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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 May (web edit.)

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Featured Cases – with Links
Access to Courts/Legal Info
Disability Discrimination: Prisoners (2 cases)
Medical Care
Prison Litigation Reform Act: Exhaustion of Remedies (2 cases)
Prisoner Assault: By Officers
Prisoner Discipline (2 cases)
Religion (2 cases)
Sexual Harassment
Strip Search: Prisoners

Noted in Brief -- With Some Links

Defenses: Qualified Immunity
Disability Discrimination: Prisoners
Employment Issues (2 cases)
False Imprisonment (2 cases)
Medical Care (3 cases)
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Restraint
Procedural: Discovery
Procedural: Summary Judgment



Access to Courts/Legal Info

Civil rights lawsuit filed by prisoner acting as his own lawyer should be regarded as received, for purposes of the statute of limitations, when it was delivered by him to prison officials rather than when it was finally received by the court; the statute of limitations might also be tolled, appeals court finds, while prisoner waited to received court documents that he needed to prepare his complaint, so that he would be in the same position as a nonincarcerated litigant or one with a lawyer.

     A Connecticut prisoner, while incarcerated in a federal prison, filed a state court motion for the production of his arrest warrant and other information regarding state criminal charges which had been dismissed for lack of sufficient evidence. When he received these documents and reviewed them, he allegedly discovered a violation of his civil rights and filed a federal civil rights lawsuit in U.S. District court, acting as his own lawyer (pro se).

     The trial court dismissed the complaint as barred by the statute of limitations.

     Overturning that decision, a federal appeals court held that the trial court improperly found that the complaint was filed on the date it was received by the court clerk, rather than the date, ten days earlier, when he delivered his complaint to prison officials for the purpose of having it sent to the court.

     Additionally, the appeals court stated that there was an open question whether the principles set forth in Houston v. Lack, 487 U.S. 266 (1988) ( pro se prisoners' notices of appeal are "filed" at the moment of delivery to prison authorities for forwarding to the district court) should also apply to toll (extend) the statute of limitations between the date that the prisoner requested the state court documents and his receipt of those papers. Applying those principles, the court said, would have the effect of putting the prisoner, acting as his own lawyer, "in the same position as a nonincarcerated or counseled litigant who is able personally to travel to the courthouse, or to send a legal representative to do so, and hence to receive the requested documents forthwith." If this were the case, the prisoner's complaint might not be time-barred.

     The appeals court remanded for further proceedings to determine whether Houston  applies. If it does, the court noted, the period of time that the state court clerk took to process the request might not be included in the period of time during which the statute of limitations was extended, since such processing time "would apply equally to a nonprisoner who sought such documents."

     Walker v. Jastremski, #97-2721, 274 F.3d 652 (2nd Cir. 2001).

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

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Disability Discrimination: Prisoners

Federal appeals court rules that Congress did not properly abrogate states' Eleventh Amendment immunity from suit in enacting disability discrimination statutes concerning public services. Eleventh Amendment immunity barred mentally ill prisoners' class action lawsuit against Louisiana state correctional department for purported violations of the Americans With Disabilities Act (ADA) and Rehabilitation Act.

     Mentally ill prisoners in Louisiana correctional facilities filed a class action lawsuit in federal court against the state correctional department, asserting alleged violations of Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq., barring disability discrimination in the provision of public services.

     A federal appeals court has ruled that the trial court in the case improperly denied the state agency's motion for dismissal of the lawsuit on the grounds of Eleventh Amendment immunity. The appeals court held that the two statutes in question did not validly abrogate the Eleventh Amendment sovereign immunity granted to states and state agencies.

     The court noted that Congress can abrogate state sovereign immunity when it "both unequivocally intends to do so," and when it acts "pursuant to a valid grant of constitutional authority." In this instance, the court reasoned, states "may only be sued" under the ADA and Rehabilitation Act to the extent that those statutes, "inasmuch as they are directed at unconstitutional discrimination by the States, are appropriate exercises" of the power Congress has under Sec. 5 of the Fourteenth Amendment to enforce equal protection of law.

     The court found that Congress, in enacting the ADA, made a determination of what constituted discrimination against the disabled which "differs from discrimination in the constitutional sense." Looking at the legislative history of the statute, the court also stated that "most of the examples of arguably unconstitutional governmental discrimination against the disabled involved local, not state government." Additionally, many of the legislative findings about state policies "describe facially neutral state policies that are unlikely to represent unconstitutional discrimination." To prove a violation of the equal protection clause of the Fourteenth Amendment, the court pointed out, a plaintiff is required to show that a "facially neutral state law or practice that has a disparate impact on a class is intentionally discriminatory."

     The focus of Congress, the court asserted, was on "examples of facially neutral policies that allegedly have a discriminatory impact on the disabled," and "apathetic attitudes and refusals to make accommodations do not usually violate the Fourteenth Amendment."

