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Jail and Prisoner Law Bulletin

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

ISSN 0739-0998

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2003 JB Feb. (web edit.)

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Featured Cases – with Links

Employee Injury/Death
First Amendment
Mail (2 cases)
Medical Care
Prison Litigation Reform Act: Exhaustion of Remedies (2 cases)
Prisoner Assault: By Inmates
Prisoner Death/Injury
Prisoner Discipline
Prisoner Restraint

Noted in Brief -- With Some Links

Defenses: Eleventh Amendment Immunity
Defenses: Procedural
Defenses: Qualified Immunity
Defenses: Statute of Limitations (2 cases)
Disability Discrimination: Employees
Drugs and Drug Screening
Employment Issues
First Amendment (2 cases)
Medical Care (4 cases)
Prison Litigation Reform Act: "Three Strikes" Rule
Prisoner Assault: By Officers (2 cases)
Prisoner Death/Injury
Procedural: Discovery
Telephone Access





Employee Injury/Death

Complaint by estate of prison employee concerning prison's practice of allowing prisoner with a history of violent crimes using knives to have access to a knife without adequate supervision was sufficient to state a federal civil rights claim for employee's murder by prisoner under "state-created danger" theory. Warden was, however, entitled to qualified immunity because of the absence of "clearly established" law.

     The plaintiff's decedent was a prison food service employee at a Michigan state correctional facility who was allegedly murdered by a prisoner with a knife. The facility housed male offenders between the ages of 17 and 21, and her alleged assailant was assigned to routine kitchen duties as a work assignment.

     The prisoner had been convicted of committing a criminal sexual assault with a knife. The plaintiff's complaint, filed by the employee's estate, claims that he also had a history of admitting to at least eight rapes, several of which were committed at knife point, and that the decedent had told her superiors prior to the attack that he should not be allowed near her.

     The complaint asserted a claim for violation of the decedent's constitutional due process rights against the warden for allegedly instituting policies or practices under which prison inmates working on kitchen details were allowed access to knives that were "neither tethered nor secured in any manner," and failing to conduct any meaningful investigation of the prisoners to whom large knives were provided in order to assess their mental stability and/or propensity for committing additional violent acts.

     On the day of the attack, the prisoner checked out a "large knife," and when the employee left the cooking area and went to the back offices, he allegedly followed her and then violently stabbed her with the knife. The complaint further contends that the warden further increased the decedent's risk of substantial harm because he deviated from Michigan Department of Correction's policy when he declined to station correction officers within the kitchen food preparation area or otherwise provide adequate supervision of the prisoners there.

     A federal appeals court ruled that the complaint, read in the light most favorable to the plaintiff, supports a federal civil rights claim for violation of the decedent's substantive due process rights guaranteed by the Fourteenth Amendment.

     Under DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), the appeals court acknowledged, a person generally does not have a constitutional right under the Fourteenth Amendment to be protected from the criminal acts of a third party. Two recognized exceptions to this, however, are the special relationships doctrine and the "state-created danger" theory.

     "A special relationship exists when the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to the individual," such as when the individual is a prison inmate or involuntarily committed mental patient. The court found that this theory "is inapplicable" because the decedent was simply "an employee of the state" working at the facility and "an employment relationship is consensual."

     Additionally, the U.S. Supreme Court's decision in Collins v. City of Harker Heights, Tx, 503 US. 115 (1992) makes it clear, the appeals court said, that neither the state nor the warden had any constitutional duty in their capacities as the decedent's employers to protect her from unreasonable existing risks. "Prisons are dangerous places, and the people who work in them are generally not entitled to receive any recovery if some unexceptional danger results in an injury, unless their exposure to risk was intended to be some form of punishment."

     The appeals court found, however, that the "state-created danger" theory of liability could apply, if a governmental actor played a part in the creation of the danger or did something to make the decedent more vulnerable to harm. In this case, the plaintiff alleged facts that the warden's conduct in establishing, adopting or acquiescing in the offending facility policies, practices and procedures put the decedent and other members of the kitchen staff "at substantial risk of serious immediate and proximate harm," and that the risks were "known or obvious." Further, the complaint contains factual allegations "supporting a reasonable inference that the defendant acted recklessly in conscious disregard of these risks."

     The appeals court ruled, however, that the defendant warden was entitled to qualified immunity from liability because the "state-created danger" doctrine was not clearly established at the time of the incident in question, which was May of 1998. Accordingly, the court concluded that it could not be said that the defendant warden knew or should have known at the time that by acting as he did he would violate the decedent's substantive due process rights.

     Waller v. Trippett, No. 01-2716, 49 Fed. Appx. 45 (6th Cir. 2002).

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

     EDITOR'S NOTE: This case, despite being "not recommended for full text publication" by the appeals court, and despite not imposing liability (on the basis of a grant of qualified immunity to the defendant warden) is very important. The court's reasoning would appear to indicate that the "state-created danger" theory of liability could apply in the future in similar circumstances, having been recognized by the Sixth Circuit in Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). The fact, however, that 6th Circuit rules limit the citation of the immediate case could present at least an argument that the Circuit still has not applied the rule in these particularized circumstances in a manner that a defendant should know of, but it would be extremely unwise for any official to rely on that in establishing or implementing policy.

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First Amendment

Prison's requirement that books received from vendors have special shipping labels attached or else not be delivered to prisoners found to unduly burden inmates' First Amendment rights. Federal court finds policy was arbitrary and unreasonable and that legitimate security interests in preventing introduction of contraband were adequately protected by other existing policies.

     A prisoner housed in a security housing unit at a California state prison complained about an "operational procedure" adopted by the facility intended to prevent inmates in the unit from receiving contraband. The unit has a high number of inmates involved in gang activity, who "are more likely than prisoners housed in the general population to receive contraband, including drugs or encrypted messages in publications."

     The regulation adopted involves a "special purchases program" covering incoming property, including books, periodicals, magazines and calendars." It states that such items may be ordered by prisoners in the unit from mailorder stores or publishers, provided that "approved book labels" are attached before the items are shipped.

     The prisoner is required to sign the label form to receive the item and the form must also be signed by a designated prison staff member. The book label must also have a vendor stamp attached. Packages without the vendor stamp, label, or the required signatures are returned to the sender, and all property items must be ordered from an "approved vendor." The procedure also provides that an inmate may receive only one book package per month, and may possess no more than ten books and magazines at any one time.

     The packages are searched prior to delivery, and following a manual inspection may be subjected to inspection with the use of a fluoroscope machine. Prison authorities explained that the point of the special labels was to ensure that books and periodicals sent to inmates are shipped directly from authorized publication vendors, rather than from inmates' friends or family members, thus decreasing the possibility that contraband will be included in the packages.

     The plaintiff prisoner had a friend who placed an order with Barnes & Noble Booksellers for four books to be shipped to him. She included the necessary required book label with her order, but two months later, the prisoner had not received the books. Upon inquiry, the friend was told that in that two month period, over one hundred book packages were returned to sender because of the vendor's failure to place the book label on the box, or because the vendor did not place its vendor stamp in the appropriate box on the label. The prisoner received the books several months later, after the friend took the label form to the book store to ensure its proper completion.

