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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 May (web edit.)

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Featured Cases – with Links

Defenses: Absolute Immunity
Disability Discrimination: Prisoners
First Amendment
Inmate Funds
Medical Care (2 cases)
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Discipline (2 cases)
Prisoner Suicide
Religion (2 cases)
Segregation: Disciplinary

Noted in Brief -- With Some Links

Access to Courts/Legal Info
Drugs and Drug Screening
Emotional Distress
Employment Issues (2 cases)
Frivolous Lawsuits
Medical Care (3 cases)
Prison Conditions: General
Prison Litigation Reform Act: Exhaustion of Remedies (3 cases)
Prisoner Assault: By Officer
Prisoner Assault: By Inmates
Prisoner Discipline (3 cases)
Prisoner Suicide
Procedural: Discovery
Religion (2 cases)
Sexual Assault
Sexual Offender Programs
Work/Education Programs




Defenses: Absolute Immunity

Prison disciplinary hearing officers were protected from inmate's federal civil rights lawsuit for damages by absolute judicial immunity for actions they took in the course of their official duties.

     Seeking money damages and equitable relief, a Michigan prisoner sued a correctional officer and several disciplinary hearing officers. He claimed that the correctional officer filed a major misconduct charge against him in retaliation for his filing of a prior lawsuit against her, that one hearing officer improperly found him guilty of sexual misconduct and that a second hearing officer improperly found him guilty of an unrelated misconduct charge for substance abuse.

     While it did not appear that the plaintiff prisoner had exhausted his available administrative remedies before filing suit, the trial court did not dismiss his claims on that basis. Rather, it dismissed the claims against the correctional officer on the basis that, whatever the officer's motivation for bringing the misconduct charge against him, the prisoner could not proceed with a claim for money damages when the conviction for the offense had not previously been "reversed on appeal, expunged by executive order, declared invalid by a state tribunal, or has otherwise been called into question by a federal court's issuance of a writ of habeas corpus," as required by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997).

     Even to the extent that the prisoner "has asserted a pure retaliation claim," the court commented, he still fails to state a claim against the correctional officer because he was convicted of the sexual misconduct charge. "A finding of guilt based upon some evidence of a violation of prison rules 'essentially checkmates [a] retaliation claim."

     The appeals court further ruled that the claims against the hearing officers were also properly dismissed because "they are entitled to absolute judicial immunity from inmates' Sec. 1983 civil rights suits for actions taken in their capacities as hearing officers. Additionally, the plaintiff prisoner cannot "collaterally challenge his misconduct convictions," so that Heck and Balisok also barred his claims against the hearing officers for damages.

     Clemons v. Cook, No. 02-1724, 52 Fed. Appx. 762 (6th Cir. 2002).

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

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Disability Discrimination: Prisoners


Attorneys' fee award limitations contained in Prison Litigation Reform Act did not apply to a fee award to prevailing plaintiff prisoners under the attorneys' fee sections of the Americans with Disabilities Act (ADA) and Rehabilitation Act. Prevailing plaintiffs in disability discrimination lawsuit against California correctional officials were also entitled to fees for work their lawyers did in separate litigation defending a judgment on a similar issue from another federal appeals court on review before the U.S. Supreme Court.

     In reaction to a lawsuit brought challenging California's treatment of disabled inmates and parolees, a number of defendant officials stipulated that adequate emergency evacuation plans for disabled prisoners were lacking in some facilities, that a smaller range of vocational programs were available to disabled prisoners than to non-disabled prisoners, and that sentence reduction credits had been improperly denied to some disabled prisoners. They asserted, however, in a summary judgment motion, that the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101, and the Rehabilitation Act, 29 U.S.C. Sec. 794, did not apply to state prisoners, and that the defendant state officials were immune from liability under the Eleventh Amendment.

     The trial court denied the defendants' motions and issued a remedial order and injunction, which was upheld by a federal appeals court. The defendants filed a petition for review (certiorari) in front of the U.S. Supreme Court in this and a related case. While that petition was pending, other petitions for review were filed with the U.S. Supreme Court which raised the same issue of whether the federal disability discrimination statutes applied to state correctional facilities.

     The U.S. Supreme Court granted review in one of the other cases, Yeskey v. Penn. Dept. of Corr., 118 F.3d 168 (3d Cir. 1997) (holding that ADA does apply to state prisons), aff'd. sub nom Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), but not in the California cases. The attorneys in the California case were asked to represent the plaintiffs in Yeskey before the U.S. Supreme Court, and successfully did so.