     The appeals court was also concerned about whether the "remedial regime" established by Congress in the statutes has "congruence and proportionality" to the alleged problem found. Title II of the ADA, the court found, "embodies more than merely a prohibition on unconstitutional discrimination against the disabled," but rather creates "an affirmative accommodation obligation on the part of public entities that far exceeds the constitutional boundaries." The Rehabilitation Act, the court also stated, has been interpreted as "virtually identical to" Title II of the ADA.

     "Since the accommodation obligation imposed by Title II and Sec. 504 of the Rehabilitation Act far exceeds that imposed by the Constitution, we cannot conclude that they are proportional and congruent to the legislative findings of unconstitutional discrimination against the disabled by the States."

     The appeals court ordered the dismissal of both the ADA and Rehabilitation Act claims.

     Reickenbacker v. Foster, #00-31121, 274 F.3d 974 (5th Cir. 2001).

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

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Hearing-impaired detainee could pursue his disability discrimination complaint against warden of pretrial detainment facility and county court system for failing to provide an interpreter and other services to accommodate his disability. County court system could not assert Eleventh Amendment immunity during its ongoing merger with the state system.

     A deaf person who communicates primarily through American Sign Language (ASL) was arrested on a bench warrant for his failure to attend an intoxicated driver program mandated by a court in another state. He was then taken to a maximum security, pretrial detention facility in New Jersey. Upon arrival, a correctional employee who attempted to interview him was unable to communicate with him. He requested an ASL interpreter and use of a TDD (telecommunications device for the deaf), and also asked that his hearing roommate be contacted.

     In a lawsuit he subsequently brought for disability discrimination, the detainee claims that these requests were all denied, and that he was not provided with any initial intake information at the facility, such as the reason for his detention or the rules and regulations of the facility. He further claims that he was unable to communicate with medical personnel and was classified as a suicide risk as a result. Additionally, despite the fact that he had worked for the Postal Service for 13 years and had lived at the same address for 3 years, he was described by a counselor classifying him as an "unemployed vagrant" because of the inability to communicate with him, raising his custody classification from minimum to medium.

     He was eventually furnished with a TDD but only after a delay, and while the facility later provided him with access to a television set with closed captioning, the prisoner later contended that he did not utilize it because he did not know that closed captioning was available on it. The lawsuit also complained that the county court system did not provide an ASL interpreter for one of his extradition hearings, resulting in a 6 day delay for rescheduling.

     Overturning summary judgment for the defendants in the lawsuit, the warden of the pretrial detention facility and the county court system, a federal appeals court found that county was not entitled to assert an Eleventh Amendment defense. The Eleventh Amendment applies to states and not to counties, and the county court system, which was then in the process of merging with the state system, was still, at that point in time, a county agency.

     The court also found that the disability discrimination provisions of the Americans With Disabilities Act (ADA) applied to both the detention facility and the extradition hearing, which was a "program" within the definition of the ADA and Rehabilitation Act. The court found that there were genuine issues of fact as to whether the defendants attempted to accommodate the plaintiff's disability adequately by providing pencil and paper, for instance, during detention facility intake, or whether a sign language interpreter was required, in light of evidence that the plaintiff was not proficient in either lip-reading or written language.

Chisolm v. McManimon, #00-1865, 275 F.3d 315 (3d Cir. 2001).

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

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Medical Care

The failure of a physician's assistant to x-ray a prisoner's jaw, which would have revealed that it was broken, did not constitute deliberate indifference to a serious medical need, but merely a disagreement between the prisoner and medical personnel as to what forms of diagnostic treatment to utilize.

     A Pennsylvania prisoner was punched in the jaw by another inmate. Soon after that, he was seen by medical personnel for treatment for the pain he was experiencing in his jaw. A physician's assistant examined the prisoner, gave him cotton to bite on to stop the bleeding and gave him some pain medication. He also allegedly told the plaintiff his jaw was "alright" and that it would take time to heal.

     The prisoner allegedly went to see the physician's assistant again on four other occasions, continuing to complain of pain, and asking that his jaw be x-rayed because he thought it was broken. The physician's assistant allegedly merely administered additional pain medication and told him repeatedly that the jaw would take time to heal.

     When the prisoner was transferred to another facility seven days after the injury, the medical department there x-rayed his jaw and found that it was broken. He was subsequently sent to an outside hospital where his jaw was wired shut. He sued the warden at the first facility and the physician's assistant for alleged deliberate indifference to his serious medical needs.

      Rejecting these claims, a federal trial court noted that "a prisoner's claim of negligent diagnosis or treatment do not rise to the level of deliberate indifference." The failure of the physician's assistant to diagnose the prisoner's broken jaw or to order an x-ray was not deliberate indifference, the court found, but rather a disagreement between the plaintiff and the physician's assistant as to the appropriate "medical diagnosis and treatment."

     The court noted that the prisoner did not claim that the physician's assistant recognized the plaintiff's need for an x-ray and then refused to order it. The court also rejected supervisory liability for the warden, about whom the court noted the plaintiff had not made any factual allegations. Nothing showed that the warden knew of and disregarded an excessive risk to the plaintiff's safety, or was personally involved in any way.