     After that incident, the friend, "greatly frustrated" by the "difficulties imposed by the book label requirement" stopped correspondence with the prisoner and he then did not have another friend willing to assist him in procuring books. He claimed that, as a result, he did not receive any books for approximately two years. The plaintiff prisoner further pointed to the experience of his cellmate, who had book packages returned to publishers. The publisher in one instance indicated that it had an "inability" to utilize the book labels because of its practice of receiving orders and filling them in different locations.

     The trial court agreed that ensuring that books are shipped directly from a publisher and preventing the introduction of contraband into the prison were legitimate penological interests. It noted, however, that the policy was not "neutral," i.e., it was not unrelated to the suppression of expression. The court pointed to the fact that the label policy applied to packages of books, but did not apply to packages containing other items, such as tennis shoes, thermal tops and bottoms and approved appliances.

     The correctional defendants offered no evidence or argument that these other items are "less likely than books" to be utilized for introducing contraband into the prison, so that the policy "is weighted against First Amendment activities."

     The trial court additionally found that the evidence submitted by the prisoner and the defendants "refutes any common-sense" or rational connection between the book label policy and the legitimate goals of ensuring against contraband and providing prison safety. The court found that the interest in requiring that the books are sent directly from an approved vendor could be satisfied by checking the vendor's address label and invoice in each book package. The defendants admitted at a hearing that its concerns regarding forged invoices and falsified vendor address labels "are not alleviated by the book label, because it could be forged or falsified just as easily."

     Additionally, since all personal property received by inmates in the mail, including books and magazines, are searched prior to delivery to the prisoner, the defendants failed to show any way in which the book label policy provided a "measure of security not afforded by these routine and mandatory searches." The court noted that even a legitimate package of books, including an authentic book label provided by the inmate, would be searched by prison authorities before delivery to the prisoner.

     Since the book label requirement was found to be "arbitrary and unreasonable," it was not rationally related to legitimate penological objective, but instead was "unduly burdensome" on the prisoner's First Amendment rights. The court therefore enjoined the defendants from enforcing any policy prohibiting inmates from receiving books, periodicals, magazines or calendars "solely because a book label approved by the prison was not attached." The court emphasized that the order did not affect other policies requiring that book packages be shipped directly from a vendor in packages with the vendor's return address and invoice, or requiring a search of those packages, or limiting the number of packages the prisoners could receive or the type and number of books a prisoner may order or possess.

     Ashker v. California Department of Corrections, 224 F. Supp. 2d 1253 (N.D. Cal. 2002).

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

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Virginia correctional policy limiting prisoner's incoming general purpose mail to one ounce per envelope did not violate prisoners' First Amendment rights and served legitimate penological interests in reducing avenues for smuggling contraband into the prisons. Policy did not apply to legal, special purpose, educational correspondence, or mail from vendors or governmental agencies.

     A prisoner in a Virginia state correctional facility sued the director of the State Department of Corrections, claiming that a policy adopted by the Department, specifically Division Operating Procedures 851, regarding incoming personal mail, violated his First Amendment rights. The complained of regulation limits the weight of incoming general purpose mail to one ounce per envelope, and the prisoner sought an injunction against the regulation's enforcement.

     Granting summary judgment to the defendant director, the federal court agreed that the regulation furthered a legitimate penological interest and that prisoners have no constitutional right to an "unrestricted amount of incoming personal mail in a single envelope."

     Under the regulation, the inmate is responsible for compliance and for instructing family and friends on their requirements. The court pointed out that there is "no limit" on the amount of mail that an inmate can send or receive, but the weight of general purpose incoming correspondence is limited to one ounce per envelope. Incoming general purpose mail that exceeds that weight limit is returned to the postal service unopened.

     The weight limitation is not applied to the prisoner's incoming legal, special purpose mail, educational correspondence, packages, mail from a vendor, or mail from a federal, state or local agency, the court noted.

     As for general correspondence, the court pointed out that "Incoming mail is recognized as a source for contraband" to enter the institution. Therefore, all incoming mail and packages are opened and searched prior to delivery to inmates. In addition, since correspondence may contain information that is a threat to institutional security, such as escape plans, incoming mail may be read.

     The one-ounce rule is "not a prohibition on correspondence, but merely a limitation on the weight of incoming, general purpose mail. If one of plaintiff's correspondents wishes to write a longer letter, this person must merely send it in two or more envelopes."

     "The prevention of incoming contraband," the court reasoned, has long been acknowledged as a valid penological interest due to institutional security concerns. The weight limitation on incoming general purpose mail furthers the legitimate governmental interest of institutional security "because it allows mail room personnel to quickly scan a shorter document for potential security risks, such as escape plans. Otherwise, mail room personnel may have to "sift through tens, or even hundreds, of pages in order to determine whether a security threat was hidden in an otherwise innocuous letter."

     The court found that prison officials are "not trying to limit the amount of mail a prisoner receives," and stated that to do so would raise "more significant constitutional concerns" than the immediate case. Rather, they are trying to "optimize the screening procedures to minimize the amount of time required to determine if incoming mail contains illicit materials." 

     The court found that the plaintiff prisoner had failed to suggest any alternative to the policy that would not result in greater than a minimal impact. The only alternative "apparently available," the court stated, "requires additional screening personnel," and therefore would "result in additional expenditures from a severely limited" budget.

     The court also noted that the regulation "does not relate to the content of the inmate's correspondence and thus, does not involve issues of censorship."

     Hall v. Johnson, 224 F. Supp. 2d 1058 (E.D. Va. 2002).

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

     Editor's Note: The Virginia Department of Corrections spells out its rules about correspondence to inmates in its facilities on its website.

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Magazines sent to prisoner through the mails were obscene despite not showing sexual penetration when they did depict simulated sexual activity and discharged sexual fluids, but factual issues remained as to whether prison mail room employees improperly censored or returned to sender non-obscene letters and photographs sent to inmate by individual female correspondent and whether some materials sent to him were improperly "converted" for their "own personal use."

     A prisoner in Kansas filed a federal civil rights lawsuit against prison officials and employees contending that he had been improperly denied access to non-obscene magazines, correspondence, and photographs sent to him through the mails. He also claimed that he was denied equal protection because magazines were denied to him which other prisoners were allowed to receive, and that prison mail room employees "converted" some of the materials sent to him for their "own personal use." The correspondence and photographs were sent by an individual female correspondent who allegedly included pictures of herself in panties or a swimsuit.

     A federal appeals court ruled that the magazines in question, despite the prisoner's arguments, actually were obscene and therefore could properly be withheld. The prisoner contested the withholding of several issues of a sexually oriented magazine called Hawk, and "persistently" argued that they were not obscene because they did not show "sexual penetration." While the court acknowledged that "sexual penetration" was not shown, prison authorities properly withheld the magazine as obscene because it "contained other types of obscenity," including "photographs depicting simulated sexual activity and discharged sexual fluids."

     The appeals court found that there were, however, factual issues concerning whether employees in the prison's mail room censored the letters and photographs from the prisoner's individual female correspondent or returned them to the sender. It further found that the record did not show what was done with the materials seized or what ultimately happened to the materials, preventing dismissal of the plaintiff's "conversion" claim.