     Since the issue was the same--whether federal disability statutes applied to state correctional facilities, their actions in Yeskey protected the result in the California case also. Shortly before trial in the California case, the trial court allowed the plaintiffs to add a claim for due process violations under 42 U.S.C. Sec. 1983. At trial, the California Board of Prison Terms (BPT) was found liable for violations of the ADA, the Rehabilitation Act, and the due process clause of the constitution. The main elements of the trial court's decision and injunction were upheld by a federal appeals court in Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001).

     The trial court also awarded attorneys' fees and costs to the plaintiffs as prevailing parties. The defendants appealed four separate orders awarding fees and costs for litigation and for monitoring the defendants' compliance with the injunctions.

     The orders appealed from were:

     * An award against the defendants of attorneys fees for the work the plaintiffs' lawyers did, not in the immediate litigation, but in their work in litigating Yeskey before the U.S. Supreme Court, on which the court awarded $108,352.38. The defendants argued that these fees should be limited by a provision in the Prison Litigation Reform Act (PLRA) that limits attorneys' and paralegals' fees in certain actions brought by prisoners, 42 U.S.C. Sec. 1997e. The Defendants also argued that, even if the PLRA did not apply to the ADA and Rehabilitation Act, it does apply to the Sec. 1983 claim, and that the fees awarded exceed what would have been necessary to file an amicus brief in Yeskey.

     * An award of the full amount of fees requested by the plaintiffs for fees for the first quarter of 2000 in the portion of the case against the California Department of Corrections. The defendants argued that the PLRA limit on attorneys' and paralegals' fees should apply.

     * An award of the full amount of attorneys' fees requested by the plaintiffs arising from pre-judgment litigation and from monitoring the BPT's compliance with the injunctive order during the first quarter of 2000. The defendants made the same points here about the PLRA limits, as well as several smaller objections.

     * An award of the full amount of fees requested by the plaintiffs arising from post-judgment work performed.

     Upholding the trial court's decisions, a federal appeals court ruled that the work that the plaintiffs' counsel did in the Yeskey case before the U.S. Supreme Court was worthy of a fee award in the immediate case since the work was reasonably necessary to the interest of their clients.

     The appeals court rejected the argument that the PLRA limits on attorneys' fee awards applied to the claims under the two federal disability discrimination statutes, both of which have their own separate attorneys' fee provisions. The court noted that 42 U.S.C. Sec. 1988, which is limited by the PLRA, provides a list of the statutes to which its attorneys' fees provision applies, and that neither the ADA nor the Rehabilitation Act is on the list.

     The appeals court rejected the argument that the trial court abused its discretion by failing to limit a portion of the attorneys' fee award by attempting to attribute a portion of the work to the separate Sec. 1983 due process claim, since the "tertiary Sec. 1983 claim required no additional discovery or witnesses at trial, "and the arguments support it so overlapped" with the disability discrimination claims as to make "discrete time allocation and billing challenging."

     Armstrong v. Davis, #01-15779, 318 F.3d 965 (9th Cir. 2003).

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

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First Amendment

Ban on possession of electric or electronic instruments in federal prisons (except for use in religious activities) did not violate prisoners' First Amendment rights. Bureau of Prisons acted reasonably in interpreting a statute barring the use of appropriated federal funds "for use or possession" of such instruments as allowing a prohibition on the possession of the items.

     Two federal prisoners (a former inmate and a current inmate) claimed that a Bureau of Prisons' decision to ban the possession of electric or electronic musical instruments (with the sole exception of those used in connection with religious activities) violates their right to equal protection and free expression under the First Amendment as well as the Bureau of Prison's statutory authority under the Administrative Procedure Act.

     Upholding the ban, a federal appeals court held that the BOP reasonably interpreted a federal statute prohibiting the use of any appropriated federal funds for the use or possession of such instruments as allowing a prohibition on their possession by inmates in federal facilities.