     Lindsay v. Dunleavy, 177 F. Supp. 2d 398 (E.D. Pa. 2001).

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

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Prison Litigation Reform Act: Exhaustion of Remedies

A prisoner's federal civil rights claim does not accrue until he has exhausted available administrative remedies. Prisoner must specifically plead such exhaustion in their complaint. Exhaustion requirement applies whether the claim is pursued in federal or state court.

     An Ohio prisoner filed a federal civil rights lawsuit in state court, asserting various claims, including that prison officials violated his constitutional rights by requiring him to disclose certain personal information, such as his name, prison number, and date of birth in order to access telephone services.

     Upholding the dismissal of the lawsuit for failure to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997(e), an Ohio intermediate appeals court found that this Section of the statute was a "condition precedent" to a federal civil rights claim, "whether the claim is brought in federal court or state court."

     The court also stated that exhaustion of remedies must take place before the prisoner's cause of action "can accrue," and that the exhaustion of remedies must be specifically pleaded in the complaint, with failure to do so rendering the lawsuit subject to dismissal.

     Martin v. Ohio Dept. of Rehabilitation and Correction, No. 00CA37, 749 N.E.2d 787 (Ohio App. 2001).

»Click here to read the text of the decision on the web. [File is in Microsoft Word format and requires Microsoft Word or Word Viewer to properly read].

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Since the passage of the Prison Litigation Reform Act, courts may no longer examine available grievance procedures to determine whether they would serve the inmate's intended purpose. State of Florida has adopted a rule giving prisoners a right to file a grievance regarding reprisals against inmates who have filed complaints, and prisoner could not pursue a lawsuit without first pursuing such a grievance.

     A Florida prisoner filed a complaint in state court alleging that correctional officers retaliated against him for filing a grievance and that their actions violated his First Amendment right to petition the government for redress of grievances. The trial court dismissed the complaint because the prisoner had not exhausted available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a).

     Addressing a prisoner's appeal of this dismissal, an intermediate Florida appeals court rejected the prisoner's claim that he brought his action under section 768.28(9)(a), and that "nothing in that statute required him to exhaust administrative remedies before filing suit." That statute, the court found, does not provide for a cause of action, but simply states the requirements for governmental waiver of sovereign immunity.

     The true basis for the prisoner's claim, the court found, was the federal civil rights statute, 42 U.S.C. Sec. 1983, for which exhaustion of remedies is definitely required. Since the passage of the Prison Litigation Reform Act, the court noted, courts may no longer examine available grievance procedures to "determine whether they would serve the inmate's intended purpose."

     In Florida, the court noted, the Florida Administrative Code has a procedure in place through which the prisoner "may grieve his claim." The Department of Corrections adopted Rule 33-103.001(3), which gives inmates the right to file a grievance regarding reprisals against inmates who have filed complaints and rule 33-103.017 specifically prohibits a reprisal against an inmate for submitting a grievance. (Link is to the entirety of Department of Corrections Rules in .pdf format).

     Because the plaintiff prisoner had not pursued these available remedies, his lawsuit was properly dismissed.

     Hollingsworth v. Brown, No. 1D00-3126, 788 So. 2d 1078 (Fla. App. 2001).

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

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Prisoner Assault: By Officers

Jury verdict in favor of officers upheld in prisoner's lawsuit claiming that they beat him while he was being moved during a transfer made necessary by a prison riot that occurred five days before; trial court did not abuse its discretion by excluding from evidence in the case the officers' suspension following the riots.

     An inmate in a prison in Illinois claimed that a number of correctional officers beat him while transporting him between housing units. The prisoner was moved after other prisoners had rioted in the facility five days earlier, requiring that a number of prisoners be relocated so that prison authorities could repair the damage to several cell blocks. Shortly after the riot, two of the officers were both suspended, for reasons undisclosed in the record of the prisoner's lawsuit.

     A jury in the case returned a verdict in favor of the defendant officers. The trial court had refused to allow the plaintiff prisoner to introduce evidence of the two officers' suspension. The prisoner argued that this would demonstrate their respective motives to assault him, but the trial judge refused to allow the evidence without a proper showing of its relevancy.

     The prisoner argued on appeal that he was entitled to a new trial in his suit against the officers because the trial judge abused his discretion by barring the evidence. A federal appeals court has rejected that argument.

     The appeals court noted that Federal Rule of Evidence 404(b) prohibits the use of "other crimes, wrongs, or acts" to "prove the character of a person in order to show action in conformity therewith," but permits the use of evidence of bad acts if they are offered for other purposes, such as motive, intent, plan or opportunity.

     In this case, the plaintiff's attorney admitted that he did not know why the officers were suspended and whether anything about their suspension involved his client. "Merely because the officers were disciplined fails to shed any light upon the reasons for the officers' suspensions, and it certainly does not compel one to conclude that the officers were suspended because they retaliated against inmates after the prison riot, much less this particular inmate.