     The appeals court also found that the prisoner was entitled to further proceedings on his procedural due process claim, that he should have had an opportunity to request a hearing, or some other comparable remedy before the items were destroyed or returned. It ruled that the prisoner had raised this issue in his prison grievances and in the appeal of the grievances, properly exhausting available administrative remedies. The trial court therefore improperly dismissed this claim for failure to exhaust administrative remedies.

     Finally, the court rejected the plaintiff prisoner's "equal protection" argument. He had claimed that the defendants treated him disparately by allowing other inmates to receive and keep certain publications and pen pal correspondence, while at the same time censoring the same or similar materials when they were sent to him.

The appeals court acknowledged that the U.S. Supreme Court has recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that he has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment," citing Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam). In this case, however, the prisoner failed to claim that the difference in treatment was intentional. If the disparate treatment allegedly received was the "result of haphazard, arbitrary decision making," rather than "wrongful intent directed at him personally," it could not support an equal protection claim.

     Elliott v. Cummings, #01-3317, 49 Fed. Appx. 220 (10th Cir. 2002).

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

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Medical Care

Director of prison's medical services who acted in an administrative role and was not directly responsible for examining or treating the inmate was entitled to qualified immunity for upholding prison doctor's determination that facility did not need to provide prisoner with a continuous positive air pressure machine (CPAP) to treat obstructive sleep apnea.

     A former inmate at a North Dakota state penitentiary sued a prison doctor and a nurse who is the penitentiary's director of medical services, claiming that they violated his civil rights by failing to provide him with a continuous positive air pressure machine (CPAP) to treat his obstructive sleep apnea (OSA), a condition which causes him to stop breathing while he sleeps.

     He claimed that the failure to provide him with this equipment was deliberate indifference to his serious medical needs and violated his Eighth Amendment rights to be free from cruel and unusual punishment. He also claimed that the medical director knew that the doctor provided inadequate care to inmates, and allowed that "lack of care and treatment to continue to include the treatment received" by the plaintiff "in a potentially life threatening situation." He additionally claimed that she failed in her responsibilities by suggesting that he buy his own CPAP when she knew he lacked the funds to do so.

     The medical director moved for qualified immunity, arguing that she relied on the doctor's orders. The trial court denied this motion, believing that because of her training as a nurse, her supervisory duties, and her actual knowledge of the prisoner's condition, she could not "escape liability merely by claiming she followed orders."

     A federal appeals court did not agree, and reversed, granting the medical director qualified immunity from liability. The appeals court noted that while the medical director is a nurse, her role is administrative in ensuring that inmates are seen by medical personnel and treated. "She is a nurse, but does not examine or take care of patients herself."

     When the plaintiff prisoner was admitted to the facility, he completed inmate intake health forms, indicating that he suffered from OSA and that his doctor had prescribed nightly CPAP use to treat it. The prison doctor examined the prisoner and agreed with the diagnosis of OSA. He stated that the prisoner could use his own CPAP if available, but that he did not prescribe a CPAP for him.

     The doctor obtained the prisoner's earlier medical records and reviewed them, but stood by his earlier treatment instructions. The prisoner was later admitted to the prison infirmary with chest pains and saw a cardiologist who recommended that he "be placed on CPAP on a nightly basis to avoid severe and life threatening complications of sleep apnea and/or that he be able to maintain the head of his bed at approximately 45 degrees." The prisoner then received a CPAP within a few hours of the cardiologist's recommendation.

     The appeals court agreed with the medical director's argument that the law was not clearly established that she could not rely on a doctor's order that the prison need not provide a CPAP to treat the prisoner's OSA. A supervisor is only liable for an Eighth Amendment violation when they are "personally involved in the violation or when the supervisor's corrective inaction constitutes deliberate indifference toward the violation."

     A prison's medical treatment director "who lacks medical expertise cannot be liable for the medical staff's diagnostic decisions," the court reasoned, and cannot substitute their judgment for a medical professional's prescription. The court found that the medical director's adherence to the doctor's orders was objectively reasonable in light of the legal rules in place at the time.

     The prison medical director had "some medical training as a nurse, but she was functioning in an administrative role" and was not responsible for examining or treating the prisoner. While the prisoner personally told the medical director about his condition, she relied on the opinion of prison doctors, "who had more medical training about the necessary treatment" for the prisoner's condition. The court noted that the medical director followed both the first doctor's recommendation that a CPAP was unnecessary and the cardiologist's order that the prison should provide it, after the prisoner experienced further symptoms and difficulties.

     She did not deny the prisoner access to medical care by prison doctors and medical staff, and did not "interfere with that care or the prescribed treatment." Accordingly, she was not personally involved in any Eighth Amendment violation.

     "The law does not clearly require an administrator with less medical training to second-guess or disregard a treating physician's treatment decision."

     Meloy v. Bachmeier, No. 01-3415, 302 F.3d 845 (8th Cir. 2002).

     »Click here to read the text of the decision below on the Internet.[PDF format]

     Editor's Note: For a listing of publications about sleep apnea, including some available on-line, see the website of the American Sleep Apnea Association.

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Prison Litigation Reform Act: Exhaustion of Remedies

Prison Litigation Reform Act's "exhaustion of remedies" requirement applied to a grievance procedure described in an inmate handbook, even when it had not been formally adopted by a state administrative agency and even if the "effectiveness" of the grievance procedure "may have been unclear," federal appeals court rules.

     The requirement contained in the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a) that a prisoner must exhaust available administrative remedies before proceeding with a lawsuit, a federal appeals court has ruled, means just what it says--if the administrative remedies are "available," they must be pursued--even if they have not been formally adopted by a state administrative agency and when it can be argued that the "effectiveness" of the remedies provided and the procedures made available are "unclear."

     The case involved two prisoners in the custody of the New Jersey Department of Corrections. They claimed that their civil rights had been violated through the use of excessive force against them during two separate incidents involving correctional officers. The defendant correctional officials claimed that the prisoners had failed to exhaust available administrative remedies and argued that the lawsuit should therefore be dismissed for failure to do so.

     The defendants pointed to an administrative grievance procedure set forth in the Department of Corrections Inmate Handbook. The process includes the inmate submitting an "administrative remedy form" to the administrator's office, a written response being written on the form by the department head, and the response being reviewed and signed by several levels of supervisors. "The inmate complaint form with the administrative response is then placed in the inmate's Classification folder and the prisoner is given a copy," the trial court summarized, "No administrative appeal is permitted."

     The Handbook states that the grievance procedure is "set up to give the inmate population a way to bring complaints, problems, suggestions, etc. to the attention of the Administration of the New Jersey State Prison to solve or possibly put into use."

     The trial court found that this was insufficient to be an "administrative remedy" for purposes of Sec. 1997e(a), and consequently held that there were no available administrative remedies available, declining to dismiss the complaint. The federal appeals court disagreed.

     The appeals court found that an "administrative remedy" need not be one formally adopted by a state department of corrections, and that it was sufficient that the remedy in the Handbook "proceeded from" the prison warden and his staff, who, as a group, are "responsible for managing the prison."

     While the plaintiffs argued that the "grievance procedure" described in the Handbook was more like a "suggestion box," and therefore was not the type of "administrative remedy" required by Congress, the appeals court found that Congress did not want courts to examine the "effectiveness of administrative remedies but rather to focus solely on whether an administrative remedy program is 'available' in the prison involved." The appeals court further explained that it was a "justifiable assumption" that Congress "intended to save courts from spending countless hours, educating themselves in every case, as to the vagaries of prison administrative processes, state or federal."