     The statute in question, known as the Zimmer Amendment, was first enacted in 1996 as section 611 of the Omnibus Budget Act of Fiscal Year 1997, Pub. L. No. 104-208, 110 Stat. 3009, Sec. 611, and prohibits the use of appropriated funds to provide for a number of enumerated "amenities or personal comforts in the federal prison system," including "the use or possession of any electric or electronic musical instrument," in-cell television viewing except for prisoners segregated from the general population for their own safety, the viewing of R, X, and NC-17 rated movies, in-cell coffee pots, hot plates, or heating elements, and any instruction (live or through broadcasts) or training equipment for boxing, wrestling, judo, karate, or other martial art, or any bodybuilding or weightlifting equipment of any sort.

     The appeals court also rejected the argument that the ban implicated the First Amendment rights of prisoners to freely express themselves, since Congress was not required to fund the exercise of those rights by incurring costs for electricity, storage of instruments, and supervision of their possession and use.

     Further, even if the rule banning the possession of electric or electronic instruments did implicate First Amendment rights, the court held, that rule did not "impermissibly infringe" on those rights. The ban was reasonably related to a legitimate interest in conserving limited correctional funds. Prisoners had access to viable alternative means of expression, including their voices and acoustic instruments.

     Kimberline v. U.S. Department of Justice, No. 01-5387, 318 F.3d 228 (D.C. Cir. 2003).

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

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Inmate Funds

Prisoner's rights were not violated by the withdrawal of all funds from his inmate trust account when all withdrawals were pursuant to court orders to pay debts he incurred filing multiple legal actions. Withdrawal of funds did not interfere with his access to the courts, nor did it make him a "slave," as he subsequently demonstrated by quitting his job and remaining confined to his cell during working hours.

     A Michigan prisoner appealed a trial court decision dismissing his civil rights lawsuit complaining that defendant prison officials improperly withdrew funds from his prison account based upon court orders. Further, when he quit his prison job in September 2000 because he refused to work when his wages were deducted to pay his debts, he claimed that the defendants subjected him to a disciplinary action and a "fraudulent classification report."

     The appeals court upheld the trial court's decision.

     It rejected the prisoner's argument that the deduction of 100% of his prison wages to pay his debts for court filing fees and costs violated his due process rights. These withdrawals were all carried out in response to ten separate court orders requiring that the funds be withdrawn from his account to pay fees and costs incurred in his filing of multiple legal actions. These withdrawals were for the inmate's benefit, to pay his debts, the court noted, and did not violate his rights.

     The appeals court also rejected the argument that the withdrawals denied him access to the courts. He did not show that he suffered an actual litigation related injury or prejudice as a result of the withdrawal of the funds, and the right of access to the courts is "not unrestricted and does not mean that an inmate must be afforded unlimited litigation resources."

     Indeed, the court pointedly commented, "the existence of this very appeal establishes that he is not being deprived access to the courts. The argument is meritless."

     The court found no evidence that the withdrawals or any other actions were carried out for retaliatory purposes, and further rejected the argument that the loss of the funds subjected the prisoner to "cruel and unusual punishment," since he had not shown that he was deprived of any of life's necessities. He "chose to incur the debts for multiple court actions and he must now pay for his voluntary actions."

     Finally, the court found meritless the argument that the withdrawals rendered the prisoner a "slave to the state of Michigan." It noted that when he chose to voluntarily quit his prison job, pursuant to prison policy, he was confined to his cell during working hours. He "is not forced to work. He chose to work and the money he earned from his employment went to pay his debts."

     Erdman v. Martin, No. 02-1302, 52 Fed. Appx. 801 (6th Cir. 2002).

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

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Medical Care

Diabetic prisoner did not have to present expert affidavit to pursue a New Jersey state law medical malpractice claim based on a stroke he suffered after prison medical authorities failed to provide him with insulin within twenty-one hours of his incarceration. No specialized knowledge was required for a jury to determine whether medical personnel acted negligently. Trial court also improperly granted summary judgment on prisoner's federal civil rights claim for deliberate indifference to his serious medical needs.

     A New Jersey prisoner suffering from diabetes had a stroke after his incarceration, when prison medical personnel failed to administer insulin to him within twenty-one hours of his confinement. He filed a lawsuit asserting claims for both state law medical malpractice (negligence) and violation of his federal civil rights on the basis of deliberate indifference to his serious medical needs.

     The trial court dismissed the malpractice claim, finding that New Jersey state law required that the plaintiff present expert witness testimony or an expert's affidavit to establish the standard of medical practice which the defendant failed to follow. It also granted summary judgment to the defendant New Jersey Prison Health Service (PHS) because the prisoner allegedly had failed to show any evidence of an official policy or custom which caused the alleged deprivation.