     Additionally, both officers submitted affidavits to the court that their suspensions were unrelated to anything that happened to the plaintiff prisoner. The plaintiff claimed that his failure to provide copies of the disciplinary reports to the trial court was the result of the defendants' refusal to produce them, but the appeals court found that the record showed that the defendants informed the plaintiff that they did not possess the reports, and the plaintiff did not seek production of them from the Bureau of Prisons, which did have them.

     "In the absence of a scintilla of evidence to demonstrate that the suspensions" of the officers "were relevant to establish their motive for allegedly beating the plaintiff, we conclude that the trial judge did not abuse his discretion in excluding the evidence of the suspension."

     Okal v. Verfuth, #99-3277, 275 F.3d 606 (7th Cir. 2001).

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

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Prisoner Discipline

Prisoner who was placed in punitive segregation in special housing unit as punishment for disciplinary offenses was entitled to procedural due process at disciplinary hearings when he had spent 1,300 days in special housing unit confinement, but the record showed that he received adequate due process and that the hearing officer was sufficiently fair and impartial, despite being the supervisor of the security staff who responded to the incident at issue.

     Following a fight in a prison yard, a prisoner was served with an inmate misbehavior report alleging that two prison officials saw him "drop a weapon and run off into the crowd" during the fight. A disciplinary hearing was subsequently held during which the prisoner was found guilty of violating a prison rule prohibiting the possession of weapons. The prisoner received a penalty of twelve months confinement to a special housing unit and a concurrent loss of privileges. He was subsequently disciplined for two other charges and filed a lawsuit claiming that he was denied due process in the hearings.

    He has now spent approximately three and a half years in the special housing unit and has about one and half years remaining in his term of confinement. The federal trial court ruled that the prisoner's punishment, which has resulted in him already spending 1,300 days in special housing unit confinement easily showed that he was subjected to "atypical and significant hardship in relation to the ordinary incidents of prison life," as required by Sandin v. Conner, 515 U.S. 472 (1995) and Sims v. Artuz, 230 F.3d 14 (2d Cir. 2000) to state a claim of entitlement to procedural due process.

     The court found, however, that the prisoner was provided with sufficient due process at the hearings held. He received notice of the charges against him, and was not prevented from submitting evidence or calling witnesses. He testified on his own behalf, called an inmate witness to testify, and persuaded the presiding officer in one instance to view a video tape of the events that were the subject of the hearing.

     The court also rejected the argument that the hearing officer who conducted two of the hearings was not fair and impartial, but biased against him. The fact that the hearing officer was the supervisor of the security staff who responded to one of the incidents did not alter the result, when he neither witnessed the incident nor investigated it.

     Espinal v. Goord, 180 F. Supp. 2d 532 (S.D.N.Y. 2002).

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

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Post-deprivation disciplinary hearing after prisoner was put into segregation based on his alleged involvement in bringing drugs into the prison was sufficient to satisfy due process requirements.

     An Illinois prisoner was placed in segregation after prison officials received information that he was involved in having his visitors bring drugs into the facility. A disciplinary hearing was subsequently held, during which it was found that the prisoner had violated prison regulations and he was given ninety days of segregation as well as loss of good time credit. During the hearing, the prisoner refused to take a polygraph test in response to the chairman's request.

     A federal appeals court rejected the prisoner's challenge to this discipline, ruling that a post-deprivation disciplinary hearing was sufficient under the circumstances to satisfy due process requirements. The court found that temporary confinement pursuant to 20 Ill. Admin. Code Sec. 504.20 allows for such temporary confinement pending a disciplinary hearing and constitutes administrative, not punitive detention.

     The appeals court also upheld the dismissal of claims about the prisoner's conditions of confinement in segregation, which named as defendants a number of defendants for whom the record "contains no evidence that these defendants acted with 'deliberate indifference' toward or even knew of the conditions of the cell."

     The court also found that the alleged action of the prison disciplinary committee in punishing the prisoner for refusing to participate at all in a polygraph examination, without more, did not result in a violation of his Fifth Amendment right against self-incrimination, since the prisoner could still assert that right.

     Riggins v. Walter, No. 93-3124, 279 F.3d 422 (7th Cir. 2001). [This case was originally decided by the court in 1995 without published opinion. On Nov. 30, 2001, the court ordered that the decision be published].

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

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Appeals court orders reconsideration of whether federal prisons violate the constitutional rights of Catholic prisoners through a rule denying them the use of wine in taking communion.

     Practicing Catholic prisoners in federal prisons filed a lawsuit challenging a prison rule preventing them from consuming small amounts of wine as part of the Catholic sacrament known as Communion. In the past, prison officials have allowed inmates to consume wine under supervision during Communion. Under the new rule, however, only the supervising chaplain is permitted to consume the wine. The prisoners claim that this prohibition violates their constitutional rights under the free exercise clause of the First Amendment.