     Such remedies "need not meet federal standards," nor must they be "plain, speedy, and effective." In this case, the appeals court ruled, while the "effectiveness of the Handbook's grievance procedure may be unclear, there is no doubt that it is 'available' to the plaintiffs." The appeals court therefore ruled that the lawsuit should be dismissed, as the plaintiffs did not pursue the grievance procedure before filing it.

     Concepcion v. Morton, #01-4345, 306 F.3d 1347 (3rd Cir. 2002).

     »Click here to read the text of the decision below on the Internet.[PDF format]

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Rastafarian prisoner's equal protection challenge against California prison hair length regulation should not have been dismissed for failure to exhaust available administrative remedies when defendant prison officials failed to establish such a failure to exhaust. Federal appeals court rules that failure to exhaust is a defense, with the burden on the defendants to establish it.

     A Rastafarian inmate in a California correctional facility challenged the state Department of Corrections' hair length regulations as a violation of his constitutional and statutory rights to free exercise of religion and equal protection of the laws.

     The magistrate judge served on both parties in the case a copy of his findings of fact from a different case challenging the grooming regulations and directed the defendant to file a summary judgment motion. When the motion was filed, he took judicial notice of his findings from the prior case and recommended summary judgment to the trial judge on the First Amendment claim, which the trial judge awarded. The trial court also dismissed the religious discrimination claim under a provision of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sec. 2000bb et seq., that had been declared unconstitutional. And finally, the trial court dismissed the equal protection claim for the plaintiff's alleged failure to demonstrate that he had exhausted available administrative remedies as required by 42 U.S.C. Sec. 1997e of the Prison Litigation Reform Act.

     A federal appeals court reversed and ordered further proceedings.

     The court found that there was insufficient evidence in the record of the plaintiff prisoner's alleged failure to exhaust available administrative remedies as to his equal protection claims. There was no evidence showing that the purported record of the prisoner's appeals was a complete record of the inmate's administrative appeals, and the record also did not show that the one appeal listed on the purported list of the inmate's appeals related to a different subject than the challenged hair length regulations.

     The appeals court reasoned that the provision of the Prison Litigation Reform Act requiring exhaustion of administrative remedies did not impose a "pleading requirement" on the prisoner, but rather creates a defense, on which the defendants have the burden of raising and providing the absence of exhaustion. Therefore, the court found that the dismissal of the equal protection claim was erroneous.

     It also ruled that the dismissal of the First Amendment religious freedom claim was improper, on two different grounds. First, since the plaintiff prisoner was acting as his own lawyer, the court ruled that the magistrate judge should have given him notice of the significance of its application of findings of fact from a prior case and the inmate's right to refute these findings, as well as how to refute them and the consequences of his failure to do so. This was required in order to give a plaintiff, acting as his own lawyer, "fair notice" of the possible loss of his claims through summary judgment.

     The trial court had also dismissed the plaintiff's claim under the Religious Freedom Restoration Act because City of Boerne v. Flores, 521 U.S. 507 (1997) had declared that statute unconstitutional as applied to the states. But the appeals court pointed out that Congress subsequently enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc-1 which essentially provides rights similar to those spelled out in the Religious Freedom Restoration Act, relying on different powers of Congress. The appeals court found, therefore, that on remand the trial court should grant the plaintiff prisoner leave to amend his complaint to plead a claim under RLUIPA.

     Wyatt v. Terhune, #00-16568, 305 F.3d 1033 (9th Cir. 2002).

     EDITOR'S NOTE: The Ninth Circuit summarizes, in the decision reported above, that only one federal circuit has imposed on the prisoner the burden of pleading and proving that he has exhausted available administrative remedies before proceeding with a lawsuit, the Sixth. Five other circuits, the Second, Third, Seventh, Eighth and D.C., in cases cited in the opinion, have described exhaustion as an affirmative defense that must be raised and proved by the defendant.

   »Click here to read the text of the decision below on the Internet.[PDF format]

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Prisoner Assault: By Inmates

County jail's alleged policy of failing to classify and segregate violent and nonviolent detainees was not the cause of an assault by one prisoner on another in an adjoining cell. Injured prisoner himself requested his particular cell assignment because of its view, and never requested being placed in protective custody or moved. Additionally, the attack occurred when he voluntarily followed the assailant into his cell.

     A prisoner in a Massachusetts county jail was assaulted and severely beaten by a fellow inmate while they were both pretrial detainees there. The injured prisoner brought a damages action under 42 U.S.C. § 1983 against certain jail employees and the county sheriff. He claimed that they had been deliberately indifferent to his health and safety, in violation of his Fourteenth Amendment due process rights as a pretrial detainee. He also asserted that the jail's failure to classify and segregate violent and nonviolent inmates itself violated the Eighth Amendment.

     A federal appeals court has upheld summary judgment for the defendants.

     The jail in question has three cell blocks. The first, where the plaintiff was held, has twelve cells on each of two tiers, for a total of 24 cells, and inmates have individual cells which they are able to lock from the inside. The court noted that inmates "also have some level of choice regarding their location," and are allowed to request to move within their cell block when cells become open. In this case, the plaintiff, early in his stay at the jail, requested a particular cell with a view of an adjacent forest, because he "wanted a room where [he] could see the free world." He was given this cell, and "it can be inferred that he was reluctant to give up his cell with a view."

     Much of the plaintiff's claim, the appeals court stated, rested on what he said were his assailant's "known and demonstrated violent proclivities." His attacker had been involved in several earlier incidents and was disciplined by prison officials at least three times. Two of the incidents for which he was disciplined involved violent altercations with other inmates.

     The two prisoners were one cell apart in the same tier of Cell Block A for four months before the incident at issue, and while no prior fights occurred between them, there were several "disagreements" between them, two of which the plaintiff claims he brought to the attention of jail officials. These included a disagreement about changing the channel on a television in the day room, a claim by the assailant that the plaintiff had disrespected him and that he would "hurt" him if he did so again, and an incident in which the assailant allegedly pushed the plaintiff in the gym.

     Despite this, the plaintiff admittedly did not ask for protective custody. When he suggested that the assailant was a "disruptive influence" and requested that he be moved, a correctional officer allegedly responded that "We've already moved him all over the place. There are no more places to move him."

     "Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause rather than the Eighth Amendment," the appeals court noted, "however, the standard to be applied is the same as that used in Eighth Amendment cases." Under this standard, correctional officials have "a responsibility not to be deliberately indifferent to the risk to prisoners of violence at the hands of other prisoners."

    In this case, "given the totality of the circumstances as understood by prison officials at the time, the defendants did not fail to take reasonable measures to avert potential harm. Even evaluating the record in the light most favorable" to the plaintiff, the officials' behavior "was not unreasonable when considered within the context of what they knew," the court found.

     The prisoner did not request protective custody, and represented himself to the defendants as "proficient in martial arts and as a decorated war hero." The defendants "reasonably could have believed that if tension between" the two prisoners "erupted," the plaintiff "would not be defenseless." (The plaintiff subsequently admitted that he "lied" about his ability to take care of himself).