     A federal appeals court has reversed both rulings.

     On the issue of the medical malpractice claim, it found that New Jersey law allows a jury itself to decide the applicable standard of care when their "common knowledge" as lay persons is sufficient to enable them, "using ordinary understanding and experience," to determine the defendant's negligence without the aid of experts. In this case, the court found, an expert's affidavit was not needed for the case to proceed, because the issue of whether the defendant failed to administer insulin to the prisoner in a timely manner could be determined with the benefit of "specialized knowledge." The plaintiff claimed, the court noted, that the medical personnel at the prison did not call his treating physician to determine how often he required the administration of insulin, and further, that they didn't even ask him.

     The appeals court also found that there was a factual question as to whether the alleged actions of the employees of the PHS in failing to administer the insulin to the prisoner in a timely manner could be "attributed" to the PHS, so that summary judgment on the federal civil rights claim was also inappropriate.

     While there was no evidence that PHS had an "affirmative policy or custom that prevented its employees from inquiring into the frequency with which" the prisoner required insulin, there was evidence that PHS "turned a blind eye to an obviously inadequate practice that was likely to result in the violation of constitutional rights."

     One PHS employee testified that the policy for screening inmates was that a medical assistant would inquire about an incoming inmate's medication needs, and write those needs in the inmate's records, but "was not otherwise required to pass on that information," and "no one could provide an inmate with medication without having first obtained an order from a doctor." In light of the fact that there was no requirement that a doctor see an inmate during the first 72 hours of incarceration, and that "no one was charged with determining whether an inmate should be seen by a doctor earlier in the 72-hour period," there was no policy ensuring that an inmate "having need of medication for a serious medical condition would be given that medication during the first 72 hours of his incarceration."

     If true, this could be a basis for a jury determination that PHS was deliberately indifferent to the risk to inmates like the plaintiff, the court reasoned.

     Natale v. Camden County Correctional Facility, No. 01-3449, 318 F.3d 575 (3rd Cir. 2003).

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

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Forcible administration of anti-psychotic medication on twenty-two occasions did not violate the rights of paranoid schizophrenic prisoner when it was only done in emergency situations when he exhibited behavior that was dangerous to himself or others.

     An inmate in a Maryland maximum security correctional facility filed a federal civil rights lawsuit challenging the forcible administration of anti-psychotic medication to him on twenty-two separate occasions. The lawsuit also asserted purported claims for violation of the Maryland state constitution and Maryland common law.

     A federal appeals court has upheld summary judgment for the defendant correctional officials.

     The court found no violation of the prisoner's due process rights. The prisoner, who had been diagnosed with paranoid schizophrenia, was only forcibly medicated in emergency situations, the court noted, such as when he exhibited behavior that was dangerous to himself or others.

     Evidence in the case demonstrated that, on various occasions, the prisoner flooded his cell, pounded on the walls with his bed frame, rattled loose bolts on the plumbing, and threw urine and feces at others. The state Department of Public Safety and Correction Services had a written policy providing that psychiatric illness could be medicated, over objection, if such treatment was for the health and safety of the inmate or others and was "clinically appropriate."

     In this case, on each occasion when emergency medication was given to the prisoner, it was deemed medically necessary and ordered by a psychiatrist who was either present or contacted by phone. The prisoner did not dispute the specifics of the "factual underpinnings of his medications," the court noted, but merely asserted that he "disagreed" with each reason given "to forcibly inject me without my consent." He also claimed that he "was never a danger to [himself] or anyone else."

     On the record presented, the appeals court found, the inmate's own denial that he was dangerous failed to create an issue of material fact, in light of the other evidence present. "He presented no medical evidence contradicting the judgments of the medical professionals and, in the absence of such evidence, he was unable to create a triable issue."

     Dancy v. Gee, No. 00-7482, 51 Fed. Appx. 906 (4th Cir. 2002).

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

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Prison Litigation Reform Act: Exhaustion of Remedies

Prisoner's lawsuit against prison officials for failing to protect him against assault by other inmates should not have been dismissed for failure to exhaust administrative remedies despite the fact that he never filed an administrative grievance, when prisoner was told by officials that he had to "wait" until their "investigation" was finished, and he was not informed, months later, that it had ended.

