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Jail and Prisoner Law Bulletin

A Civil Liability Law Publication
for officers, jails, detention centers and prisons

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2002 JB Jan (web edit.)

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CONTENTS

Featured Cases with Links
Supreme Court Actions
Damages: Nominal
Disability Discrimination
Medical Care
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Assault: By Officer
Prisoner Death/Injury
Prisoner Suicide
Racial Discrimination
Sexual Assault
Strip Searches
Noted in Brief
Attorney's Fees
False Imprisonment
Medical Care
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Restraint
Prisoner Suicide
Segregation: Punitive
Cross_References

FEATURED CASES
WITH LINKS TO THE OPINIONS

Supreme Court Actions

U.S. Supreme Court, by 5-4 vote, rules that federal civil rights claims may not be brought against private companies acting under color of federal law, such as a private company operating a halfway house under a contract with the federal Bureau of Prisons.

            The U.S. Supreme Court, in a 5-4 decision, has ruled that federal prisoners may not file civil rights claims against private corporations operating a halfway house under a contract with the Federal Bureau of Prisons (BOP). The Court declined to extend the implied damage remedy for violation of constitutional rights first recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) to claims against private companies allegedly acting under color of federal law.

            A federal prisoner diagnosed with a heart condition was transferred to a halfway house where he was to serve the remainder of his sentence, and was assigned to living quarters on the fifth floor. The company running the facility adopted a policy requiring inmates residing below the sixth floor to use the staircase rather than the elevator to travel from the first-floor lobby to their rooms.

            While the prisoner was exempted from this policy, he claimed that one of the company's employees forbade him to use the elevator to reach his fifth-floor bedroom, and that he then suffered a heart attack and fell injuring his left ear after climbing the stairs. In addition to suing individual employees of the facility, he sought to impose liability on the company for alleged violation of his constitutional rights.

            The Court's majority noted that federal prisoners in government run facilities do not enjoy the remedy sought by the plaintiff prisoner. "If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States or the BOP."

            The Court noted that federal prisoners' only remedy for an alleged constitutional deprivation lies against the individual officer, and not against the federal government itself. The Court concluded that it should not "impose asymmetrical liability costs on private prison facilities alone." If such a decision is to be made, the Court said, that is a "question for Congress, not us, to decide."

Correctional Services Corp. v. Malesko, #00-860, 2001 U.S. LEXIS 10812.

Click here to read the text of the decision on the web.

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Damages: Nominal

Prisoner waived any right to nominal damages in lawsuit against officer he claimed assaulted him by failing to ask for them; jury did not act improperly in finding that officer's use of force was excessive but that prisoner suffered no compensable damage.

            A inmate at a county jail overheard an officer call another prisoner "stupid" or something derogatory, and commented to his cell mate that the officer "didn't have to do that." The officer apparently overheard the inmate's comment and approached the cell, asking him what he said. A discussion ensued, following which the officer allegedly approached the prisoner after opening the cell door, and put his forehead against the prisoner's forehead, telling him to stay "out of his business."

            The prisoner allegedly told the officer that if he touched him again, the prisoner would "see" him in court. According to the prisoner's federal civil rights lawsuit, the officer then grabbed him by the throat, slammed him against a wall, threw him to the ground, grabbed the back of his collar and "ran" him toward another wall, as well as inflicting pain in other ways. Another officer eventually stopped the attack.

            The prisoner claimed that he suffered neck and back pain, broke his glasses, and suffered a cut to his left knee. No evidence was presented, however, of visible injuries, medical expenses, or medical testimony confirming his injuries.

            The defendant and other officers disputed the prisoner's version of the incident. The defendant officer denied beating the prisoner. Photographs of the prisoner taken after the alleged assault showed no discernible injury.

            A jury found that the officer used excessive or unreasonable force during the altercation but did not award the plaintiff prisoner any damages. The prisoner had not requested a nominal damages instruction or any interrogatory verdict directed to nominal damages.

            A federal appeals court upheld this result, finding that the evidence supported the jury's finding that the plaintiff did not suffer a compensable injury. "A reasonable jury could conclude from the evidence," the appeals court stated, that the officer's conduct "was not malicious."