     Additionally, the assailant had no "motive" to attack the plaintiff, based on the knowledge that the defendants had. The plaintiff "was neither a rival gang member nor an informant," and there was also no history of significant altercations" between them over the four months they had been blockmates. While the assailant did have a history of assaults on other inmates, it had been nearly nine months since he had been disciplined for violent behavior.

     The officials also knew that his asserted martial arts prowess aside, he could go into his cell and lock the door if he felt threatened. There was no basis for them to predict plaintiff would "walk into the lion's den and be mauled," as happened here when he followed the assailant into his cell and then was attacked. Under these circumstances, the appeals court ruled, "no jury could reasonably find that the officials had responded unreasonably."

     The plaintiff originally claimed that the sheriff was liable for both a failure to supervise and for inadequate training. He later dropped the claim of inadequate training, conceding that there was no basis for this claim. His failure to supervise claim against the sheriff, the appeals court ruled, "is doomed by his inability to establish that prison officials under [the sheriff's] supervision violated his Eighth Amendment rights. The causal chain is broken."

     The plaintiff also claimed municipal liability on the part of the County for having an unconstitutional custom or policy of failing to classify and segregate inmates. The jail's "policy of not screening and then segregating potentially violent prisoners from non-violent prisoners is not itself a facial violation of the Eighth Amendment."

     Nor was the policy the "actual cause" of the plaintiff's injury. As a factual matter, his "cell could be locked from the inside, and he could have requested protective custody or transfer to another cell block." He did not present evidence from which a jury could conclude that the policy posed a "substantial risk of harm to inmates," or "evidence of a pattern of harm to inmates going beyond his own assault."

     Burrell v. Hampshire County, #02-1504, 307 F.3d 1 (1st Cir. 2002)

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Prisoner Death/Injury

Washington state statutes which barred the payment of permanent partial disability benefits for workplace injuries to prisoners who had no family beneficiaries and were "unlikely" to be released from prison found to violate their due process and equal protection rights by state supreme court.

     The Washington State Supreme Court has ruled that state statutes which prevented the payment of industrial insurance permanent partial disability benefits to prisoners when they had no statutory family beneficiaries and were unlikely to be released from prison constituted a violation of their rights under the 14th Amendment of the U.S. Constitution to due process and equal protection of the law.

     Two plaintiff prisoners challenged the validity of RCW 51.32.040(3)(a) and 72.60.102. One is incarcerated at the state penitentiary in Walla Walla for life without the possibility of parole. He is unmarried and has no dependents. At the time of his injury, he was employed in a correctional work program to which the State's industrial insurance applied. On November 14, 1994, he suffered a job related injury, requiring the amputation of two-thirds of his right index finger. He filed a timely claim with Labor & Industries, which rated his injuries and determined he should receive $10,260.81 in permanent partial disability benefits. However, because he was incarcerated and had no spouse or dependents, Labor & Industries canceled his benefits pursuant to RCW 51.32.040(3)(a) and 72.60.102.

     The second prisoner, born in 1964, is serving a 60 year sentence at the state penitentiary in Walla Walla, and has no spouse or dependents. He also was employed in a correctional work program, to which the State's industrial insurance applied. On March 17, 1997, he suffered a job related injury, incurring the loss of three fingers of his right hand. He filed a claim with Labor & Industries. Noting that he was incarcerated and had no spouse or dependents, Labor & Industries closed his claim without first determining his permanent partial disability rating.

     Labor & Industries "argues its denial of benefits to prisoners is justified to preserve state resources because the State already provides prisoners with their basic needs," but the court found that the purpose of permanent partial disability benefits "is to compensate injured workers for the loss of bodily functions, not to provide for their basic needs." It also argued that "prisoners are criminals and thus more likely to abuse the industrial insurance plan by filing false claims, intentionally injuring themselves, or coercing fellow inmates to do the same." But the court noted that the legislature had provided that prisoners continue to be eligible for benefits under the Industrial Insurance Act and the State is not spared the expense of processing industrial injury claims by inmates and investigating fraudulent claims or self-inflicted injuries.

     The court therefore found that that RCW 51.32.040(3)(a), as applied to the plaintiff prisoners by RCW 72.60.102, "deprives them of property absent that lawful process which is due." The court also found that the denial of benefits solely on the basis that the plaintiffs did not have family beneficiaries and were unlikely to be released from prison violated equal protection rights of the plaintiffs.

     The court rejected the argument that all prisoners were treated alike because none of them receives benefits while incarcerated. It noted that the statutes allow the transfer of benefits to a third party.

     The court found no rational basis for the distinction in treatment, and therefore a violation of equal protection rights.

     Willougby v. Dept. of Labor and Industries of  the State of Washington, No. 71950-1, 57 P.3d 611 (Wash. 2002).

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Prisoner Discipline

Prisoner's due process rights were not violated at disciplinary hearing by a defect in the audio recording of the testimony, despite a state law requirement that an electronic record be kept, or by the hearing officer's alleged failure to call witnesses who the inmate failed to sufficiently identify.

     A New York state prisoner claimed that his federal civil rights, specifically his right to procedural due process, were violated by various defects in a disciplinary hearing where he was found guilty of assaulting an officer and punished by being placed in a special housing unit for ten months as a punishment.

     He pointed to alleged defects in the audio recording of the testimony at the hearing, arguing that this violated his rights since a New York law requires that an electronic record of prison disciplinary hearings be made, and that the hearing officer refused to call a witness to the incident who the prisoner identified as a "Latino officer."

     A federal trial court rejected these claims entirely. The court found that any violation of the state law concerning the making of an audio recording of the disciplinary proceedings did not constitute a violation of federal constitutional due process rights. Federal law merely requires that the hearing itself be fair, and in this instance, the prisoner was given a written statement which detailed the hearing officer's reasons for finding a disciplinary violation, and there was evidence in the record to support the officer's finding. This was sufficient for federal due process, even if the state statute was arguably violated.

     The court also found that the plaintiff prisoner inadequately identified or described the witness he wanted called at the hearing. The description, which only said that he was a "Latino officer" was insufficient to identify who it was that the prisoner wanted to testify, so the failure to call him did not violate his rights.

     The court also rejected the argument that the punishment imposed was cruel or unusual punishment or grossly disproportionate to the seriousness of the offense.

     Dixon v. Goord, 224 F. Supp. 2d 739 (S.D.N.Y. 2002).

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Prisoner Restraint

County jail personnel's actions in strapping a female detainee naked and spread-eagle to a restraining board for three and a half hours and failing to cover her, allowing her to be observed by male officers, violated her constitutional right to privacy, but defendants were entitled to qualified immunity on federal civil rights claim, as the right violated was not "clearly established" at the time. State law award of $2,500 in damages for violation of privacy is upheld.

     A woman arrested for public intoxication while walking home from a bar in Iowa was uncooperative during the jail booking process, allegedly yelling and cursing at officers. They placed her in a holding cell, where she pounded and kicked at the door of the cell. After a time, they decided to place her in the jail's padded cell. Written jail policy provided that prisoners placed there are not allowed to wear normal clothing, but instead must wear a paper gown or nothing at all.

