Here's the AZ ACLU's resources page.

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

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

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

That should be enough to get everyone started.

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


A) 42 U.S.C. Section 1983

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

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

b) THREE BASIC ELEMENTS of a Section 1983 Claim:

1. Who is a Person?

A: Any individual, Supervisors, Entities and Municipalities. 

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

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

(c) Supervisors: A supervisor may be held personally liable for his/her supervisory failures that result in a constitutional deprivation. Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1991); Watkins v. City of Oakland, 145 F.3d 1087, 1093-94 (9th Cir.1998).
i) In Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir. 1995), the Ninth Circuit Court reasoned that:
Even when a sheriff did not knowingly disregard a plaintiff’s plea to see a doctor, he can be held liable if he knew the jail’s system was so deficient as to expose prisoners to substantial risk of significantly unmet serious medical needs. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987).
(d) Local Municipalities - eg. Cities, Counties, Other legal entities school boards.

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

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

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

C: The case of Private Prisons-

(a) The theories of liability and defenses available depend on whether it is a state prisoner or a federal prisoner bringing the action. The defenses of qualified immunity and the Federal Prison Litigation Reform Act (PLRA) are often not available in litigation against private prisons.
(b) "Under color of law": Private corporations operating state or local prison or jail facilities may be sued under 42 U.S.C. § 1983. Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 n.5 (2001); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003) (reinstating § 1983 claim against jail’s private medical provider).
(c) No Qualified Immunity: Qualified immunity is not available as a defense in a Section 1983 claim brought against privately employed prison guards and their corporate employer. Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100 (1997)
2. What's "Color of law?"

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

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

(b) Private companies- working with state.

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

A: Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.
B: Section 1983 does not grant a cause of action for violations of purely state law.
C: Other Laws to Consider: Americans with Disabilities Act (ADA); Rehabilitation Act, Individuals with Disabilities Education Improvement Act (IDEA).


i. What are the causation elements?

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

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

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

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

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

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

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

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


A: PreTrial Detainees: Fourteenth Amendment: Neely v. Feinstein, 50 F.3d 1502, 1508 (9th Cir. 1995) ("[0]ur Fourteenth Amendment jurisprudence has never required officials to have a subjective awareness of the risk of harm in order to be deemed `deliberately indifferent."'); Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (holding that "deliberate indifference is the level of culpability that pretrial detainees must establish for a violation of their personal security interests under the fourteenth amendment.").
B: Convicted Inmates: Eighth Amendment Strict standard: Requires a showing that the force was used "maliciously and sadistically to cause harm." Helling v. McKinney, 509 U.S. 25 (1993); Whitley v. Albers, 475 U.S. 312 (1986) (deliberate indifference means "malicious, sadistic, or wanton intent to harm" rather than good faith effort to restore order); To the extent that the plaintiff must prove a due process or cruel and unusual punishment violation, the immunity defense should be inappropriate. Wilson v. Seiter, 501 U .S . 294, 111 S.Ct. 2321 (1991), Hudson v McMillian 503 U.S. 1, 112 S. Ct. 995 (1992)
C: Conditions of Confinement: Farmer v . Brennan, 511 U .S . 825, 114 S .Ct . 1970, 1976-77 (1994) (prisoner safety from other prisoners, transsexual's 8th Am. claim for loss of health or safety after attack by other inmates requires proof of "deliberate indifference" as subjective component and "substantial risk of serious harm," as objective component). Jail officials have a duty to protect inmates from violence at the hands of other inmates. See Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005)

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

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

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

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

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

e) Not Actionable:
i. Forbidden by Judge-Made, Sometimes Called "Equitable,' Principles, see Younger v. Harris, 401 U .S. 37 (1971) (§ 1983 cannot ordinarily be used to obtain an injunction against state criminal proceeding) ;
ii. Claims against Purely Private Person Alleging that they violated the Fourteenth Amendment are not Actionable. See Blum v. Yaretsky, 457 U.S. 991(1932)
iii. Claims against State Officials for Violation of State Law.

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

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