For a number of years, this writer has been an activist in attempting to improve the conditions for prisoners in California. Not through civil disobedience and violence, but rather through the power of the pen. Being for the most part uneducated thugs, prison guards are the ones who know no other way but to respond with violence. Their lot is no different in problem resolution methods than the school yard bully. The problem or controversy is not solved by reason, logic, or right and wrong, but rather by who can physically overcome the other.

In prisons, this mentality is derived from the unfettered, unchecked, unmonitored grant of unlimited power to prison guards. This power over others becomes corruptive (See FN. 1.) When this type of power corruption is allowed to become organized, which is what prison guards have done through their union, the California Correctional Peace Officers Association ("CCPOA"), then the results are an out of control system such as has been reported in numerous government reports. (See FN. 2.), the State Senate Hearings (See FN. 3.), and a plethora of news media reports.

For a prisoner to advocate change through the power of the pen, he must become an "Appeal Writer," a "Writ Writer," or a "Jailhouse Lawyer," all of which are colloquial terms referring to the same type of person. The prisoncrats have attempted to make these into derogatory terms, as it is the power of the pen they fear most. They do not want prisoners telling their stories: what is really going on inside the prisons. They generally have no defensible position, so react violently to obfuscate the things they are really trying to cover up.

For the first approximately five years of incarceration at the California Training Facility ("CTF"), at Soledad, where I was housed at the Central Facility in "C" Wing, I had no problems with staff or other prisoners. Although there was a good deal of violence, it was mostly between gang members. In reminiscing, I do not recall the widespread open level of staff corruption that exists today at other institutions as having been prevalent at CTF in the early 1990s. However, at that time my writ writing was limited to helping other prisoners with legal matters that did not involve the institution, and therefore did not place me under staff scrutiny.

That changed in late 1993, when the California Department of Corrections ("CDC") decided to convert CTF from a Levels 3 and 4 institution to a Levels 1 and 2 institution, and transferred all Level 3 and 4 prisoners. Many were sent to open the then new facility at Lancaster. A few, such as myself, were sent elsewhere.

Several of us were sent to the California Correctional Center ("CCC") at Susanville. The day after we arrived the entire Level 3 yard, "Lassen Unit," went on a hunger strike. This was a serious major strike involving over 1000 prisoners and drew the immediate attention of Sacramento. The issues were mainly a lack of adequate medical and dental care, and a few other prisoners' rights including protesting the termination of the Handicraft Program. Through a quirk of fate, having to do with my known writing skills, even though I had only just arrived I was somehow elected by the prisoners to be a part of the negotiating committee. We met several times with the administration, and after three days of the strike it was called off following promises of problem resolution. The dentist was transferred, the medial procedures were improved, but we were lied to about Handicraft, and I was now identified to staff as one of the troublemakers even though I had only participated in the negotiations.

The public often hears of officers beating inmates, but what they do not often hear, and is probably far more common, is when officers orchestrate, arrange, or instigate the assault of one or more prisoners by other prisoners. It took them four years until those who they could control and did not know the history were transferred to CCC before it was arranged. I was attacked from behind at CCC, resulting in severe injuries including a fractured orbital socket and cheekbone, and several broken teeth as a result of being hit with a homemade sap. A weapon consisting of a large potato size rock placed inside the toe end of a sock, with the sock being swung by its other end and causing considerable damage when the rock portion impacts flesh and bone. And speaking from experience, it really hurts.

What happened is all too common, however, it is the why it happened that is the problem. It was simple retaliation that is deeply obfuscated and hidden, and probably not provable. The above description of the hunger strike was only the beginning, the battle over the Handicraft Program (See FN. 4), which was mandated by regulation continued. Several prisoners were promised prior to their transfer to CCC that their Handicraft Program would continue at CCC, only to be informed upon their arrival the program at CCC had been canceled, and the prisoners must dispose of their tools and supplies.

Many prisoners had purchased several hundred dollars worth of tools and supplies, and were not happy after being lied to prior to transfer, again after the hunger strike, and now being told they must dispose of their investment. Some had leather working tools, some made jewelry, some woodworking, and many like myself did artwork. The program is a known rehabilitation tool and recidivism lowering activity wholly paid for by the prisoners through the Inmate Welfare Fund.