     The detainee claimed that she was not offered the gown and that a male officer observed her remove her clothing, as well as a female. The female officer, a defendant in the detainee's subsequent lawsuit, claimed that she offered her the paper gown, but that the detainee refused to wear it. The detainee was naked while in the padded cell, and, at times, yelled and struck at the walls and door.

     After a time, the two officers allegedly were concerned that she was going to "hurt herself." Four male officers subsequently arrived, prior to a shift change, and they and the first two officers decided to remove the detainee from the padded cell and place her on a restraining board, claiming that this was for her safety. They then removed her from the cell, walked her down a hall into another room, and strapped her to the restraint board face-down, naked, and in a spread-eagle position. She allegedly remained strapped to the board for approximately three hours. At one point, one of the officers covered her buttocks with a towel, although it was disputed how long she was on the board before this was done.

     The detainee sued, alleging a violation of her Fourth Amendment right to privacy as well as her privacy rights under Iowa state law. A jury returned a verdict for the plaintiff on both claims and awarded $2,500 in damages.

     A federal appeals court agreed that the plaintiff's privacy rights were violated under both federal and state law, but held that the defendants were entitled to qualified immunity on the federal claim because the right violated was not clearly established at the time of the incident. It therefore also reversed an award of attorneys' fees which was dependent on liability on the federal claim.

     The appeals court rejected some of the plaintiff's claims, however. Even if it was a male guard who required her to disrobe initially, as she argued, "we cannot say in light of precedent that it is a violation of a prisoner's Fourth Amendment privacy rights for a male guard to require a loud and violent female prisoner to disrobe in his presence before placing her in a padded cell for her own safety." Additionally, "because there were not enough female guards available" to transfer the detainee from the padded cell to the other room, "both male and female guards participated in the transfer," but the "use of male guards in an otherwise justified transfer of an unruly and naked female prisoner is not a violation of the Fourth Amendment."

     The appeals court found that the real Fourth Amendment violation was being secured to the restraint board naked and spread-eagled in the presence of male officers for as long as three and a half hours. While one of the officers claimed that she was covered almost immediately after she was placed on the board, the plaintiff testified that she remained uncovered until just before she was released from the board. The verdict indicated that the jury believed the plaintiff's version of the incident.

     At the same time, the appeals court found that the defendants were entitled to qualified immunity from liability on the federal claims, since the case law at the time of the incident, 1996, indicated that prisoners were entitled "to very narrow zones of privacy, and circumstances may warrant the most invasive of intrusions into bodily privacy." In light of this, the court found that it could not say as a matter of law that it was clearly established in 1996 that a "highly intoxicated, loud and violent prisoners could not constitutionally be restrained naked outside the view of all but a small number of guards."

     The appeals court did uphold the jury's verdict, however, as to the state law privacy claim, finding that a reasonable jury could find that the defendants' actions were an unreasonable and highly offensive intrusion upon the plaintiff's privacy under Iowa state law. It further found that there was sufficient evidence to "support the jury's apparent belief that the defendants did not need to restrain" the plaintiff naked in order to "protect their safety and hers." It further found that the $2,500 amount was appropriate for her "physical pain and suffering," including bruises that she suffered from struggling against her bonds because her "complete exposure" caused her "such anger and anguish."

     Hill v. McKinley, #01-2574, 311 F.3d 899 (8th Cir. 2002).

    »Click here to read the text of the decision below on the Internet. [PDF format].

     EDITOR'S NOTE: The decision reported above was a 2-1 opinion of a three judge panel. A strong dissent by the third judge argues that the officers had "fair warning" that their actions amounted to an unconstitutional invasion of the plaintiff's privacy, and that there was no legitimate security concern that required the officers to make her remain nude.

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Massachusetts intermediate appeals court rules that prison must allow Muslim prisoners to wear kufi religious caps, even if housed in disciplinary housing units.

     Rejecting arguments that the inmates in a disciplinary housing unit could be prohibited from wearing Muslim kufi religious caps because they could be used to conceal contraband, an intermediate Massachusetts appeals court found that the restriction violated the constitutional right to exercise the plaintiff prisoner's religion as guaranteed by the Massachusetts State Constitution, art. 46, § 1.

     The plaintiff prisoner was not allowed to wear a kufi (also referred to in the record as a koofi), a prayer cap used in his practice of the Muslim faith after his transfer to the prison's Departmental Disciplinary Unit, although he was allowed to receive a Koran, the Muslim holy book, so long as it was not a hard cover book. The plaintiff wrote a series of letters complaining about this, all to no avail, and he remained without his kufi. When he filed a lawsuit in state court asserting his religious freedom claim, the trial court granted a preliminary injunction which, in pertinent part, ordered that the plaintiff "shall be permitted to possess and wear a koofi while housed in the [DDU] at MCI-Cedar Junction."

     On appeal, the defendants argued that the issue was moot because the prison has "changed its policy" and now permits a DDU inmate to wear religious head wear, including a kufi. "However, the defendants' presentation in the record of the alluded-to change in policy leaves much to the imagination. The defendants introduced no writing or documentation," instead simply asserting in its brief that the plaintiff is now permitted to possess and wear a koofi in the DDU.

     The court also noted that the Massachusetts Supreme Judicial Court "has not addressed the constitutional standard governing review of a prison policy that burdens free exercise rights protected by art. 46, § 1." However, it ultimately held that, regardless of whether the defendants needed to show a compelling state interest in restricting the prisoner's religious practice or merely a "reasonable relationship to valid penological interests" the result would be the same.

     While the correctional defendants suggested that a kufi poses the potential for concealing contraband or dangerous instrumentalities, the only evidence proffered by the defendants to support that proposition "was an affidavit of the defendant John Marshall, superintendent of MCI-Cedar Junction, which simply stated, ipse dixit, that a kufi may be used to conceal contraband." The court reasoned:

Because the defendants have not met their burden of establishing a constitutionally adequate justification for prohibition of the kufi from the DDU and the resultant burden on free exercise rights, "we hold that the DDU restriction unconstitutionally abridged the plaintiff's religious rights protected under art. 46."

     The court emphasized that nothing in its decision "shall be deemed to prevent Department of Correction personnel from searching any kufi in accordance with applicable procedures, or from undertaking other appropriate security measures."

    Abdul-Alazim v. Superintendent, No. 99P-1302, 778 N.E.2d 946 (Mass. App. 2002).

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Noted In Brief

Defenses: Eleventh Amendment Immunity

     New York State Department of Corrections (DOCS) was immune under the Eleventh Amendment from a state prisoner's federal civil rights lawsuit challenging prison conditions. Claims against prison superintendent and two guards were also dismissed because of failure to prisoner to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Miller v. New York State Department of Corrections, 217 F. Supp. 2d 391 (S.D.N.Y. 2002).

Defenses: Procedural

     When trial court's order dismissed most of prisoner's claims against county employees for allegedly keeping him incarcerated beyond his sentence, but failed to dispose of his claims against one employee, the order was not a final judgment and therefore was not yet appealable by the prisoner. Eubanks v. McCollum, #2000758, 828 So. 2nd 935 (Ala. Civ. App. 2002).