     A prison regulation that impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). In this case, the District Court granted summary judgment for the prison officials on the ground that consuming wine during Communion is not an essential aspect of appellants' religious practice, one "which the believer may not violate at peril of his soul."

     Overturning this result and ordering further consideration of the prisoners' claims, a federal appeals court found that the trial court erred in holding that, "to qualify for protection under the First Amendment, a religious practice must be mandated by the prisoners' religion. This holding finds no support in our case law. The District Court also failed to perform the balancing analysis required by Turner and O'Lone."

     Federal law, the appeals court acknowledged, "has long prohibited prisoners from consuming alcohol." See 18 U.S.C. s 1791 (2000) (setting forth punishments for possessing contraband, including alcohol, in prison); 28 C.F.R. s 541.13 (2000) (making possession and use of alcohol in federal prisons sanctionable). Until recently, however, prison officials have permitted the chaplain to administer small amounts of wine to Catholic inmates during Communion, with precautions.

     In 1997, however, the United States Department of Justice, Bureau of Prisons ("BOP") issued Program Statement Number 5360.07, relating to "Religious Beliefs and Practices." BOP Program Statement No. 5360.07 (Aug. 25, 1997). [Link is to the current version of the Program Statement, as issued 5/25/2001, which does not alter the following statement]. Paragraph 20 (formerly Paragraph 19) deals with sacramental wine. It provides in relevant part:

     "Sacramental wine is necessary for the worship of some faith groups, i.e., the requirements of the ritual cannot be satisfied without the use of wine. In those cases only, the staff or contract chaplain may consume small amounts of wine for performance of the ritual."

     There is no provision in the rule allowing prisoners to consume wine under any circumstances. Since the policy was implemented in mid-1998, the plaintiffs have been prevented from consuming wine during Communion. Instead, the prison chaplain consumes the wine himself, while the inmates consume only the bread.

     "The fact that a regulation affects a mandatory religious practice" the appeals court stated, "is, obviously, relevant evidence of an infringement on the free exercise of religion. But that is far from the only circumstance in which a rule impinges on free exercise." A plaintiff seeking to show that a government rule impinges on the free exercise of religion, need not first show that the rule is directed at a practice deemed by the religion's believer's to be "mandatory," the court reasoned, since that "is not the law."

     "Nor would such a requirement make sense. Under the District Court's formulation, religions that lack the concepts of commandments necessary for the salvation of the soul would find themselves outside the scope of First Amendment protection altogether. Nothing in the free exercise clause suggests that it only protects religions that incorporate mandatory tenets. Many cherished religious practices are performed devoutly by adherents who nonetheless do not or cannot insist that those practices are mandated."

     The appeals court remanded for further proceedings to determine whether the prisoners "have met the threshold requirement of showing a substantial burden on the free exercise of their religion." The court found that the record included evidence that the practice of taking wine with Communion is "important in terms of appellants' religious beliefs" and that they "have regularly attended Mass and taken wine at Communion throughout their incarceration and for years prior to their incarceration," suggesting that "taking wine with Communion is not an unimportant part of appellants' religious practice."

     The trial court should also determine, the appeals court stated, "whether the BOP regulation is reasonably related to legitimate penological interests," along with the impact on the prison and on other inmates of allowing the Catholic prisoners to consume wine along with the chaplain during Communion.

     Levitan v. Ashcroft, No. 00-5346, 281 F.3d 1313 (D.C. Cir. 2002).

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

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"Liberal Catholic Church" member stated possible claim for violation of the right to equal protection based on allegation that prison chaplain required him to recertify his religious request for a vegetarian diet more frequently than African-American prisoners with similar requests were required to.

     A D.C. prisoner is a member of the "Liberal Catholic Church." He adopted a vegetarian diet for health reasons 38 years ago and says that he maintains it now for religious reasons, "because he believes it is ecologically sound, and because he believes that meat production is cruel to animals." An ordained priest of his church states hat the church "encourages but does not require" a vegetarian diet.

     In the D.C. facility where the prisoner is now incarcerated, the food service company's contract requires it to provide a lacto-ovo-vegetarian diet to prisoners who were authorized by the chaplain to receive a religious diet. The prisoner sued the prison, the food service, and the prison chaplain, claiming a violation of his First and Fifth Amendment rights by restricting his access to vegetarian meals, as well as a claim under the Eighth Amendment for inadequate nutrition.

     The trial court denied the prison chaplain's motion for summary judgment on the basis of qualified immunity on the prisoner's claim that the chaplain treated him, as a Caucasian, differently than African-American prisoners. The plaintiff claimed that the chaplain required him to recertify his religious request for a vegetarian diet more often than African-American prisoners were required to do so. This, the court found, could state a viable claim for a violation of the right to equal protection.

     The court also found that there were genuine issues of material fact as to whether the food served on several occasions was lacking in adequate nutrition and/or prepared under unsanitary conditions, thus violating the Eighth Amendment or constituting negligence.