In those days the regulations (15 CCR §3100) stated each institution "will" establish a Handicraft program. Based on this, appeals were filed and exhausted to the third level, with the crux of the debate being whether the word "will" is mandatory. The prisoners claiming it is a mandatory word, the CDC claiming in this context it is only permissive. A petition for a writ of Habeas Corpus (See FN 5.) Was filed on December 23, 1993. The court issued an Order to Show Cause, the CDC filed their Return (Answer), the prisoner petitioner filed his Traverse (Denial). Up to this point, I had written the legal briefs for the prisoners which did not place me in good standing with CCC and CDC staff and officials, who off the record complained this had cost them a half a million dollars in legal fees.

On May 5, 1994, the court ordered an evidentiary hearing and appointed counsel to represent the prisoner. On August 16, 1994, the Lassen County Superior Court issued the writ, finding that 15 CCR §3100 mandated the CCC to provide a handicraft program, and ordering the CCC and CDC to comply with the regulation, or change the regulation. On October 14, 1994, the CDC filed a notice of appeal in the Third Appellate District. The Central California Appellate Project appointed attorney Arnold Erickson, who did an excellent job of representing the prisoners.

The three judge appellate panel ruled in a two to one split on May 5, 1995 (See FN. 6.) With Acting Presiding Justice Blease, and Justice Scotland, ruling to affirm the superior court ruling. Justice Janice Brown wrote a dissenting opinion. This is where it became political. Janice Brown had been nominated to the California Supreme Court, and the California State Bar Association used this dissent as one of their examples of why the State Bar considered Justice Janice Brown unfit for the State Supreme Court. This is the same Janice Brown who is presently the subject of similar controversy following her nomination to the D.C. Circuit Federal Court of Appeals by President Bush.

Justice Brown is thought to have an ultra conservative philosophy. There is speculation that other ultra conservatives would like her to eventually sit on the U.S. Supreme Court, as they believe her philosophy to be similar to that of Justices Scalia and Thomas. Strict constitutionalists, strict constructionalist, who espouse following the letter of the law and adamantly oppose judicial activism. However, in this dissent, Justice Brown showed a clear attempt at judicial activism, and this activism was in favor of the state rather than following the letter of the law. Thus the controversy.

When 15 CCR §3100 was enacted in 1982, the preface to Title 15, Division 3, Chapter 1, Rules and Regulations of the Director of Corrections, stated in pertinent part, "The language of regulations is clarified as follows, 'must,' 'must not,' 'will,' 'will not,' 'shall,' 'shall not,' and 'may not' are mandatory. 'May' is permissive, subject to given conditions or alternatives."

Thus by their own original definition of the word in question, "will," the word is mandatory and the CDC did not have a leg to stand on from the very beginning. The litigation and appeal by the CDC was clearly frivolous. Had the prisoners pursued such a frivolous action they would have been severely chastised and probably sanctioned. While the prisoners won all the legal battles, they lost the war because in 1996 the CDC did what the superior court originally told the Department to do--the regulation was changed. "Will" was replaced by "may."

The Janice Brown dissent prompted Justice Scotland to write a separate opinion chastising the Brown dissent containing such statements as: ". ..the problem articulated by the dissent is one of the director's making, not one imposed as a matter of 'judicial prerogative.'" . . . "Nothing compelled the Director to use all-encompassing, mandatory language." . . . "In effect the Director wants us to be judicial activists and engage in strained construction of an unambiguous regulation so that it does not compel an undesirable result.". . . "I decline the Director's invitation." Justice Scotland then stated in a pointed paragraph:
 

Conversely, the Janice Brown dissent attacked the majority for not saving the Director's bacon, which tacitly advocated judicial activism on her part. In the aftermath, during State Senate Hearings for the conformation of Janice Brown to the California Supreme court, both Mr. Yakle the prisoner petitioner and myself were approached for comments on the Brown dissent. Neither of us had anything good to say. Needless to say, both of us became persona non grata to staff at CCC for this and writing many other writs and appeals. A status I also achieved at the California Mens' Colony ("CMC") West Facility ("CMC-W") at San Luis Obispo, and I do believe the Shasta County Jail is not all that pleased with my poison pen. They have, in fact, attempted to discipline me twice for contraband: Possession of writing pens.

