by John E. Dannenberg

A class-action lawsuit launched by Michigan state prisoners in 1988 which ultimately cost taxpayers $7.5 million in litigation costs was settled on November 4, 2003, resulting in prisoners gaining appropriate classification and psychiatric services, plus restrictions on administrative segregation that exacerbates serious psychological illness. In addition to retaining personal word processors, prisoners also attained expanded law libraries with 25 hour/week access and adequate photocopies, prompt legal mail processing, and longer attorney phone calls. Specified winter protective clothing was permitted as well. The acrimonious history of the case is replete with repeated attempts by the state to recuse Ingham County Circuit Judge James Giddings, culminating in a public rebuke by former Michigan Governor John Engler denigrating Judge Giddings as a "lunatic who must have gotten a mail-order law degree."

Prisoners John Cain, Raymond Walen, Jr., Elton Mizell, Paul Dye, John Ewing, Delbert Faulkner, C. Moore, Ramon Cobos and Ronald Simpson-Bey sued the Michigan Department of Corrections (MDOC) in the Michigan Court of Claims. Initially, the suit was a reaction to MDOC's then newly-announced tougher disciplinary system, as well as restrictions on prisoner clothing and personal property. Judge Giddings blocked the new regulations, setting the stage for a protracted legal battle. Indeed, when the pro per plaintiffs were given the aid of Prison Legal Services of Michigan, Inc. (PLSM) as counsel, the lawyers literally moved into a trailer on prison grounds (until thrown out in 2003 by order of the Michigan Supreme Court) to facilitate interaction with their clients.

The case (actually three cases, filed in 1988, 1993 and 1996) progressed and regressed through the Michigan Court of Appeals and even the Michigan Supreme Court on its tortuous path to eventual settlement. But even that settlement was a "shotgun wedding" literally commanded by the Michigan Supreme Court on March 19, 2003 in a summary order wryly noting that Court's previous order in 1996 for a "swift resolution of the case" back then.

Although neither party characterized the settlement as a "victory," MDOC attorney Jeff Baumann minimized it as "no key changes." "We've agreed to sit down and discuss some things, such as prisoner classification, to see if we come up with any new ideas," he said. But a review of the 78 page Settlement Agreement offers a more sanguine view of the accomplishments achieved by the prisoners and their attorneys, led by PLSM Executive Director Sandra L. Girard. The five agreements separately cover Classification, Personal Typewriters, Access To The courts, Security Threat Group Claims and Miscellaneous Issues.


Classification Issues Agreement


MDOC agreed to revise the Security Classification Manual to reflect whether a prisoner had served three years of his sentence or was within seven years of expected release, and to prohibit a Very High risk assessment if he had been clear of assaultive behavior for seven years. MDOC agreed to provide independent mental health evaluations for at least 25 selected segregation and Level VI general population prisoners nominated by PLSM as suspected of being seriously mentally ill. In maximum lock-up units, cell door window covers shall be removed for one hour per day. MDOC also agreed that release from a psychiatric lock-up does not mean automatic return to the previous prison of record. Prisoners found guilty of substance abuse shall not automatically be sent to administrative segregation.

Additionally, future classification procedure concerns shall be reviewed by MDOC and PLSM representatives in four Working Groups: Security Classification, Long Term Segregation, Reception and Guidance Center Testing/Evaluation, and Psychological/Psychiatric Services.


Personal Typewriter Issues Agreement


Some MDOC prisoners possessed typewriters/word processors with floppy disk capability that MDOC now wanted sent out. The resolution was that while new ones may be denied, existing ones (operable without the disks) may be retained for as long as they were repairable. However, all disks must be sent out, after MDOC first provided for printing out their contents. Un-repairable machines may be replaced only with a then currently approved model [116K maximum memory]. Approved manufacturer upgrade retrofits are permitted [limited to 128K memory]. Surge protectors were also allowed.

Access to the Courts Agreement


MDOC agreed to adopt within 45 days amended Policy Directives and Operating Procedures covering the following issues. Photocopies of necessary legal documents shall be produced within three business days; copy fee schedules shall be uniform statewide. Copies may be made during regular law-library call outs. The prison store shall sell 500-sheet reams of copying paper.

Grievance procedures were streamlined; grievances are deemed filed when sent. The lack of copies of "necessary exhibits" shall not be fatal to grievance submissions MDOC shall provide such copies at no cost.

"Legal mail" was defined to include correspondence with a court, court reporter, attorney, or party to a new or pending lawsuit. Expedited legal mail shall include mail to PLSM, the State Appellate Public Defender and any legal aid organization. MDOC was required to add to its indigent prisoner postage fund and to speed filing fee disbursements so as to reach the post office within two business days. Requests for Certificates of Prisoner Account Activity for the courts shall be produced within five business days. Court access problems shall be addressable to the Deputy Warden's office within 24 hours, using a provided "Flash Kite" form.

Importantly, MDOC agreed to bi-annual reviews of the content of its law libraries. A comprehensive listing of required books is attached as an exhibit to the Agreement, covering regular law libraries and mini-law libraries. [PLN is listed as a recommended supplemental resource.]

Prisoner phone calls shall only have one voice-over announcement per call. Prisoners shall be allowed to bring their legal papers to an attorney phone call, and a current Bar Journal directory shall be available. Monitoring or recording of (now up to 20 minute) attorney phone calls is prohibited.

MDOC agreed to provide training for its law library clerks, using an approved curriculum. A "legal writer" (jailhouse lawyer) assistance program shall be put into state-wide operation. Requests for such assistance which may be renewed annually until case completion shall be granted/denied within 10 business days. The assisting writer is permitted to possess the "client's" legal materials.

Miscellaneous Issues Agreement


Remaining issues settled include provisions for safely storing/transporting excess personal property, or providing for sending it home without engendering a misconduct ticket for contraband. Indigent prisoners having excess legal property shall be loaned a storage footlocker.

To cope with severe Michigan winters, prisoners were permitted more frequent returns from yard and to retain/purchase winter gloves, mittens and coats. Widows/widowers were allowed to retain and wear their wedding bands. Personal letters and photos were permitted at all security levels. Level VI security prisoners shall receive meaningful in-cell recreational activities. Claim procedures/liability for state-issued clothing were defined.

PLSM lawyers/staff were permitted to meet with up to 25 class members at a time for Level I/II prisoners, and individual visits at Level VI. MDOC agreed not to impede mail between named class members and each other or other class members.

All provisions of the Agreements are subject to dispute resolution under the auspices of Judge Michael G. Harrison. See: Cain v. Michigan Department of Corrections, Michigan Court of Claims Nos. 88-61119-AZ, 93-14975-CM, 96 16341-CM; Michigan Court of Appeals Nos. 239116, 240101; Michigan Supreme Court Nos. 123395, 123396 [451 Mich. 470, 518; 548 NW 2d 210 (1996)] and Order, 3/19/03.

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