|click for information|
Tommy Silverstein's Appeal Number One and Rejection
Tommy Silverstein has been held in TOTAL isolation for 23 years- he never gets out of his cell or has human contact except for an occassional guard at his cell door. He killed a guard many years ago, and is here appeaaling for more mild conditions This man has rehabilitated himself- he is not the man he was. We will scatter his essays and art work around this blog art. The ironic thing is, since he has been in the prison in Florence CO, he is not allowed his art supplies,the mainstay of his life. None of the prisoners in segregation are allowed art supplies, another testiment of the inhumanity of our "justice system".
Look at the side panels of this blog for ways to help Tommy join the general prison population.
Now for the Appeal
Siiverstein. Thomas E, 14634-116 Unit Z Florence
Part A - Inmate request:
B.F.8 states I'm currently in segregation because my placement in other units poses a threat to security and good orderly running of this Institution and B.O.P. facilities, therefore my request to be placed in genera! population is denied.
On the contrary I have an exemplary disciplinary record for 19 years! To ignore this institutional adjustment is evident of a B.O.P. vendetta against me, and the real reason for my indefinite isolation status, and a clear violation of B.O.P.s own policy 5270, 07 C N - 05. Sept. 29 1994 CH, I PG. 3 (4) Disciplinary action may not be capricious or retaliatory, (5) Staff may not impose or allow imposition of corporal punishment of any kind", and flies in the face of numerous court rulings, i.e. Morris v Travisono cite as 549 F, supp;29i (1982).
The district court, Pettine, senior Judge held that the segregated confinement of the prisoner for eight and a half years without sufficient penological justification, thus resulted in unnecessary and wanton infliction of pain in violation of the 8th amendment, since neither the prisoner's criminal record nor his disciplinary record during confinement justified continued, solitary confinement, and since the claim that the prisoner was too dangerous to be returned to the general population, appeared to-be mere pretext for unduly punishing him for his conviction of murder of a prison guard. 1. Criminal law key 1213, prisons key 13 (5) solitary confinement is not per se unconstitutional under certain circumstances. However solitary confinement may be so onerous that it constitutes a cruel and unusual punishment. U.S.C.A. constitutional amendment. 8.
Professor Connon testified that lie was familiar with Carillos prior conviction and crimes of violence against correction officers. His recent disciplinary record as well as the current circumstances of his confinement(TR. At 14 - 22). According to Professor Connon, because of what this man did in 1973, there is a plan to keep him in this kind of sub- human state which borders on daily torture of a human being (TR. AT 33) In a prison book by Pete Earley: The Hot House page 123 - 4, Craig Trout, a B.O.P. official, said he knew exactly where to put me after I moved from U.S.P. Atlanta 10 U.S.P. Leavenworth.
Associate Warden Smith at Leavenworth, had known officer Clutts (the person I killed) personally and had attended his funeral. ''As far as I'm concerned Silverstein is a cold blooded, blood thirsty, worthless killer" Smith said on pages 226 - 7. Fm kept on "no human contact" status, as one Bureau official explained,
"When an inmate kills a guard, he must be punished. We can't execute Silverstein, so we have no choice but to make his life a living hell. Otherwise other inmates will kill guards too, there has to be some supreme punishment, Every convict knows what Silverstein is going through. We want them to realize if they cross the same line that he did, they will pay a heavy price!'" In applying contemporary standards of decency to challenge prison conditions, the Supreme Court has held that the eighth amendment prohibits not only physically barbarous punishments, but also "unnecessary and wanton" inflictions of pain that are totally without penological justification. Gregg v Georgia, 482 U.S. 153, 173, 183, 96 S.CT.2909,2925, 2929, 49L Ed. 2d 859 (1976):seen so Estelle v Gamble, 429 U.S.97.103,97 S. CT.285, 290,501, Ed.2d 251 (1976).
As the first circuit has observed, where solitary confinement is imposed (1) inappropriately or for too long a period, even permissible forms of solitary confinement might violate the eighth amendment. O'Btien v Moriarty, 489 F2d 941. 944 (1st cir 1974) (emphasis added) It goes without saying that a prison Warden may not constitutionally put an inmate in administrative segregation, involving solitary confinement, or other rigorous conditions of imprisonment, simply because he dislikes the inmate, or desires to punish him for past misconduct. Moreover, it should be emphasized that the reason or reasons for the segregation must not be valid at the outset, but must continue to subsist during the period of the segregation.