On September 24, 1997, I arrived at CMC-W, and kept a low profile as I was still recovering from my beating injuries at CCC. Evidently, however, I am a slow learner. Some call me stubborn, but I prefer persistent. While CMC is a very mellow easy existence for a prisoner, it also suffers from the typical power corruption that now exists at all California prisons. However, I would not let them silence my writing.

One major problem existed at CMC-W: the prisoners were only being allowed an average time of seven minutes to eat a meal. This is insufficient time to achieve good digestion and health, and I was particularly handicapped due to my recent loss of several teeth. The solution of course is to file an appeal. The other prisoners were all too afraid of retaliation to file on their own, but were willing to join a group, or class action appeal, providing someone else put their name at the top. After a couple months of indigestion and procrastination, this slow learner put his name at the top of a Form CDC-602 Appeal.

After doing some research and learning that the issue of eating time was well settled for county jails (See FN. 7.), the appeal was filed. The 1978 court decision was subsequently incorporated into administrative law at 15 CCR §1240 for county jails, allowing 15 minutes actual eating time, and 15 CCR §1640 for Juvenile Detention Facilities allowing 20 minutes. Based on this and equal protection the appeal argued state prisoners should also be allowed 15 minutes to eat.

There is no nice way to describe what happened next, other than simply the feces hit the flabellum. The entire staff was in high dudgeon that some lowly prisoner would dare question their procedures. This is how they ran their feeding program, and they were not about to change. The hidden truth was the staff rushed the prisoners through the eating process and ended up gaining about 30 minutes in the schedule which staff could use as leisure time and to eat left over prison food that the prisoners were not served. This appeal initially made staff so angry they collectively began subtle attempts to make my life miserable.

The appeal was assigned to Lieutenant Graham Barter, the CMC-W, Central Services Watch Commander, to answer. Lt. Barter immediately summoned me to the Administration Building, and let me know in no uncertain terms how he felt about this appeal, and that he would make sure it "went away." He then instructed me to report to his office at lunch time to accompany him to the Dining Hall to assist him in timing the meal. Barter had me stand on display at the front of all the tables while he timed the meal and pointed me out to all the other inmates. Thus letting them know that this is what the guy looks like who is the cause of some "trouble" you all will now have. This backfired on him, as he had no concept of the number of prisoners with the same complaint who now united behind this appeal issue.

The Men's Advisory Council ('MAC"), at that time at CMC-W, was as corrupt as the staff because of having been hand picked by that staff for control purposes. The MAC Chairman, and his retinue, were all "gang bangers." Members of a Mexican street gang that was operating within CMC-W, and who while trying to please the Lieutenant began to attempt to catch me alone on the recreation yard to threaten and intimidate me into withdrawing the appeal. They only succeeded in catching me alone once, after that other factions of prisoners made sure I was never alone.

One fateful evening in 1998, the MAC Chairman and his retinue confronted myself and a group of co-signers on the Group Appeal. We were told in no uncertain terms that the MAC Chairman had just left the office of Lt. Barter, that Barter was very angry the appeal was being pursued, and that Barter had sent them on this mission to "persuade" us to drop the appeal. We were clearly threatened, and told that on this "Yard" appeals do not get filed unless approved by them--the MAC--and they did not approve of this appeal. This, of course, raised the ire of those prisoners who did not particularly have any use for the gang bangers running things. A crowd started to gather, the gang bangers were heavily out numbered, and were told to back off. That the whole "Yard" is now behind this issue as it is a problem for all the prisoners. Of course, Lt. Barter later denied his instigation, but everyone there knows what they heard and saw. This is typical of the type of staff instigation that has been the cause of riots in the past.