     A non-smoking prisoner in a Pennsylvania facility claimed that a group of other prisoners attacked and injured him because he was using the small, single-toilet, cafeteria bathroom when they wanted to smoke. He further claimed that the prison officials' failure to enforce their previously adopted "no smoking" policy caused his injuries, and that they then were deliberately indifferent to his medical needs after he was injured.

     The prisoner's federal civil rights claim that the prison failed to protect him from assault was dismissed for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e.

     Overturning this result, a federal appeals court noted that the statute does not require exhaustion of "all" administrative remedies, but rather "only those remedies that are available." Therefore, the failure to exhaust administrative remedies is an "affirmative defense" that defendants must "plead and prove."

     In this case, the court found, the dismissal of the prisoner's lawsuit for failure to exhaust available administrative remedies was improper, despite the fact that he did not file a formal administrative grievances on his claims of failure to protection and indifference to his medical needs.

     The prisoner alleged that he asked to file a complaint, but that prison officials told him that he had to "wait" until after their investigation of the alleged incidents was complete. Months later, he was not informed that the investigation had ended.

     The court found insufficient evidence to find that the prisoner failed to exhaust available administrative remedies. Indeed, the defendants conceded that their failure to exhaust argument "would have no merit if" the prisoner was told to wait until the security investigation was complete before filing a grievance.

     The prisoner's argument in this case was not based on a supposed "futility" in pursuing available administrative remedies, but rather that the defendants, in advising him to wait until the conclusion of their investigation before pursuing a grievance rendered the formal grievance procedure "unavailable" to him.

     While there was an unresolved factual question as to whether the prisoner was given these instructions, this question rendered improper summary judgment for the defendants or dismissal of the prisoner's claims.

     Brown v. Croak, No. 01-1207, 312 F.3d 109 (3rd Cir. 2002).

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

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Prisoner Discipline

Disciplinary process that found inmate guilty of possessing anti-depressant drugs not prescribed for him by the medical staff did not violate his due process rights. Prisoner was provided written notice of the charges, and he waived the opportunities to present witnesses or to be represented during the hearing.

     An inmate at a federal medical center was charged with possession of anti-depressant drugs not prescribed by the medical staff. The incident report indicated that an officer conducting a search of his room found in his bedstand drawer a jar labeled "Flax Oil 1000," which contained 160 pills labeled "Mylan 6410." These pills were determined to be Doxepin 100 mg, an antidepressant.

     At a disciplinary hearing, the prisoner stated that the medication had been prescribed for him by doctors at two prior facilities, and that he had not taken the pills as given, but had kept some instead. The hearing officer found that the fact that the pills were in a mislabeled jar showed that the prisoner was attempting to disguise his possession of prescription pills, which he possessed in sufficient number to cause a fatal overdose to him, and that if he wanted to reduce his medication, he should have done so through his doctors, not by "hoarding the controlled medication."

     The prisoner was sanctioned with loss of 40 days good-conduct time, and 30 days of disciplinary segregation, which was suspended pending 180 days of clear conduct.

     He filed suit challenging the discipline. A federal appeals court found that the prisoner's procedural due process rights were not violated.

     The record showed that the prisoner received a written notice of the charges against him, and he waived, through a signed written form, his right to call witnesses and to have a representative present during the hearing. Afterwards, he received a written report of the decision, setting forth the specific evidence relied on and the reason for the sanctions imposed.

     There was no evidence that the waivers were involuntary, and the disciplinary process utilized complied with the scheme set forth in the federal regulations, 28 C.F.R. Sec. 541.11, Table 1, [PDF], including the preparation of an incident report, the conducting of an investigation, the initial hearing before the disciplinary committee, the hearing before the disciplinary hearing officer, and the appeals process.

     The appeals court agreed that the hearing officer's substitution of "not authorized" for "not prescribed" did not alter the fact that there was "some evidence" to support the charge that the prisoner possessed drugs not prescribed for him by the medical staff. The prior prescriptions were for him to take the pills supplied, but he kept them instead. "He has not shown that he had any prescription which would have allowed him to accumulate and store a potential overdose of pills."

     Allen v. Reese, #02-2337, 52 Fed. Appx. 7 (8th Cir. 2002).

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

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Warden of West Virginia prison lacked authority to prohibit prisoners from applying for the restoration of good time credit until two years preceding their discharge date. Court also finds that failure to provide prisoners charged with disciplinary offenses with detailed notices of formal charges within a reasonable period of time would violate due process rights.