            The appeals court also ruled that the request for nominal damages is "not automatic in an Eighth Amendment excessive force case," but instead the plaintiff must seek such damages and waives any right to them if he fails to do so. In this case, the plaintiff's attorney actually "vehemently opposed a nominal damages instruction," and this, together with the failure to object when the trial court did not give such an instruction "unequivocally waived his right to nominal damages."

            "Further," the court commented, "we question whether nominal damages are appropriate in an Eighth Amendment case, even if sought. This is so because in an Eighth Amendment case, the plaintiff must show actual injury, whether it is compensable or not." The court did not explicitly rule on the issue, however, in light of its finding that the prisoner had waived any right to nominal damages.

Oliver v. Falla, #00-10520, 258 F.3d 1277 (11th Cir. 2001).

Click here to read the text of the decision on the court's website.

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Disability Discrimination

Paraplegic prisoner could pursue claim against prison warden for failure to provide him with wheelchair-accessible transportation to and from court hearings and with a wheelchair-accessible scale to allow medical personnel to accurately weigh him. Claims concerning denial of access to library, exercise, and recreational facilities, however, were properly dismissed as lacking specific factual allegations.

            A paraplegic prisoner in an Illinois correctional facility sued the prison warden under  the federal Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. He claimed that the prison engaged in disability discrimination against him by failing to provide him with adequate transportation in a wheelchair-accessible van to and from court appearances and that he was also denied access to comprehensive physical examinations and medical care because of the lack of availability of a wheelchair-accessible scale on which medical personnel could accurately weigh him.

            Other complaints were that he was not provided with access to library, exercise and recreation facilities.

            An Illinois appeals court overturned the trial judge's dismissal of the claims concerning wheelchair-accessible transportation and scales.

            The plaintiff prisoner had a right to be handled and "transported in a safe and appropriate manner consistent with his disability," the appeals court stated.  The failure to provide an accessible scale also could violate prohibitions on providing public services that deny disabled individuals the equal benefit of the service.

            In further proceedings, the court said, it must be determined whether the plaintiff can prove he was denied a benefit or service "because of his disability or whether defendant can show he made reasonable accommodations for plaintiff's disability or whether further accommodation would have been an undue burden."

            At the same time, the court found that the prisoner's remaining assertions that he was denied a wheelchair-accessible library and exercise and recreation services to be "conclusions unsupported by specific factual allegations," which were therefore properly dismissed.

Evans v. Page, No. 5-99-0216, 755 N.E.2d 105 (Ill. App. 2001).

Click here to read the text of the decision on the court's website.

Click here to read the text of federal regulations on denial of services by a public entity on the basis of disability, 28 C.F.R. Sec. 35. The court opinion above refers specifically to Sec. 35.130(b)(1).

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Jury properly awarded $1.034 million in compensatory damages to wheelchair-bound arrestee injured while being transported in van that was not equipped with wheelchair restraints; appeals court rejects trial court's setting aside of jury's punitive damages award of $1.2 million, however, ruling that punitive damages are available in disability discrimination cases for denial of public services.

            A wheelchair-bound arrestee sued the police department, its officers and its board of police commissioners under the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12132, and the Rehabilitation Act, 29 U.S.C. Sec. 794, for injuries he allegedly received when being transported in a police van that was not equipped with wheelchair restraints.

            After a trial, a jury found the defendants liable for disability discrimination and awarded the plaintiff actual damages of $1,034,817.33 and punitive damages of $1,200,000. The trial court set aside the jury's punitive damages award.

            A federal appeals court rejected the claim that the police board was an "arm" of the state of Missouri for purposes of qualifying for Eleventh Amendment immunity. It also ruled that the arrestee was a "qualified individual with a disability," and that the defendants were liable for his injuries.

            The appeals court reversed, however, the trial court's ruling that punitive damages were not available under the two federal statutes. In doing so, it disagreed with another federal court of appeals which reached the opposite conclusion. Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996) (punitive damages not available under Section 504 of the Rehabilitation Act of 1974). After remand, the trial court may reach the issue of whether or not the punitive damages awarded were excessive, an issue it did not rule on before since it found that no punitive damages were available.