Although the prisoner population placed the MAC Chairmen in check, this did not stop staff threats, interference and retaliation. Anyone who is familiar with the system knows that Lieutenants do not write Rules Violations Reports ("RVR"), Form CDC-115 disciplinary actions. Lieutenants normally have a correctional officer write the RVR, and set it up so the Lieutenant is the Hearing officer. That way, the finding of guilty at the Hearing is preordained in their Kangaroo Court Hearing. Not this time, Lt. Barter was so incensed that he had been unsuccessful in "making the appeal go away," as he had promised his fellow officers, that his loss of face and anger therefrom led him into a personal vendetta and harassment campaign.

An RVR was written by Lt. Barter accusing me of typing the appeal on a "state" typewriter at my work assignment, and recommended a loss of job, loss of time credits, loss of privileges, etc. Barter had failed to check his facts: the type font on the typewriter in question did not match the type on the appeal. Barter himself then received an official Letter of Instruction ("LOI") in his personnel file for essentially writing a bogus RVR. LOIs affect the ability to promote, and this further incensed Barter. He was now livid.

I began suffering a great deal of untraceable harassment coming from many different directions, as Lieutenants have a great deal of power to orchestrate such things. At this point, I was beginning to wear down emotionally, and prison is emotionally difficult enough without a repeat of the staff orchestrated problems I had previously experienced at CCC. The addition of bogus disciplinary harassment coming after being disciplinary free for ten years was obvious for what it was, and was by design wearing me down. (See FN. 8.) Had this not been a group appeal the CDC staff would have succeeded with their underhanded tactics.

At this point now being worn out, I made a huge mistake and decided to let someone else take the heat for awhile. The appeal had been denied at the Third Level; the CMC staff thought they had won, and let us know it does no good to question their authority to do whatever they want. We then had one of the other cosignatory to the group appeal take over and put his name on the petition for a writ of habeas corpus that I wrote: In re Tim Hunt (December 17, 1998, San Luis Obispo County Superior Court, Case No. HC-3582 (1)). The court issued an Order to Show Cause against the CDC. My mistake was in not having my own name on the Writ, as that would have resulted in protection from the court.

Because the State Attorney General represents the CDC in defense of such actions, Deputy Attorney General representatives appeared at the Institution to time some meals. The Institution, having received advance notice of their arrival, put on quite the dog and pony show. Needless to say, the cover up was on, and the prisoners were given so much time to eat they didn't know how to react, and out of habit--rushed themselves. Of course, in their Response to the Order to Show Cause, the CDC told the court there was no problem. That the prisoners had plenty of time to eat.

Unbeknownst to the CDC, the prisoners had organized someone from each dorm to time meals. There being ten dorms, and about six months of timing, resulted in the accumulation of an indisputable amount of data that was attached to the prisoners' Answer or "Traverse" to the court. Even the harassment of myself was well documented in great deal more detail than summarized herein. Before it was over, approximately 450 legal declarations signed by prisoner witnesses were filed with the court. It is all a matter of court record. The Writ issued ordering adequate eating time.

That unfortunately, lasted only until the CDC convinced the court to discharge the Writ, claiming the problems no longer existed. When the court discharged the Writ, the harassment began anew and the eating time began to dwindle. The prisoners again began timing the meals, and an application was made for the court to reopen the Writ. The court declined. The staff again had a license to do as they pleased, and I was given an RVR for allegedly "creating a disturbance" in the Dining Hall. That disturbance being my timing of the meal and complaining of inadequate time to eat.

Due to what could only be explained as the CDC wanting to squelch the issue of retaliation, I attempted unsuccessfully several times to submit an appeal. (See FN. 9.) After being stonewalled each and every time from having the appeal accepted for processing, I filed a Petition for a Writ of Habeas Corpus. (See FN 10.) Although mailed on October 3, 2000, this petition was not acted upon for several months, and then only after I produced a Certified Mail Receipt form signed by the court clerk as having received the petition on October 4, 2000. The "Grounds for Relief" in the Petition were:
 

A statement of supporting facts was included, (See FN. 11.), and six Exhibits were attached which are explained in the supporting facts contained in Footnote 10.