     Five West Virginia prisoners confined at a state correctional center filed a lawsuit seeking relief for alleged injustices committed by correctional officials at the facility. Specifically, they challenged the prison's procedures for restoring good time credit that had been revoked in connection with disciplinary violations, and notifying prisoners of alleged disciplinary violations.

     The state Supreme Court has granted a writ of mandamus.

     It noted that a state statute, W. Va. Code Sec. 28-5-27(f), grants the Commissioner of Corrections the sole authority to promulgate disciplinary rules for the state's correctional institutions, including the power to approve requests to restore an inmate's previously forfeited good time credit.

     The plaintiffs contended that the warden of their facility had prohibited them from applying for the restoration of good time credits until two years preceding their discharge date. The court found that the warden was without authority to impose this restriction, and further, that this restriction was arbitrary and capricious, lacking any rational basis and therefore violative of the right to due process of law.

     The plaintiff prisoners also contended that, in their facility, prisoners did not receive timely notice of the charges levied against them and that the written statement of charges contained in the violation reports did not adequately inform them of the disciplinary rule violation with which they had been charged. Addressing this issue, the court noted that prison disciplinary proceedings must satisfy certain due process requirements:

     A hearing is not meaningful, the court noted, if a prisoner is given inadequate information about the basis of the charges against him. The court found that it appeared that "substantial delays have occurred between an inmate's commission of a disciplinary violation and his receipt of a notice formally charging him therewith."

     Some of these notices, as delivered to the plaintiff prisoners, lacked "certain critical information regarding the exact nature of the offense committed, the precise date of the violation cited, and the identity of other individuals alleged to have participated in such misconduct."

     While "scrupulous attention to detail" might not be necessary, "it is apparent that basic details about the alleged violations that are required to be included in the initial incident report have been omitted from the formal charges contained in the subsequent violation report."

     The court ruled that "notice of alleged disciplinary violations must be provided to the charged inmate within a reasonable time of the occurrence giving rise to such disciplinary proceedings and should be stated with such specificity as to permit the inmate to understand the nature of the charge(s) against him/her."

     State Ex Rel. Williams v. Dept. of Military Affairs, No. 30407, 573 S.E.2d 1 (W. Va. 2002).

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

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Prisoner Suicide


Correctional officials' interest in preventing suicide and preserving life, as well as maintaining order and discipline, outweighed a hunger-striking prisoner's right to privacy, resulting in a right to force-feed the prisoner.

     An Illinois state prisoner had numerous health problems, including obesity, coronary artery disease, hypertension, asthma, degenerative arthritis, and obstructive sleep apnea. He was transferred to a new facility for medical reasons, and had a tracheostomy tube which was scheduled to be replaced. His new facility was maximum security and afforded fewer privileges to inmates than where he was housed previously. Within a few weeks of his transfer, he became "obstinate, insulting, and threatening," refusing all medical care.

     A psychiatrist evaluated him twice, and found that he was competent to refuse medical treatment. He was placed in segregation within the health-care unit for refusing orders and for engaging in threatening and intimidating behavior. He also lost good-time credit as a result, extending his discharge date. He then began a hunger strike, indicating that he was protesting his transfer to the facility, objecting to having his tracheostomy tube replaced while in custody, and claiming that he was being wrongfully detained beyond his discharge date.

     He announced that he would continue his hunger strike until he was sent back to his former facility, was released, or died. The Illinois Department of Corrections filed an emergency motion seeking authority to use reasonable and necessary force to monitor the prisoner's health and, if necessary, to administer life-essential nutrition.

     The court granted a temporary order requiring that the prisoner submit to a blood draw, an electrocardiogram, and a check of his vital signs, without granting any further authorization. After further proceedings, the trial court entered an order finding that the Department's "interests in preserving life, preventing suicide, and maintaining the orderly administration of its correctional institutions outweighed defendant's right to privacy."

     Accordingly, the trial court authorized the Department to monitor the prisoner's health and to administer nutrition intravenously or through the use of nasogastric or jejunostomy tubes, and the prisoner appealed the order. The order was amended to include the use of PEG tube, a less-invasive approach, to administer nutrition to the prisoner, and the prisoner again appealed.