Gorman v. Easley, #00-1029, 257 F.3d 738 (8th Cir. 2001).

Click here to read the text of the decision on the court's website. (.pdf format).

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Medical Care

Inmate's claim that he was deprived of his dentures and his prescribed heart medication were sufficient to state an Eighth Amendment claim for deliberate indifference to serious medical needs, even if there was an adequate state law remedy for the deprivation of his property.

            A prisoner in an Indiana correctional facility sued prison officials for subjecting him to cruel and unusual punishment in violation of the Eighth Amendment. He claimed that he had been deprived of his dentures, as well as of prescribed medication which he required for a heart condition when he was moved from the general prison population to the isolation detention unit.

            When he requested that he be allowed to take his dentures with him to the isolation unit, a prison employee allegedly informed him that he would pack the prisoner's personal property during his morning shift. The prisoner claimed that the dentures and heart medication were not among his possessions which arrived at the isolation unit. He filed a grievance requesting these items "immediately," but allegedly did not receive them.

            A federal appeals court ruled that these complained of deprivations were adequate to assert an Eighth Amendment claim, since the prisoner allegedly was unable to chew his food without his dentures, and claimed to have suffered bleeding, headaches, and other difficulties as a result of not having them.

            Further, the prisoner claimed to have made two written requests for his heart medication and to have informed prison officials that his heart had been fluttering due to a lapse in taking the medicine, and that he risked heavy chest pains if he did not resume taking it. He allegedly received no response to these requests and further asserted that a second prison official attempted to "coverup" these incidents.

            The appeals court accordingly overturned the trial court's dismissal of the prisoner's complaint for failure to state a claim. While he may have had an adequate state law remedy under Indiana state law for deprivation of his property, barring a due process claim, the existence of that remedy did not bar his claim for deliberate indifference to his serious medical needs.

Wynn v. Southward, No. 00-2271, 251 F.3d 588 (7th Cir. 2001).

Click here to read the text of the decision on the court's website.

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Prison Litigation Reform Act: Exhaustion of Remedies

Prisoner could not pursue civil rights lawsuit over alleged inadequate medical treatment when he failed to ever submit a grievance under an available four stage prison administrative process.

            An Illinois prisoner suffered an abdominal hernia prior to his incarceration, and his doctor at the prison recommended surgery to repair the hernia, but no surgery was arranged immediately. In fact, it has not repaired surgically until almost two years later. The prisoner later sued prison officials for violation of his federal civil rights, seeking damages and injunctive relief over his allegedly inadequate medical treatment.

            A federal appeals court has upheld the dismissal of the lawsuit based on the prisoner's failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a).

            Even though the prisoner could not obtain the money damages he sought under the prison's four-step administrative review procedure, he was required by the law to exhaust it before first filing suit in federal court. In this case, the prisoner never used the grievance procedure to protest the quality of his medical care.

            The court rejected the argument that the grievance procedure was unavailable to him because an officer failed to comply with his request for a form needed to file the grievance, noting that the prisoner made the request approximately one month after filing the lawsuit. Accordingly, even if the officer improperly denied him the form, he made "no effort" to use the prison's administrative review process prior to the time he filed suit. The officer's later refusal to provide the forms, therefore, "could not have affected his ability to do so."

            While the prisoner also claimed that administrative remedies were not available to him because he has named many of the people who will assess his grievances as defendants in various lawsuits, the appeals court rejected this argument also. The prisoner "has yet to submit a grievance and has offered no evidentiary support for his assertion that the decision-makers who will address his grievance are biased against him."

            Without submission of a grievance, the prisoner "cannot even point to an adverse result arguably reached because of bias. He therefore cannot claim that the participation of the defendants in the processing of the grievance at issue ever has impeded his ability to seek meaningful review in the courts."

Massey v. Helman, #00-1478, 259 F.3d 641 (7th Cir. 2001).

Click here to read the text of the decision on the court's website.