Defenses: Qualified Immunity

     County sheriff and jailer were entitled to qualified immunity in civil rights lawsuit brought by inmate who claimed that his serious medical needs were ignored after he suffered a stroke while incarcerated. The plaintiff failed to show that the defendant officials knew about the prisoner's stroke symptoms or his alleged repeated requests for medical help, or that they had any subjective knowledge that the jail policy for responding to medical requests was inadequate in any way. Prison nurse, however, was not entitled to qualified immunity, as a reasonable nurse would have known that a failure to examine an inmate complaining of stroke symptoms was in violation of his constitutional rights. Tate v. Coffee County, Tennessee, No. 01-6304, 48 Fed. Appx. 176 (6th Cir. 2002).

Defenses: Statute of Limitations

    Louisiana inmate could not pursue a lawsuit against correctional officials over prison discipline when a state statute, LRS-R.S. 15:1177, subd. A, required that he seek judicial review of an adverse administrative remedy decision within 30 days and he failed to do so. Peterson v. Toffton, No. 36,372-CA, 828 So. 2d 160 (La. App., 2nd Cir. 2002).[PDF format]

     Statute of limitations period for filing a habeas petition challenging the validity of a disciplinary action that resulted in a prisoner's loss of good-time credits was tolled (extended) during the time that the prisoner's administrative appeals were pending in the prison grievance process. Foley v. Cockrell, 222 F. Supp. 2d 826 (N.D. Tex. 2002).

Disability Discrimination: Employees

     There was a genuine issue of material fact as to whether a correctional officer was a "disabled person" and was "otherwise qualified" for his position after he was prescribed an anticoagulant drug which made him more susceptible to serious internal or external bleeding if he was physically injured and his physician recommended that he not have contact with inmates. Summary judgment for sheriff's office on officer's disability discrimination claim under Oregon state law was improper. Evans v. Multnomah County Sheriff's Office, No. 0002-01090, A112917, 57 P. 3d 211 (Or. App. 2002).

Drugs and Drug Screening

     Even if, as male correctional officer claimed, female drug testing monitor stood a foot behind him as he provided a urine sample, the manner of collection of the sample was not so intrusive as to be an unreasonable search in violation of the Fourth Amendment. Plaintiff officer, who was terminated as a result of the test results, also failed to show that he had not been selected randomly for the test but instead had been unfairly "singled out" for testing. Booker v. City of St. Louis, #02-1114, 309 F.3d 464 (8th Cir. 2002). [PDF format]

Employment Issues

     Delaware Department of Corrections code which prohibited off-duty personal contact with offenders was not "substantially related" to legitimate state interests in the orderly functioning of the prisons. No evidence showed that terminated female correctional officer's off-duty relationship with a paroled former inmate had "any impact" on inmates or prison staff, but the defendant correctional officials were entitled to qualified immunity because the asserted constitutional right to privacy to cohabit with a former inmate was not "clearly established" law. Via v. Taylor, 224 F. Supp. 2d 753 (D. Del. 2002).

First Amendment

     Federal death row inmate could pursue civil rights action concerning whether prison officials violated his First Amendment rights by restricting his access to the press. The case presented genuine issues of whether the restrictions were based on his death-row status and a desire to suppress his views, rather than to serve legitimate penological interests, and whether prison officials imposed the restrictions in a content neutral fashion. Hammer v. Ashcroft, #01-2898, 42 Fed. Appx. 861 (7th Cir. 2002).

     State prisoner could pursue First Amendment claim asserting that he was subjected to a transfer to a facility farther from his home in retaliation for writing letters to newspapers which were critical of the prison system. State sovereign immunity under Pennsylvania law was no defense to his federal civil rights lawsuit. Owens v. Shannon, 808 A.2d 607 (Pa. Cmwlth 2002).

Medical Care

     A doctor's denial of a prisoner's request for orthopedic sneakers did not constitute a deprivation that was a condition of urgency that could produce degeneration or extreme pain, as required to support an Eighth Amendment claim, despite inmate's claim that state-issued sneakers caused him "unnecessary discomfort." The record showed that the prisoner had been issued a pair of orthopedic boots because of the synovial cysts he had on his feet. Rodriguez v. Ames, 324 F. Supp. 2d 555 (W.D.N.Y. 2002).

     Prisoner did not show that his medical care was inadequate when he received thirteen medical examinations in a one year period, an evaluation to determine whether he needed to be reclassified, and recommendations to treat his muscular back pain with non-prescription medication. A federal civil rights claim over medical care cannot be based simply on a difference of opinion about the treatment offered or even on conduct that might be negligent medical malpractice under state law. Jones v. Norris, #02-2470, 310 F.3d 610 (8th Cir. 2002). [PDF format]

     Prisoner could not pursue federal civil rights claim against optometrist for failing to immediately treat a retinal tear following an injury to his eye when he could not show that the doctor was subjectively aware of his serious medical needs. Despite the seriousness of the subsequent permanently blurred vision and light sensitivity that the prisoner experienced, the doctor did not act with deliberate indifference since he saw no sign of retinal damage during his examination. Jones v. Van Fleit, #01-4303, 49 Fed. Appx. 626 (7th Cir. 2002).

     Pretrial detainee's heroin withdrawal represented a "serious medical need" for purposes of an Eighth Amendment claim and lawsuit by detainee's widow against county presented a genuine issue as to whether the county had a policy of refusing to provide appropriate medications to prisoners undergoing narcotics withdrawal. Gonzalez v. Cecil County, Maryland, 221 F. Supp. 2d 611 (D. Md. 2002).

Prison Litigation Reform Act: "Three Strikes" Rule

     A federal prisoner's prior frivolous habeas petition under 28 U.S.C. Sec. 2241 challenging the conditions of his confinement counted as a strike, under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) precluding an inmate from bringing further lawsuits or appeals as a pauper after three prior frivolous actions. Appeals court denies prisoner's motions to proceed as a pauper in appeals of eight separately dismissed federal cases. Owens-El v. United States, Nos. 02-1281, etc. 49 Fed. Appx. 247 (10th Cir. 2002).

Prisoner Assault: By Officers

     Jury awards $15,555 to prisoner allegedly grabbed and thrown against a wall by a deputy who was escorting him to testify in a court proceeding. The prisoner claimed that the deputy did this to punish him for comments he made in the courtroom and that he was shackled and handcuffed at the time of the incident. Jones v. Seddon, No. 01CV3890 (E.D. Pa. July 15, 2002), reported in The National Law Journal, p. B3 (Sept. 30 2002).

     A prison warden could not be held vicariously liable for the alleged beating of a prisoner by unknown guards during a prison riot, when there was no claim that he was directly involved in the incident or encouraged the guards' alleged actions. Prisoner's claims against four guards allegedly involved were barred by a one-year statute of limitations when he failed to commence the action against them within a year. Coleman v. Dept. of Rehab. & Corrections, #01-3169, 46 Fed. Appx. 765 (6th Cir. 2002).

Prisoner Death/Injury

     A city jail was a "public building" for purposes of a public building exception to governmental immunity under Michigan state law, but an individual detained in the jail was an "inmate" of the jail and therefore not entitled to recover under that exception to the city's statutory immunity from liability. See M.C.L.A. Sec. 691.1406. Additionally, the prisoner's claims that the city jail was "not clean," did not have a place to sit (resulting in her back hurting), and that a telephone was not readily available were not the kind of "structural conditions" required to claim liability under the public building exception. Bobbitt v. The Detroit Edison Company, 216 F. Supp. 2d 669 (E.D. Mich. 2002).