     While the appeals, which were consolidated, were pending, the prisoner was released from prison, so that it was no longer the Department's responsibility to provide medical care or nutrition, thereby technically rendering the case moot. Despite that, both parties requested that the court retain jurisdiction and decide the issue, and it agreed to do so.

     The appeals court found that the order to allow the Department to force-feed the prisoner did not violate his constitutional rights. It noted that when a prison regulation impinges on an inmate's constitutional right, the regulation is valid if it is reasonably related to legitimate penological interests.

     The prisoner did not claim that his hunger strike was an expression of his right to free speech or religion. "It would appear defendant's main purpose in refusing nutrients was to manipulate the system. Defendant claims that forcing him to take in nutrients is a violation of his right to privacy."

     While force-feeding a prisoner may indeed violate his right to privacy, "that right is outweighed by the Department's interests in the administration of our penal system," the court found. The legitimate objectives included the preservation of life, the prevention of suicide, and the enforcement of "prison security, order, and discipline." The court not only acknowledged those interests of the Department, but also held that "they are superior to the constitutional rights asserted by defendant in this case."

     While in custody, the court stated, a prisoner's privacy right "must be balanced against the Department's interest in maintaining an orderly and disciplined institution." Finding that the Department's interest in prison administration "is the controlling factor here," the court held that "the Department may force-feed a hunger-striking inmate, whose only purpose is to attempt to manipulate the system so as to avoid disruptive or otherwise detrimental effects to the orderly administration of our prison system."

     The appeals court decision was reached with a 2-1 majority, with a strong dissent by one judge arguing that there was no evidence that the prisoner's conduct had disrupted the prison or raised security issues, so that his right to refuse nutrition should be respected. "The right to die--if he chooses to do so quietly and without disruption--is a civil liberty he retains. [...] If the government wishes to take that liberty from him, it must explain and persuade. It cannot just speculate that something bad may happen."

     People ex. Rel. Department of Corrections v. Millard, Nos. 4-01-0857, 782 N.E.2d 966 (Ill. App. 2003).

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

     Editor's Note: Other courts that have reached similar results include In re Soliman, 134 F. Supp. 2d 1238 (N.D. Ala. 2001); In re Grand Jury Subpoena John Doe, 150 F.3d 170 (2d Cir. 1998); State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358 (N.D. 1995); Commonwealth v. Kallinger, 134 Pa. Commw. 415, 580 A.2d 887 (1990); In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984); State ex rel. White v. Narick, 170 W. Va. 195, 292 S.E.2d 54 (1982); and In re Von Holden, 87 A.D.2d 66, 450 N.Y.S.2d 623 (1982). The Georgia Supreme Court, to the contrary, upheld a trial court decision disallowing state interference with a prisoner's hunger strike, engaged in to "get the attention of the prison officials," finding that the state had not shown "such a compelling interest in preserving" the prisoner's life as would override his right to refuse medical treatment. Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982). For a general discussion of the issue see S. Bennett, The Privacy & Procedural Due Process Rights of Hunger Striking Prisoners, 58 N.Y.U. L. Rev. 1157 (1983).

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Federal prison did not violate the rights of a Jewish inmate by requiring that he fill out and submit a standard form in order to receive a kosher diet. Prison officials were also entitled to qualified immunity from liability, particularly as they were reasonably relying on a federal regulation governing requests for special religious diets.

     An Orthodox Jewish prisoner confined to a federal penitentiary in California asserted that his faith required him to maintain a kosher diet. He filed a federal civil rights lawsuit asserting that he was denied such a diet, and challenging a requirement that he must submit an application form in order to receive it. The facility in which he was incarcerated, like all other federal prisons, accommodates the religious dietary needs of its inmates through the "Common Fare Program" (CFP), 28 C.F.R. Sec. 548.20(a). The general parameters of the program are set forth in the federal Bureau of Prisons' Program Statement Number 4700.04, [PDF], which was issued on October 7, 1996, providing that the "Chaplain is the approving official for inmate participation and removal in the Common Fare Program."

     The CFP "provides inmates requesting a religious diet reasonable and equitable opportunity to observe their religious dietary practice within the constraints of budget limitations and the security and orderly running of the institution and the Bureau through a common fare menu."

     The program requires inmates to provide a written statement "articulating the religious motivation for participation." Each inmate at the prison is supplied with details about the program upon admission and orientation to the prison, including a handout which discusses religious diets and the need to submit an included application form to participate. Ordinarily, once an inmate's request is approved, they begin receiving the specialized diet within two days.