     Caldwell v. Caesar, 150 F. Supp. 2d 50 (D.C. 2001).

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

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California Supreme Court strikes down state's "Son of Sam" law as violating the First Amendment. New York jury, under revised "Son of Sam" law, awards $100 million against convicted killer of police officer, stopping payment of $237,500 civil rights judgment award to prisoner in prison discipline case; those funds may go to slain officer's family.

     A number of states have adopted "Son of Sam" laws, designed to prevent criminals from profiting from their offenses by barring payment to them for the sale of the story of their crimes in book or film form. The original statute was found to be overinclusive by the U.S. Supreme Court in Simon & Schuster v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991), and was subsequently modified by the New York state legislature.

     The California Supreme Court has now struck down that state's "Son of Sam" law, finding that it violated the free speech provisions of the state and federal constitutions, using the reasoning set forth in the Simon & Schuster case:

      The court found that California's statute, "similarly imposes a content-based financial penalty on protected speech" yet fails to satisfy strict scrutiny "because it, too, is overinclusive. Section 2225(b)(1) contains the fundamental defect identified in Simon & Schuster; it reaches beyond a criminal's profits from the crime or its exploitation to reach all income from the criminal's speech or expression on any theme or subject, if the story of the crime is included."

     This, the court stated, "disturbs or discourages protected speech to a degree substantially beyond that necessary to serve the state's compelling interest in compensating crime victims from the fruits of the crime." The case involved an attempt by Frank Sinatra Jr. to prevent his 1963 kidnappers from making money by selling the story of the crime.

     Keenan v. Superior Court of Los Angeles County, No. S080284, 27 Cal. 4th 413, 40 P.3d 718 (2002)

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

     The New York "Son of Sam" law was, following the Simon & Schuster decision, expanded to reach all funds of a convicted person from any source. Included in changes approved in June of 2001 were inheritances, lottery winnings and judgments in civil lawsuits. Under that statute, a New York jury recently awarded $100 million in punitive damages, and $361,000 in compensatory damages (including $11,000 in funeral expenses) to the parents and estate of a New York police officer killed by a man who walked up and shot him in the head while he was guarding the home of a witness in a drug case. Byrne v. McClary, No. 12614/01 (Nassau Co., N.Y. Sup. Ct.), reported in The National Law Journal, p. A4, March 4, 2002.

     The convicted killer of officer Byrne, now serving a sentence of 25 years to life, had earlier been awarded a $237,500 judgment against the state of New York for alleged due process violations based on the contention that he was not given adequate notice as to why he was placed in administrative segregation. That verdict was upheld on appeal. McClary v. Kelly, 237 F.3d 185 (2nd Cir. 2001).

     As a result of the $100 million+ jury award against McClary under the "Son of Sam" law, the payment of the $237,500 judgment has been frozen and may go to the officer's family. In the meantime, McClary is pursuing a challenge to the revised New York "Son of Sam" law in New York State Crime Victims Board v. McClary, No. 5138-01 (Albany Co. N.Y. Sup. Ct.).

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Sexual Harassment

Male prisoner's claim that female correctional employee asked him to have sex with her and to masturbate in front of her and other female staff members, even if true, did not suffice to state a claim for sexual harassment in violation of the Eighth Amendment. Employee's action of calling him a "stoolie" in front of other inmates after he filed a grievance over the alleged harassment was also not a basis for recovery. Prisoner did state a claim for retaliatory transfer following his grievance filing.

     A male prisoner in a New York correctional facility filed a federal civil rights lawsuit asserting, among other claims, that a female prison hospital clerk sexually harassed him and later called him a "stoolie" in front of other inmates.

     The hospital clerk, along with three other female employees, named as "Jane Doe" defendants in the lawsuit, formed a mental health group, and the prisoner attended group sessions. He claims that during one of the sessions all four women verbally and sexually harassed him because of his race. In particular, he claims that the hospital clerk repeatedly demanded that he have sex with her and that he masturbate in front of her and the other women.

     After he filed an institutional grievance about this, the hospital clerk, after being interviewed in connection with the grievance, allegedly "yelled out loud" that he was a "stoolie" while other inmates, working nearby could hear her. Other defendants allegedly called him a "rat bastard" and a "bugged-out mother f-----" in the presence of other inmates, and then allegedly confined him to the mental health unit at the facility, subsequently causing his transfer to a different correctional facility's mental health unit in retaliation for filing grievances and "seeking adequate medical care" for his stomach problems.

     A federal appeals court ruled that the allegations concerning the transfer stated a claim for retaliation. But it upheld the dismissal of the sexual harassment claim.

     A retaliatory motive for the transfer seemed possible based on the short time that transpired between the plaintiff's filing of a grievance and the transfer taking place. The transfer, the court stated, was a sufficiently adverse action to support a claim for retaliation, but that was not true of the hospital clerk's alleged statement calling him a "stoolie."