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Prisoner Assault: By Officer

Officer's alleged slamming of cell port door on prisoner's hand after prisoner placed it there holding some garbage was a minimal use of force and did not cause a significant injury. Federal appeals court rules that it was a response to a legitimate security interest and was not an excessive use of force.

            A correctional officer entered a section of an Indiana prisoner in order to deliver to each prisoner a pair of gray gym shorts. These shorts were routinely distributed to prisoners through the cuff-port door, which is a small hatch within the cell door. After the officer gave the shorts to one prisoner, the prisoner placed his hand in the cuffport while holding some garbage, and the officer allegedly closed the cuffport door on the prisoner's hand.

            The prisoner sued the officer under 42 U.S.C. Sec. 1983, claiming that this action violated his Eighth Amendment right to be free from cruel and unusual punishment, as well as constituting battery under Indiana state law. He characterized the officer's action as "slamming" his hand in the cuffport hatch, "causing severe pain, swelling and bruising."

            The complaint also stated that the prisoner and the officer had prior conflicts and that the officer had previously "harassed" the plaintiff. The complaint also attempted to state a civil rights claim against the prison superintendent for allegedly taking no action despite being informed of the previous incidents between the officer and prisoner.

            Upholding summary judgment in favor of the defendants, a federal appeals court found that the "minor injury" suffered by the prisoner when the guard closed the cuffport door on his hand in the maximum security prison was insufficient to support an Eighth Amendment claim, even if the officer's action was intentional.

            Given all the evidence, the court stated, even if the prisoner's version of the incident were true, and he was merely attempting to "place" the garbage in the cuffport door rather than to "throw" it as the officer contended, there was no violation of constitutional rights by the officer. Instead, the officer had a legitimate security reason to close the cuffport door, whether the prisoner was actually attempting to throw the garbage "or merely holding it through the cuffport while uttering hostile words."

            In closing the door, the officer "applied only enough force to cause superficial injuries" to the plaintiff's hand, the court found. It ruled that a "rational jury" could "draw one of only two possible conclusions": either that the incident was an accident, or that the officer deliberately "and perhaps unnecessarily applied a relatively minor amount of force to achieve a legitimate security objective." Neither "scenario would involve a use of force that was 'repugnant to the conscience of mankind,'" the court summarized.

            While a prisoner is not required to demonstrate a "significant injury" to state a claim for excessive force under the Eighth Amendment, "the degree of injury is relevant to determining whether the use of force could plausibly have been thought necessary in a particular situation," the court noted.

            The force used was not sufficient to raise a genuine issue of whether the officer shut the cuffport door "maliciously and sadistically for the very purpose of causing harm."

            The court also noted that the evidence of prior conflicts between the prisoner and officer did not constitute any evidence that the officer used force on the "occasion in question maliciously with the intent to cause harm." The Supreme Court has not, the appeals court stated, "included the history of (non-violent) conflict between an inmate and a guard among the factors that should be considered in determining whether a guard's use of force on a given occasion is malicious or unjustified."

Outlaw v. Newkirk, #98-4252, 259 F. 3d 833 (7th Cir. 2001).

Click here to read the text of the decision on the court's  website.

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Prisoner Death/Injury

Federal prisoner awarded $900 in damages for injuries suffered in vehicle accident while being transported to a new facility.

            A federal prisoner sued the U.S. government under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. for personal injuries he claimed he suffered when he was in a government-owned van being transported from one prison facility to another. The car that hit the van was owned by the U.S. government also, and the accident occurred when the prison van stopped suddenly and was bumped by the trailing car, which was driven by an employee of the U.S. Bureau of Prisons.

            While the government did not dispute that it was liable for negligence in the accident, it did contend that the prisoner was not actually injured.

            The trial judge found the prisoner's testimony more credible than that of correctional employees on the issue of whether the impact of the accident was substantial, particular in light of the fact that car which hit the van had a buckled front hood and leaking radiator following the collision and could not be driven from the crash scene.

            Both the plaintiff and another inmate in the struck van testified that there were seatbelts in the van, but they were not fastened. The court found that the prisoner's head hit the left side of the van and then the front steel grill. The record showed that the prisoner was taken to a hospital where he was diagnosed with a neck sprain and a scalp contusion, and was subsequently given a cane to use by prison officials at his new facility after he complained of continuing neck and back pain.