In addition to asking for reimbursement of costs, the following two items were contained in the "Relief Requested:"
 

Are any of the readers of this article yet able to guess the court's answer to this petition and problem? On February 21, 2001, the Court concluded in part:
 

In retrospect, it is apparent the writ petition could have been better worded and more explicit, and should have contained relevant case law citations. However, an assumption had been made that the judge would actually read the attached exhibits, not just give them a cursory "review," as they contained a large quantity of explanation in detail. It would have been far wiser to be excessively redundant and repeat that same information in the body of the petition itself. However, when being constantly threatened, harassed, and oppressed, over this situation; one tends to be too busy looking over one's shoulder to attend to detail, instead putting the petition together as quickly as possible before the next attack form the opposition. (See FN. 12.)

This is just one example of many similar examples of how prisoners are systemically kept out of court. How the prison officials take advantage of the requirement of exhausting administrative remedy to keep prisoners from exercising the First Amendment rights to petition government for a redress of their grievances. When the prisoner cannot access the grievance system then the prisoner also will be denied access to the court system. Historically, when the frustration from not being able to present grievances peaceably reaches a certain level, then prison riots are the inevitable result.

Like the rest of the prison system in California, the Inmate Appeals System is also a failure. It is corrupt and often not accessible to the prisoners. This either because of denied access or because of the chilling effect caused by threats and fear. A system that is a major contributor to the overall $5.2-billion-a-year failed prison system. And sadly, both the state and federal courts are part of this failure for failing and/or refusing to do their duty as watchdogs over the other two branches of government, particularly the executive branch and its prison system, and protect the constitutional and civil rights of those being abused.

Political Prisoner Tom Watson
AT 054128-4, U-16
P.O. Box 7001
Atascadero, CA 93423

FN. 1. For more on power corruption see article "The California Prison System: A Design for Disaster," by Tom Watson, available at: Link.

FN. 2. See "Editorial: Another report? No Need. Existing reports tell the tale about prisons." Taken from Opinion at Sacbee.com, published February 6, 2004. This article lists 17 official state reports, and states that is not all of the reports.

FN. 3. California Senate Hearings held January 20 and 21, 2004, at the State Capitol by Senators Jackie Speier and Gloria Romero, to examine how the prison system polices itself.

FN. 4. Title 15, California Code of Regulations, Sections ("15 CCR") 3100 to 3109.

FN. 5. In re Steve Yakle, Lassen County Superior Court, Case No. W-921, filed December 23, 1993.

FN. 6. In re Steve Yakle, Court of Appeal, Third Appellate District, Case No. C 1019497, unpublished.

FN. 7. See Rutherford v. Pitchess, (D.C. Cal. 1978) 457 F.Supp. 104, giving inmates of the Los Angeles County Jail 15 minutes to eat their meals and socialize beginning from when the last person served sat down to eat.

FN. 8. Alleged infractions for such things as possessing "black" shoe polish, polish which had been purchased at the CDC Canteen at Soledad, and had been allowed into CMC along with my other property. Another for having permanent metal shelves which were riveted inside my locker. Then several harassment bed moves and attempts to provoke me into a violent reaction.

FN. 9. The appeal was rejected numerous times under the guise of the attachment of a supplemental sheet and supporting documents as not being allowed. The real reason being the local prisoncrats did not want to reopen the eating time issue or allow the retaliation evidence to become officially presented.

Title 15 CCR §3084.2 (a)(1), allows the attachment of a supplemental sheet, front and back, and 15 CCR §3084.2 (a)(2) provides, "Only supporting documentation necessary to clarify the appeal shall be attached to the appeal." However, 15 CCR §3084.3 (c) states, "Rejection criteria. An appeal may be rejected for any of the following reasons: [subsection (c)(5)] "The appeal is incomplete or necessary supporting documents are not attached."

The conflicting statutes create a confoundment, a double bind dilemma, a "Catch 22," as no matter what the prisoner does the appeal can be rejected. It was considered standard practice for appeals to be rejected for a failure to attach the complete package of RVR documents. In this case that consisted of eleven pages of documents, including the defense statement and witnesses statements which were presented to the Hearing Officer at the Hearing. Because the CDC had no evidence of guilt, but were determined to find me guilty, no witnesses for the defense were allowed at the Hearing. Therefore, they did not want any witnesses statements included with the appeal, and continually rejected the appeal without explaining their reason.