     The appeals court found that alleged sexual advances by the hospital clerk were insufficient to state a claim for sexual harassment in violation of the Eighth Amendment. In a prior case, the court noted, Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997), it had dismissed as inadequate a prisoner's claim that a female corrections officer made a possible pass at him, squeezed his hand, touched his penis, called him a "sexy black devil," press her breasts against his chest, and pushed her vagina against his penis. In the immediate case, the court found, the prisoner's allegations "do not even rise to the level of those made by the plaintiff in Boddie."

     Morales v. Mackalm, No. 00-0113, 278 F.3d 126 (2nd Cir. 2002).

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Strip Search: Prisoners

Sexual offenders' claim that they were subjected to visual body cavity searches as retaliation for laughing at officers and harassed for their status as sex offenders did not warrant injunctive relief. Prisoners' claim for damages was barred by a provision of the Prison Litigation Reform Act prohibiting claims for mental or emotional injury without a prior showing of physical injury.

     A number of sexual offenders at Massachusetts correctional facilities filed a federal civil rights lawsuit claiming that they were subjected to various harassment by correctional officers because of the nature of their offenses.

     A major claim in the complaint involves the alleged carrying out of visual body cavity searches on one occasion after an alarm sounded. The prisoners claimed that the officers carried out a visual body cavity search of the 60 prisoners present in retaliation for the prisoners laughing at the officers, and that civilian canteen workers were able to view the search.

     The plaintiffs also claimed that they were subjected to harassment because of the nature of their crimes. Conduct allegedly engaged in by correctional officers included the posting of a sign in two office windows on different floors stating that "all sex offenders should be castrated," calling one of the plaintiffs a "homo," and telling another of them that if "you want to suck dick, do it in the library." A general statement in the complaint asserted that as a result of the sign which was put up in the windows of the officers' bubble, "plaintiffs were subject to assault by other prisoners because of the nature of their crimes."

     The trial court declined to enter injunctive relief against the visual body cavity searches. The court noted that by the plaintiffs' own admission "these acts are not ongoing," and that no further such search had been conducted in two years since the incident. "The court will not issue a general order that would make it more difficult for the warden legitimately to look for contraband in cases where that action is warranted."

     The court ruled that the defendants were entitled to qualified immunity from damages on the visual body cavity search claim. Since an objectively reasonable reason to conduct such searches --the triggering of the alarm--existed at the time, regardless of any dispute about whether the motivation for the search was actually to find contraband, or to enforce discipline, or some other purpose. When an objectively reasonable reason to conduct the search existed, the decision to do so "does not violate clearly established statutory or constitutional rights of which a reasonable person would have knowledge."

     All of the claims for damages concerning harassment of the plaintiffs on the basis of their status as sexual offenders were dismissed by court as barred by the Prison Litigation Reform Act's provision, 42 U.S.C. Sec. 1997e(e) prohibiting federal civil rights claims for mental or emotional injuries to prisoners "without a prior showing of physical injury."

     Seaver v. Manduco, 178 F. Supp. 2d 30 (D. Mass. 2002).

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Noted In Brief

Defenses: Qualified Immunity

     Conflicting expert witness opinions concerning the treatment a prison physician rendered to an inmate suffering from AIDS and hepatitis C created a material question of fact as to whether the doctor acted with deliberate indifference, so that appeals court did not have jurisdiction to consider doctor's appeal of trial court's denial of qualified immunity when the doctor only sought to challenge the finding that an issue of material fact existed. Moore v. Duffy, No. 00-2222, 255 F.3d 543 (8th Cir. 2001).

Disability Discrimination: Prisoners

     Prison superintendent and deputy superintendent did not act with deliberate indifference to disabled (wheelchair confined) inmate's serious medical needs when the deputy approved recommendations for his transfer to another facility where his medical concerns could be better addressed and superintendent promptly responded to inmate's requests by asking medical personnel to make an assessment. Navedo v. Maloney, 172 F. Supp. 2d 276 (D. Mass. 2001).

Employment Issues

    Correctional department internal affairs investigator was entitled to First Amendment protection for his report concerning a correctional officer's alleged wrongdoing and use of excessive force during a prison riot, Factual issues existed as to whether he was subsequently constructively discharged in retaliation for his report and his refusal to alter it, or whether he merely resigned because he was unhappy with his job. Bailor v. Taylor, 170 F.Supp. 2d 466 (D. Del. 2001).

     D.C. Department of Corrections employees facing closure of a D.C. reformatory were not entitled to federal competitive status for the purpose of retirement benefits and "entitlement" to federal employment simply because some federal prisoners were committed to D.C. prisons. The passage of the D.C. Comprehensive Merit Personnel Act, D.C. Code Secs. 1-201.01 established a city personnel system apart from that of the federal government. Lucas v. United States, Nos. 00-5149, 00-5191, 268 F.3d 1089 (D.C. Cir. 2001).