            The court awarded the prisoner $900 in damages, while rejecting his argument that he also suffered an ear injury and permanent hearing loss from the accident, since medical records showed that he had a prior hearing loss.

Chong-Won Tai v. U.S., 155 F. Supp. 2d 856 (N.D. Ill. 2001).

Click here to read the text of the decision on the AELE website.

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Prisoner Suicide

Estate of 17-year-old male pretrial detainee who committed suicide in N.Y. county jail did not show that jail officials were "subjectively aware" that he posed a suicide risk, so no federal civil rights claim could be pursued for failure to prevent the death. Plaintiff could, however, pursue state law wrongful death/negligence claim.

            A 17-year-old male pretrial detainee committed suicide while in a New York county jail. Rejecting a claim by his estate that jail officials violated the decedent's federal constitutional rights in failing to prevent the suicide, a New York trial court found no evidence that the defendants were "subjectively aware" that the detainee posed a substantial risk of suicide.

            The prisoner was a pre-trial detainee, not found guilty of any crime, and therefore could not be "punished." For this reason, the court noted, his treatment is analyzed under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment's prohibition against cruel and unusual punishments. But the court also ruled that the legal standard, as it related to any duty to prevent a suicide was essentially the same, and based on "deliberate indifference."

            Federal civil rights liability for a pre-trial detainee's suicide, the court stated, a plaintiff must show that the defendants were "deliberately indifferent" to a known substantial risk of the prisoner harming himself.

            "Mere knowledge that an inmate is behaving violently" or acting "in a freaky manner," the court commented, "is not sufficient to impute awareness of a substantial risk of suicide.

            At the same time, the court allowed the plaintiff to continue to pursue wrongful death claims based on negligence under state law.

Rivera v. County of Westchester, 729 N.Y.S.2d 836 (Sup. 2001).

Click here to read the text of the decision on the AELE website.

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County jail had no duty to obtain medical records of detainee from county hospital which would have revealed that he was a suicide risk and had previously attempted to kill himself. In the absence of an awareness of this risk, officer's failure to conduct required half-hour cell checks did not constitute deliberate indifference to the risk of the detainee committing suicide, but a state law negligence claim based on this can be pursued.

            The body of a pretrial detainee was discovered by a deputy in his cell at a Minnesota county jail in the early morning hours. The detainee had constructed a noose from torn bed sheets and hanged himself from the guard rail on the unoccupied top bunk. At the time, the detainee was eighteen years old and had been detained in the facility for approximately 45 days while awaiting trial on a theft charge.

            The decedent's mother filed a federal civil rights and state law negligence lawsuit against the county and jail officials. The lawsuit claimed that the county violated the decedent's rights by failing to ascertain, through screening, that he posed an increased risk of suicide, and that the failure to conduct required cell checks constituted deliberate indifference to the risk of suicide. Her complaint also asserted that the jail was negligent in failing to train and supervise employees in suicide prevention.

            A federal appeals court rejected the federal civil rights claims in their entirety.

            During the jail's routine intake procedures, a deputy had screened the decedent for medical and psychiatric problems. The screening form indicated that the detainee denied having suicidal inclinations or indicators, but complained of back and neck pain from a recent car injury. A jail nurse later conducted a detailed health assessment based on an interview with the detainee, and this assessment, again, did not indicate that he had an increased risk of suicide.

            The plaintiff relied heavily on the fact that two years earlier, medical personnel at a county hospital had documented that the detainee had attempted suicide and was at an increased risk for subsequent attempts, suffering from hypomania and bipolar personality disorder. The detainee did not advise jail personnel about the existence of these records, however, or authorize to obtain them, and jail personnel did not attempt to determine whether any county facility was in possession of any of his medical records.

            The appeals court found "no authority" for the proposition that prisons have a constitutional duty to "obtain personal medical records from outside the prison," nor "do we find persuasive plaintiff's argument that a county jail has an Eighth Amendment obligation to obtain medical records from any county hospital in which its inmates have received past medical treatment."