Conditions in prison change as they do every where else, and a reason for administrative segregation of an inmate that is valid today, may not necessarily be valid six months or a year into the future. 525 F, 2d at 400, As this court observed in Morris v Travisono , even if a person is confined to an air conditioned suite at Waldorf Astoria, denied of meaningful human conduct for such an extended period, may very well cause severe psychological injury. 499 F, supp, at 160, see O'Brien v Moriarty., 489 F, 2d at 944c ( "for a person to be cut off markedly from all others is a privation not to be underestimated" ) Courts have a responsibility to ensure that conditions of prisoners confinement are not cruel, and unusual punishment in violation of the eighth amendment. Rhodes v Chapman, 1015. CT at 2401 and this determination necessarily involves a review of correctional officials' decision- even if they pertain to prison security and -discipline.
It cannot be seriously contended that prison administrators can wholly evade judicial review by merely raising institutional security concerns. See Procnier v Martinez, 416 U.S. 396, 405-06. 945-T, 1800; 1808, 40L Ed 2d 224 (1974). Johnson vAvery 393U.S. 483, 486, 895. CT. 747; 749, 2IL. Ed 718 (1969). (2) After a thorough examination of the record in this case 1 find that the defendants' decision to house Carillo in solitary confinement for the past eight and a half years, is without sufficient penological justification, and as a consequence has resulted in the unnecessary and wanton infliction of pain" in violation of the eighth amendment. CT Estelie v Gamble. 42DS. At 103, 97 S. CT. AT 290 cutting an individual off from all meaningful human contact after the reasons for such segregation no longer exist offends in a fundamental way contemporary standards of decency.
Defendants claim that Carillo is too dangerous to be returned to the general population, appears to this court to be a mere pretext for unduly punishing him for his 1973 murder conviction. In the 8 years that have elapsed since that conviction, the defendants have not meaningfully reviewed Carillos progress, nor have they attempted to evaluate whether he could adjust to the general population, instead they have advanced a series of unsatisfactory justifications for Carillo's continued solitary confinement. (Nor am I given meaningful reviews.) The defendants refusal to even attempt to return Carillo to the prison G.P. once in the past eight and. a half years strongly reinforces this courts conclusion that Carillo has been kept in isolation not for his dangerous propensities, but because he was convicted of the murder of a prison guard.
The fact is that Carillo seeks only to be returned to the general population of a high security facility, where his activities can be closely supervised. There is simply no explanation why an inmate whose disciplinary record for the last several years, reveals no violent behavior would be any more difficult to control than other inmates, who are sufficiently "dangerous" that they must be housed in a high security facility, in some this court holds that the conditions of the plaintiffs confinement when considered in the light of the lack of a legitimate justification supporting it, are barbarous as the filthy physical conditions that have been consistently condemned in other prison cases. See ED Palmigiano v Garraky, 443 F, Supp, 956 (D.R.I. 1977): Pugh v Locke, 406 F supp. 318 (N.D. Ala. 1976) Accordingly. Carillo's treatment violates the eighth amendment, confining a man to 23 hours a da}' and denying him all opportunities to express himself for eight and a half years can have at least as devastating an effect on a prisoner as a complete lack of sanitation. Contemporary standards of decency forbid such treatment."
I've been held in total solitary confinement for 23 years, under far worse conditions than those described in the Corillo case. Showing an obvious malicious intent to make my life the "living hell"' expressed earlier by a B.O.P. official and indifference to my subjugation, My restrictions have gotten "more" stringent despite 19 years clean conduct, not less. There isn't only a lack of a review as B.P.8. clearly states, my fate has been predetermined as they regurgitate their 23 year (meaningless)mantra that 1 pose a threat etc, I'd like to know who I pose a "threat" too since I've not threatened anyone in 23 years! B.O.P. officials refuse to return me to the general population, ignore my exemplary conduct and have arbitrary punished me by taking what privileges that took me 19 years to earn. (I'm going backward not forward). In Kuck v Lewis cite as 216 f UPP, 2d 999 (D.Arizona, 2001) (2) inmates five and half confinement with no end in sight (as it is in my case, gave rise to protected due process liberty interest, (3) inmate could not: be indefinitely detained in a special management unit (SMU) based solely on his status of as gang member and absent evidence of overt misconduct. After Sandin, A state - created liberty interest arises when the prison's conduct toward an inmate imposes an "a-typical' and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484. 1155 3 2293.