For the appeal to contain any less than the same documentation presented to and considered by the Hearing officer at the Hearing, would have been fundamentally unfair to the appellant. The Appeals Coordinator was attempting to reject all documentation except for that generated by officers, which would have been one sided.

FN. 10. In re Thomas Watson, San Luis Obispo County Superior Court, Case No. HC168 (2), filled 10/4/2000.

FN. 11. The Supporting Facts section of the Habeas Corpus form stated:

(1) Petitioner has been incarcerated by the California Department of Corrections ("CDC") since 1988, and is currently housed at the California Mens colony ("CMC") West Facility ("CMC-W").

(2) Petitioner had remained totally and completely disciplinary free for a period of approximately ten years. That is until he filed an administrative appeal on a Form CDC-602, Log Number CMC-W-98-0229, on February 25, 1998, which was a class action or group appeal that complained of inadequate eating time in the CMC-W Dining Hall. On December 17, 1998, Inmate Tim Hunt, also a class member of the group appeal, filed a Petition for a Writ of Habeas Corpus in this Court on the same issue in Case Number HC-3582(1).

(3) As a result of his involvement in this group appeal, and declarations provided for the Hunt Petition, Petitioner was harassed, oppressed and retaliated against, including being issued two Form CDC-115, Rule Violation Reports ("RVR").
 

(4) Due to his factual innocence and the numerous due process violations associated with the Grillo RVR and Hearing Process, Petitioner made numerous attempts to appeal the RVR only to be stonewalled by the CMC Appeals Coordinator, E. Wright, CC-II, who improperly rejected the Appeal several times. (A true and correct copy of the Appeals Package is attached hereto as "Exhibits 1-12"). [omitted from this article.]

(5) Petitioner originally filed the Appeal on January 6, 2000. CC-II Wright rejected the Appeal on January 25, 2000, stating, "You may attach only ONE (1) additional page to explain your appeal." (See EXHIBIT 1, Form CDC-695 dated January 25, 2000.)

(6) On February 3, 2000, Petitioner re-submitted the appeal with a cover letter stating the appeal contained only one additional page, front and back, as allowed by 15 CCR §3084.2(a)(1). The letter also stated that 15 CCR §3084.2(a)(2) allows the attachment of supporting documentation. (See EXHIBIT 3, Form CDC-695 dated 2/24/00, and labeled "3^rd Screen out.") Petitioner is unaware of any 2^nd Screen out.

(7) On March 1, 2000, Petitioner submitted the Appeal to the Chief Inmate Appeals in Sacramento, along with a cover letter complaining of the problem of having appeals processed and heard at CMC. (See EXHIBIT 4, letter dated March 1, 2000.) On April 7, 2000, Linda Melching, Chief Inmate Appeals Branch, rejected the Appeal and complaint, stating the appeal issue should be submitted directly to the Appeals Coordinator. (See EXHIBIT 5, letter from Department of Corrections, Inmate Appeals Branch, dated March 16, 2000.)

(8) On April 10, 2000, Petitioner re-submitted the Appeal to the Appeals Coordinator. On April 14, 2000, CC-II Wright again rejected the Appeal. (See EXHIBIT 6, Form CDC-695, dated April 14, 2000, and labeled "4^th Screen out.")

(9) Petitioner has made every reasonable possible effort to appeal RVR Log Number CMC-W-99-0933 through the CDC Administrative appeals system, but has been unsuccessful at even getting the appeal filed, let alone considered on its merits.

(10) Petitioner is without any other plain, adequate and speedy remedy at law, and now brings this issue before this Court.

FN. 12. Just a few days after receiving the denial of the petition for a writ of habeas corpus, I was paroled from CMC. Most of the issues became moot at that time, and simply not worth paying the court filing fees and other expenses that would have been required to pursue any issues that may not have become moot.