            While the detainee allegedly made gestures placing his hands around his neck, which the plaintiff argued were allusions to hanging himself, the court noted that there was no evidence that jail personnel interpreted the gestures as indicating this, but instead as indications that he was continuing to experience neck pain from his auto accident.

            Even if the detainee were visibly "glum," the court commented, "something more than an inmate's gloomy affect is required to trigger a duty to inquire whether he is feeling suicidal."

            As for an officer's alleged failure to conduct required cell checks approximately every half hour, the court noted that in the absence of any subjective awareness that prisoners in the cell block were at substantial risk of suicide, this could not constitute "deliberate indifference" to that risk of harm. In the fifteen years before the decedent's death, there was evidence that there was only one other successful suicide, and that among the 45,000 individuals confined by the facility in a year, there were only two suicide attempts.

            Under these circumstances, "however tragic" the decedent's death was, the officer's failure to conduct the cell checks was not a violation of the detainee's constitutional rights.  The court did, however, allow the plaintiff to continue to pursue her state law negligence claim against this officer, based on an argument that, had he conducted the required cell checks, he might have discovered the suicide attempt in time to save the detainee's life.

            Finally, the appeals court rejected the argument that the officer's actions were due to the county's failure to adequately train or supervise him. "If anything, the low incidence of inmate suicide" at the jail "suggests quite the opposite conclusion, for it implies" that the jail's policies and procedures are, on the whole, "quite successful in preventing inmate suicide."

Hott v. Hennepin County, #00-3595, 260 F.3d 901 (8th Cir. 2001)

Click here to read the text of the decision on the court's website. (.pdf format).

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Racial Discrimination

Prisoner's claim that he was restrained with 5-point restraint for 48 hours because of his race and prior complaints about expressions of racism -- and that he was shown a drawing of a person in a noose -- state a claim for denial of equal protection. Use of restraints for such an extended time period could also constitute excessive use of force.

            An African American prisoner in a Virginia prison was watching television in his cell when a correctional officer came to the cell door and informed him that he was to be put in 5- point restraints for kicking his cell door. The prisoner alleged that the officer also stated that the 5-point restraints would teach him "not to file complaints against his officers."

            The prisoner had previously filed a grievance against another officer claiming that when the prisoner asked the officer to notify medical personnel that he was suffering chest pains, the officer replied that it was not his job to call medical for "niggers." Following that, after the prisoner asked the officer for help and was allegedly refused, other officers found him suffering an emergency episode of chest pains.

            When he was placed in the restraints, he complained that they were too tight around his ankles, but was allegedly told to be quiet and the restraints were not adjusted. When the officers left the cell and closed the door, the prisoner claimed that he could see a paper hung on the door with a drawing of a hangman's noose on it and the words "coming soon."

            The prisoner also claimed that the officer he had filed the grievance against later visited the cell while he was in restraints and told him "We're going to hang you boy. That picture should give you something to think about." Another officer later removed the drawing.

            A federal civil rights claim by the prisoner claimed that he was kept in the 5-point restraints for 48 hours, restrained by cuffs on wrists and ankles to the bed posts and by a strap across his chest, and that he urinated on himself about a dozen times and did not have an opportunity to wash himself. He also claimed to have sustained scars on his ankles and numbness in his left foot. He was never charged with a disciplinary violation for conduct occurring before he was placed in the restraints, so he never had an opportunity to challenge his treatment during an official hearing.

            The trial court found that the prisoner's allegations were sufficient to state a claim for violation of equal protection of law, as well as violation of procedural due process, and a claim for excessive force in violation of the Eighth Amendment. It did dismiss, however, claims for supervisory liability, since there was no showing that supervisors had a policy or practice which encouraged subordinates to engage in race discrimination or use of excessive force.

            The court also rejected the prisoner's "retaliation" claim, finding that the prisoner had failed to show that his ability to exercise any specific constitutional right was "chilled" by the action of placing him in the restraint.