Procedural: Discovery

     A plaintiff prisoner's refusal to answer questions at a deposition was not sufficient to justify the "drastic sanction" of dismissal of his claims when the judicial order authorizing the deposition failed to have any language compelling the plaintiff to answer questions under penalty of dismissal, but rather, only a general statement that "noncompliance" could lead to sanctions. Dawes v. Coughlin, 210 F.R.D. 38 (W.D.N.Y. 2002).

Telephone Access

     Jail's refusal to allow pretrial detainee access to a telephone to arrange for bail after he was placed in disciplinary segregation for violations of jail rules did not violate his Fourteenth Amendment due process rights. The detainee still had the ability to use the mail and to meet with his attorney in relation to bail issues. Simpson v. Gallant, 223 F. Supp. 2d 286 (D. Maine. 2002).


     Annual Report: Florida Department of Corrections 2001-2002 Annual Report (December 2002). Also available: other statistics and publications, including past year annual reports.

     Article: Reforming Prison Contracting: An Examination of Federal Private Prison Contracts By Joseph Summerill. December 2002. (Corrections Today, published by the American Correctional Association)

     Guide to Bureau of Justice Statistics Website: Guide to the BJS Website: Third Edition (December 2002). Reports on the latest updates and additions to materials on the U.S. Department of Justice BJS website. In addition to paper documents, BJS electronically publishes a variety of materials, including statistical graphics and spreadsheets on its website. This report, the third in a series, outlines all of the material available on the website, some not otherwise published. NCJ 187735. Available in PDF format or plain text ASCII format.

     Legal Memoranda and Opinions: Bureau of Prisons Practice of Placing in Community Confinement Certain Offenders Who Have Received Sentenced of Imprisonment, Office of Legal Counsel, U.S. Department of Justice. (Dec. 13, 2002). Overview: "When an offender has received a sentence of imprisonment, the Bureau of Prisons does not have general authority, either upon the recommendation of the sentencing judge or otherwise, to place such an offender in community confinement at the outset of his sentence or to transfer him from prison to community confinement at any time BOP chooses during the course of his sentence."

     Proposed Standards: Abridged Draft of the 4th Edition Performance Based American Correctional Association’s Standards for Adult Local Detention Facilities. [PDF format]. The American Jail Association (AJA), National Sheriffs’ Association (NSA), and the American Correctional Association (ACA) have been working over the past three years to revise the 3rd Edition Standards for Adult Local Detention Facilities (ALDF). More than 50 jail practitioners throughout the country participated in this project and it is now on the web to give others the opportunity to review the draft and make any final suggestions or recommendations on the standards. Comments are solicited to be sent directly to Bob Verdeyen, Director, Standards and Accreditation, American Correctional Association, bobv@aca.org, or mail a hard copy of the standards with your comments to Mr. Verdeyen at the American Correctional Association, 4380 Forbes Boulevard, Lanham, MD 20706-4322. Any comments are requested by May 1, 2003.

     Research Studies: An annotated list of research studies prepared by the New York State Department of Correctional Services during 2002. Topics include "Shock Incarceration Program," "Earned Eligibility Program," "Merit Time Program," "Research on Comprehensive Alcohol and Substance Abuse Treatment," "Research on Psychological Screening Program for Correction Officer Candidates," "Recidivism Research," "Statistical Reports on Inmate Population," "Characteristics of Inmates Discharged," "Unusual Incident Report, January-December 2001," "Inmate Mortality Report 1997-2000," "Inmate Escape Incidents 1997-2001," "Criminal Justice Statistics," "Parole Board Dispositions at DOCS Facilities 2001," "Research on Extent of Substance Abuse in Inmate Population," "Research on the Foreign-Born Inmate Population," "Video Teleconferencing for Deportation Hearings," "The State Criminal Alien Assistance Program," Female Inmates," and "New York State's Victim Notification Program." Also available on the website is a selected listing of earlier research reports prepared during the last decade.

     Regulations & Policies: California State Department of Corrections Regulations & Policies. Also available: Department Operations Manual.[PDF format].

     Regulations & Policies: Texas Department of Criminal Justice Offender Rules and Regulations for Visitation (November 2002).[PDF format]

     Report: Education and Correctional Populations U.S. Department of Justice, Bureau of Justice Statistics (January 2003). Compares educational attainment of State and Federal prison inmates, jail inmates, and probationers to that of the general population. Educational attainment is also examined for various demographic groups -- including gender, race/ethnicity, age, citizenship, and military service -- and for other social and economic factors. Reasons for dropping out of school are compared for jail inmates and the general population. The report describes the availability of educational programs to inmates in prison and jail and their participation in educational and vocational programs since admission. Findings are based on analyses of more than 10 different datasets from both BJS and the U.S. Department of Education. Highlights include the following: 68% of State prison inmates did not receive a high school diploma; About 26% of State prison inmates said they had completed the GED while serving time in a correctional facility. Although the percentage of State prison inmates who reported taking education courses while confined fell from 57% in 1991 to 52% in 1997, the number who participated in an educational program since admission increased from 402,500 inmates in 1991 to 550,000 in 1997. Report is NCJ 19570. Available in PDF format or in plain text ASCII. The tables from the report are also available in spreadsheet format.

     Report: "Dangerous Convictions: An Introduction to Extremist Activities in Prisons," by the Anti-Defamation League (ADL) (July 2002). A discussion of what makes U.S. prisons and prisoners vulnerable to recruitment by fanatic organizations, and how such groups attempt to get around restrictions on their activities in correctional facilities. Includes discussion of specific extremist groups and gangs. [PDF format].

     Reports: The DASIS Report: Drug and Alcohol Treatment in Juvenile Correctional Facilities, Substance Abuse and Mental Health Services Administration, May 2002. [PDF format] This report examines substance abuse treatment in juvenile correctional facilities. See also, The DASIS Report: Substance Abuse Services and Staffing in Adult Correctional Facilities, Substance Abuse and Mental Health Services Administration, October 2002. [PDF format] This report examines treatment services and staffing in adult correctional facilities.

     Standards Manual: Standards Manual published by the Maryland Commission on Correctional Standards (MCCS). [PDF format].

Cross References

Featured Cases:
Defenses: Qualified Immunity -- See also Employee Injury/Death
Defenses: Qualified Immunity -- See also Medical Care
Defenses: Qualified Immunity -- See also Prisoner Restraint
First Amendment -- See also Mail (both cases)
Mail -- See also First Amendment
Religion -- See also Prison Litigation Reform Act: Exhaustion of Remedies (2nd case)

Noted In Brief Cases:

Defenses: Governmental Immunity -- See also Prisoner Death/Injury
Defenses: Statute of Limitations -- See also Prisoner Assault: By Officers (2nd case)
 Drugs & Drug Screening -- See also Medical Care (4th case)
False Imprisonment -- See also Defenses: Procedural
Medical Care -- See also Defenses: Qualified Immunity
Prison Litigation Reform Act: Exhaustion of Remedies -- See also Defenses: Eleventh Amendment Immunity
Prisoner Discipline -- See also Defenses: Statute of Limitations (both cases)
Prisoner Transfer -- See also First Amendment (2nd case)

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