     A state statute, Tenn. Code Ann. Sec. 39-16-605, applied to the escape of a prisoner from a private facility in Tennessee when the prisoner was convicted of an offense in Montana and placed in the private prison under a contract between the Montana correctional authorities and the private prison company. The court ruled that such prisoners were not "unlawfully imprisoned." Tennessee v. Lankford, 51 S.W.2d 212 (Tenn. Crim. App. 2001). The U.S. Supreme Court recently denied review of the case, rejecting a petition for certiorari arguing that such incarceration of an out-of-state prisoner in a private for-profit facility without consent or waiver of extradition denied the inmate due process and made his Tennessee conviction for escape void. McKeon v. Tennessee, No. 01-922, cert. denied, 2002 U.S. Lexis 741.

False Imprisonment

     State Department of Corrections was required to honor court accepted plea agreements with prisoners and sentencing court's imposed sentences, and could not unilaterally modify those sentences based on its own determination, for instance, that such sentences violated a state statute concerning when prisoners were entitled to concurrent rather than consecutive sentences. Correctional officials usurped judicial power by doing so. Prisoner's due process rights, however, were not violated, as they had no right to sentences which violated state statutes, and those sentences "must be vacated." Hamilton v. Freeman, No. COA00-1470, 554 S.E.2d 856 (N.C. App. 2001).

      Mentally disabled former prisoner and his mother stated a claim against city and county for failure to adequately train their employees in case where improper identification of him as a fugitive sought in a warrant from another state allegedly led to his extradition and two-year imprisonment. Lee v. County of Los Angeles, #98-55807, 240 F.3d 754 (9th Cir. 2001). In a decision previously reported in this publication, Sanders v. New York Dept. of Corrections, No. 97 Civ. 7112 (DAB), U.S. Dist. Ct. (S.D.N.Y. April 12, 2001), Jail & Prisoner Law Bulletin No. 294, p. 85 (June 2001), the same plaintiffs reached a $3.25 million settlement with New York state correctional officials over the two-year mistaken incarceration.

Medical Care

     Prison officials were granted permission to force feed an inmate who went on hunger strike for three weeks at the point where his hunger strike becomes threatening to his life. The prisoner stopped eating because he said he was upset about his daughter's death, and the court granted prison authorities the right to monitor his condition through blood tests and to feed him intravenously or through a feeding tube at the point that his life is in jeopardy. In Re Robert Weeks, Circuit Court, Livingston County, Ill., reported in The Chicago Tribune, p. 13 (Jan. 26, 2002).

     Seven-day delay between prison doctor's observation of a "positive skin change" on diabetic detainee's foot and subsequent treatment raised a genuine issue of whether there was deliberate indifference to prisoner's serious medical needs in case where subsequent infection resulted in two toe amputations and stump revision surgery. Spencer v. Sheahan, 138 F. Supp. 2d 837 (N.D. Ill. 2001).

     A cut to a prisoner's finger, even if the skin was "ripped" off, as the prisoner claimed, was not sufficiently serious to be the basis for a federal civil rights claim for denial of adequate medical care. Sonds v. St. Barnabas Correctional Health Services, 151 F. Supp. 2d 303 (S.D.N.Y. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner's assertion that pursuing available administrative remedies would be futile did not excuse his failure to pursue prison grievance procedures before filing his federal civil rights lawsuit, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Freytes v. Laboy, 143 F. Supp. 2d 187 (D. Puerto Rico).

Prisoner Restraint

     Pre-trial detainees were entitled to after-the-fact procedural due process protections when they were required to be put in additional restraints when being moved within or outside the jails. This includes the right to a hearing, written decision, and timely review of appeal from placement in special restraint status. Such restraint must be imposed for a legitimate security purpose rather than an impermissible purpose of punishment. Benjamin v. Fraser, #00-9093 & 00-9095, 264 F.3d 175 (2nd Cir. 2001).

Procedural: Discovery

     In a class action lawsuit by city jail inmates who were diagnosed with mental illness, plaintiffs had the right to obtain the discharge planning records of former inmates already released as part of the discovery. Brad H. v. City of New York, 729 N.Y.S.2d 348 (Sup. 2001).

Procedural: Summary Judgment

     Trial court should not have entered a summary judgment in favor of officers on prisoner's racial discrimination civil rights lawsuit simply because the prisoner, who was acting as his own lawyer, failed to file any papers in opposition to the motion for summary judgment. Trial court still should have examined the officers' submissions to determine if they met their burden of showing that there were no material issues of fact remaining for trial, because if they had not, summary judgment was inapropriate. Amaker v. Foley, #01-0018, 274 F.3d 677 (2nd Cir. 2001).

Cross References
Defenses: Statute of Limitations -- See also Featured Cases: Access to Courts/Legal Info
Defenses: Eleventh Amendment Immunity -- See also Featured Cases: Disability Discrimination: Prisoners
Procedural: Evidence -- See also Featured Cases: Prisoner Assault: By Officers
Sexual Harassment -- See also Featured Cases: Strip Search: Prisoners

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