            The court rejected a motion for qualified immunity by defendants involved in placing the prisoner in the restraints and keeping him there. It cited prior case law questioning the use of 4-point restraints for an 8 hour period after a prison riot, and denying summary judgment in the absence of development of the facts regarding the justification for "such prolonged use of these restraints," Williams v. Benjamin, 77 F.3d 756 (4th Cir. 1996), and that the law on the subject of use of restraints was clearly established at the time of the incident in question.

Davis v. Lester, 156 F. Supp. 2d 588 (W.D. Va. 2001).

Click here to read the text of the decision on the AELE website.

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Sexual Assault

Two female former residents of juvenile detention facility awarded $200,000 against former employee for his alleged sexual assaults against them; federal appeals court reinstates civil rights claim against assailant's co-worker, a counselor who admitted that she had heard "numerous rumors" that he was having sex with female detainees.

            Two female former residents at a Pennsylvania juvenile detention facility claimed that they were sexually assaulted by a male facility employee while they were detained there. The employee, previously employed as a "youth development aide," was subsequently convicted of criminal charges arising out of these incidents, and the two former residents filed a federal civil rights lawsuit claiming violation of their Eighth Amendment rights.

            The lawsuit named as defendants the alleged assailant, three of his supervisors, and two of his co-workers. After a federal trial court granted summary judgment in favor of all the other defendants, the plaintiffs were awarded a $200,000 judgment against the employee they said assaulted them.

            A federal appeals court upheld summary judgment for the facility executive director and the unit director and unit manager for the unit in which the plaintiffs had been housed, as well as one of the co-workers, another youth development aide. It reinstated, however, claims against the other co-worker, a facility counselor.

            An Eighth Amendment claim against a prison official, the appeals court noted, must meet two requirements: 1) "the deprivation alleged must be, objectively, sufficiently serious;" and 2) the "prison official must have a sufficiently culpable state of mind," which in prison conditions cases is one of "deliberate indifference" to inmate health or safety.

            This deliberate indifference, the court pointed out, is a "subjective standard." In other words, the prison official/defendant must "actually have known or been aware of the excessive risk to inmate safety."

            While there was no dispute in this case that the sexual assaults against the plaintiffs were "sufficiently serious," the plaintiffs had not shown that most of the defendants had knowledge or even suspicion that the assailant was having sex with one or more of the female residents at the facility.

            The appeals court's reversal of a grant of summary judgment for the counselor, however, was based on evidence that she allegedly told one of the plaintiffs that she "kind of knew" that the assailant was "messing" with the female residents at the facility. This evidence, along with the counselor's admission in her deposition that she had heard "numerous rumors" that the assailant was having sex with female residents was sufficient to raise a genuine issue of fact as to whether she was aware of the significant risk that the assailant posed to the plaintiffs, but failed to adequately respond to this risk.

Beers-Capitol v. Whetzel, No. 00-2479, 256 F.3d 120 (3rd Cir. 2001).

Click here to read the text of the decision on the court's website.

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Strip Searches

County policy requiring strip search of all detainees sent to county jail violated clearly established law when it did not require reasonable suspicion that an individual possessed contraband or weapons.

            A federal appeals court has ruled that it was clearly established in July of 1995 that corrections officers in a local correctional facility could not perform a strip search including a non-intrusive examination of body cavities on an individual arraigned on misdemeanor charges unless the officers had reasonable suspicion that the individual possessed contraband or weapons.

            The case involved a man arrested for misdemeanor harassment charges. A pocket knife was taken out of the arrestee's pocket during the arrest process. He was later sent to a county correctional facility after failing to make bond set by a judge. Upon arriving there, an officer directed him to remove all his clothes and submit to a visual body cavity search, looking in his ears, his mouth, his hair and under his arms.

            The detainee was made to turn around, bend over, and spread his buttocks apart with his hands to facilitate a visual inspection of his rectum, and directed to hold up his external genitalia for inspection. He was again strip searched the next morning before he left to appear in court.

            The plaintiff's lawsuit challenged a county policy allegedly requiring correctional officers to strip search each newly admitted inmate.

            The court ruled that after its prior decisions in Wachtler v. County of Herkimer, 35 F.3d 77 (2nd Cir. 1994), Walsh v. Franco, 849 F.2d 66 (1988), and Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986), "no law enforcement officer reasonably could have believed that it was permissible to perform such a search absent individualized reasonable suspicion."