The Sandin test requires a case by case examination of both the conditions of the inmates confinement and the duration of the deprivation at issue, Sandin 515 U.S. at 486,1165 CT. 2293, Keenan v Hall, 83 fed 1083 (9th cir, 1996) amended by 135 F. 3d 1318 (9th cir. 1998) See Sealey v Giltner, 197 F, 3d 578. 585 (2d cir 1996) In Koch's case, the deprivation is extreme in both degree and duration. Not surprisingly, the severe conditions of the SMU 11 (mine are worse) have adverse Psychological consequences. See Miller v Stewart, 231 F. 3d 1248. 1252 (9fn cir. 2000). It is well accepted that conditions such as those presented in SMU11, can cause psychological decompensation to the point that individuals may become incompetent. Comer v Stewart, 215f,3d 910, 915 ( 9lh cir. 2000) "We and other courts have recognized that prison conditions remarkably similar to ( SMU11)can adversely effect a persons mental health.
Madrid, 889 F supp at 1230. Discussing the psychiological deterioration that results for isolation in SMU11 like conditions : see also McCleary v Kelly. 4 supp 2d 195. 208 (WDNY, 1998} "The notion that" prolonged isolation from social and environmental increases the risk of developing a mental illness does not strike this court as rocket science. The expert testimony submitted by parties served to confirm the obvious. At trial Kock's expert witness testified that isolation in SMU11 causes detrimental pathological effects on the inmate. Koch has been confined to SMUI1 for five and a half years this clearly1 is long enough to trigger liberty interest. See Colon v Howard. 215 F 3d 227, 230 - 32 (cir. 2000) Discussing cases and holding that 305 day confinement satisfied the Sandin standard. Shoat v Horn. 213 F 3d 140 143 - M (3d cir. 2000) Holding that segregation for eight and a half years triggered due process rights, furthermore, Koch will remain in SMUI1 indefinitely. See Seeley, 197F, 3d at 586 (especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might be atypical. Sandin. 535 U.S. all84, 1155. CT 2293: see Shoats, 213. 3d at 144, "We have no difficulty concluding that eight years in administrative custody, with no prospect of immediate release in the near future, is atypical in relation to the ordinary incidents of prison life"
Judge Gilman in his concurring opinion as a sixth circuit case Judge. Jones v Baker observed that confinement in ADM, lockdown for a. period over two and a half years "is clearly a rare occurrence" The court in Morris v Travistino referred to confinement of all inmates in SEG, for the period of seven years, without a systematic plan for rehabilitation as "the epitome of warehousing" and therefore sufficient to give rise to a liberty interest. In a recent unpublished decision, the 5th cir. Suggested that a 10 year confinement in extended lock down gives rise to a liberty interest.
At least one court within the 5th cir. has gone even further than the third cir. In Shoat v the 5th cir. In Colgrove, in Beene v Hammer,2003 WL 21673456. 4 (ND Texas July 15th 2003. The court held that even A 6 - MO stay in lockdown could give rise to liberty interest. Wilkerson, supra, 329 F3d at 435. since the plaintiff in present matter allege that the approximately 120 lockdown reviews afforded them by LSP staff were a sham proceedings, it is worth noting that the plaintiff in Kelly also received monthly evaluations regarding his confinement in ADM, SEG. However the appeals court affirmed the district courts holding, that the monthly evaluations were a mere sham and were of no practical value to the inmate involved; notably Kelly was only in ADM, SEG for approximately 3 years, versus 28-33 years for the present plaintiffs.
3/3/06 Thomas E. Silverstein.
Now the Rejection
BP-229 RESPONSE Case Number: 406466-F1 Name:SILVERSTEIN,Thomas Register Number: 14634-116
Your Request for Administrative Remedy dated March 3, 2006, and received in this office March 13, 2006, has been reviewed. You claim you are unfairly housed in Segregation. You request to be placed in General Population.
A review of the issue raised in your Request for Administrative Remedy has been conducted. The results of the review revealed you are properly confined in the Special Housing Unit at ADX Florence. Specifically, given your violent history, you are not appropriate for placement in General Population. However, you are scheduled for a semi-annual review in June of this year. At the review, you may make your request for General Population if you so desire. You will not be released from the Special Housing Unit to General Population at this time.
Accordingly, your Request for Administrative Remedy is denied. In the event you are not satisfied with this response and wish to appeal, you may do so within 20 calendar days of this response by submitting a BP-230(13) to the Regional Director, Federal Bureau of Prisons, North Central Regional Office, Gateway Complex, Tower II, 8th Floor, 400 State Avenue, Kansas City, Kansas 66101-2492.
March 21 2006
R. Wiley, Warden
to more art work and tommy's second appeal with descriptions of life in solitary