Shain v. Ellison, #00-7061, 2001 U.S. App. LEXIS 22525 (2nd Cir.).

Click here to read the text of the decision on the court's website.

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NOTED IN BRIEF

Attorneys' Fees

            State was entitled to an award of attorneys' fees against attorney for plaintiff prisoner for costs incurred in pursuing its defense of an appeal of the prisoner's second lawsuit over same personal injury claim. Second lawsuit was essentially the same as the first cause of action which was dismissed, so there was no factual basis to justify the appeal. Rodriguez v. Department of Correction, No. 26505, 29 P.3d 401 (Idaho 2001). [N/R]

False Imprisonment

            Arrestee kept in county jail for twenty-seven days while waiting for a court-ordered psychological evaluation which was never performed could not recover damages against the county for false imprisonment under Florida state law. Summary judgment was denied, however, on federal constitutional due process claim. Card v. Miami-Dade County, Florida, 147 F. Supp. 2d 1334 (S.D. Fla. 2001).

Medical Care

            Prisoner's chronic back injury was sufficiently serious to support a claim for inadequate medical care, but he failed to show that prison officials were "deliberately indifferent" to his medical needs. Dobbin v. Artuz, 143 F. Supp. 2d 292 (S.D.N.Y. 2001). [N/R]

            Prisoner seeking to show that his medical care was inadequate who wanted to introduce expert witness testimony had the burden of proving the qualifications, training and experience of the witnesses were sufficient to admit them as experts who could offer opinion testimony. Court would not, however, bar such witnesses without first hearing evidence on those qualifications. Hucker v. City of Beaumont, 147 F. Supp. 2d 565 (E.D. Tex. 2001). [N/R]

Prison Litigation Reform Act: Exhaustion of Remedies

            Prisoner's claim that he was assaulted by officers in retaliation for his participation in a prison disturbance was subject to the exhaustion of remedies provisions of the Prison Litigation Reform Act, and was properly dismissed when he failed to pursue administrative grievance. The purpose of this requirement was not only to block frivolous lawsuits, but also to permit prison officials to attempt to first address complaints internally. Smith v. Zachary, #99-4084, 255 F.3d 446 (7th Cir. 2001). [N/R]

            Prisoner had to exhaust available administrative grievances before pursuing a federal civil rights lawsuit over prison nurse's alleged deliberate indifference to his medical needs. "Substantial" compliance with the exhaustion of remedies requirement was not enough. Wright v. Hollingsworth, No. 99-40063, 260 F.3d 357 (5th Cir. 2001). [N/R]

Prisoner Restraint

            A prisoner's four-hour immobilization in "four-point" restraints, by itself, did not constitute an atypical and significant hardship sufficient to support a federal civil rights claim. Laws v. Cleaver, 140 F. Supp. 2d 145 (D. Conn. 2001). [N/R]

Prisoner Suicide

            Jail officials were not deliberately indifferent to the risk of prisoner suicide simply because they failed to remove a coat hook from jail cells after a prior suicide at the jail took place by a prisoner hanging himself from a protruding light fixture. Pretrial detainee could not recover damages for brain injuries he received during his suicide attempt. Hofer v. City of Auburn, Alabama, 155 F. Supp. 2d 1308 (M.D. Ala. 2001). [N/R]

Segregation: Punitive

            Pretrial detainee allegedly placed in segregation for two and a half years as punishment without procedural due process could pursue constitutional claim. At the time of segregation, in 1995, the law clearly established that a pretrial detainee could only be punished for misconduct after being given some sort of procedural protection, so that defendant officials were not entitled to qualified immunity. Love v. Sheahan, 156 F. Supp. 2d 749 (N.D. Ill. 2001). [N/R]

Cross References

U.S. Supreme Court Actions -- Private Prisons

Damages: Nominal -- Prisoner Assault: By Officers

Disability Discrimination -- Damages: Punitive

Prison Litigation Reform Act: Exhaustion of Remedies -- Medical Care

Race Discrimination -- Prisoner Restraint

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