     The plaintiff prisoner never submitted the required application, but instead wrote letters to prison officials and to the chaplain requesting kosher food. The letters he submitted as proof of this in his lawsuit were dated 16 months after he was first incarcerated. In response, he was told to "please see one of the chaplains and fill out an application for inclusion in this program."

     The prisoner, instead of filling out the application even then, filed his lawsuit, contending that unnamed prison officials had violated his right to free exercise of religion by denying him kosher meals. He subsequently amended his complaint to name particular officials.

     A federal appeals court upheld summary judgment for the defendants in the lawsuit.

     Any contention that the meals provided in the CFP were not sufficient to meet kosher standards were rejected, the appeals court noted, since the prisoner never applied to participate in the program. He did not show that applying to the program would have been "futile" in meeting his needs, as prison officials had assured him that, after he applied, they would "work with him" to see that his requests were "appropriately" addressed. The court also noted that there was at least one inmate at the facility, participating in the program, who was receiving a "completely kosher diet."

     Even "clearly established rights" such as the right to a kosher diet for religious purposes is subject to "reasonable limitations in the prison context." The requirement that the prisoner fill out and submit a standard prison form applying for the religious diet was not unreasonable. Indeed, the form "provides an opportunity for the chaplain to assess the sincerity of the applicant's belief, and most important, provides a standardized form for each inmate seeking accommodation, thereby aiding in the administration of the program--no small matter in a prison" with over 1,800 inmates.

     The right the plaintiff sought, the appeals court reasoned, was not the "right to a kosher diet, but rather" his "right to a kosher diet without having to file the standard application." To accommodate this request, the court found, "would be to frustrate the orderly administration" of the CFP and of the prison generally by effectively eliminating the requirement of an application form.

     The appeals court noted that, since there was no constitutional violation, there was no necessity for further inquiries concerning qualified immunity. Nevertheless, it further found that even if it found a constitutional violation, the defendant officials would be entitled to qualified immunity in this case, as they were reasonably relying on 28 C.F.R. Sec. 548.20(a), as elaborated in P.S. 4700.04 and prison regulations. "When a public official acts in reliance on a duly enacted statute or ordinance, that official ordinarily is entitled to qualified immunity."

     Resnick v. Adams, No. 01-56710, 317 F.3d 1056 (9th Cir. 2003).

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Prisoner seeking to practice religious Taoism was not likely to prevail on his claims that he had been denied the opportunity to do so or denied equal opportunities with those provided to prisoners of other religions. Plaintiff prisoner had failed to cooperate with prison officials' attempts to determine what the "essential practices" of his religion were.

     A New Hampshire inmate sued correctional officials, claiming that they have denied him the right to freely exercise his Taoist religious beliefs. He sought an injunction against the defendants depriving him of the ability to hold Taoist religious celebrations, initiatory rites, and festivals, as well as an order requiring the facility to permit him to obtain certain religious articles, a religious diet, and an exemption from the prison shaving requirement. He also sought an order requiring the prison to allow him to practice Tai Chi Chuan ("Tai Chi"), which has become a martial art as well as part of spiritual or religious Taoist training.

     The defendant correctional officials contended that they had not denied the plaintiff prisoner any rights, but instead that the prisoner had refused to comply with the prison's legitimate efforts to substantiate his claims that the certain religious items are essential to the practice of his religion. In particular, he had not completed inmate request forms specifying the religious ceremonies, festivals, and initiatory rites that he seeks to perform. Further, the prison places "reasonable limits" on the practice of Tai Chi in that inmates are prohibited from practicing martial arts moves for security reasons. Finally, the prison stated that it is providing the prisoner his desired religious diet.

     Denying the prisoner's motion for an interim injunction, the trial court found that the evidence to this point showed that the prisoner was "not likely" to prevail on his claims that he had been denied the opportunity to practice his religion.

     There was testimony by the prison chaplain that the facility places limits on the inmates' exercise of religion in prison, one of which is that an "inmate must be able to substantiate a claim that a particular religious practice or article is essential to his religion through a verifiable outside source." Accordingly, the prisoner was asked to answer eleven questions on behalf of the Taoist group, including what the basic teachings of the faith group are, whether the faith has ministers or teachers, what religious holidays are celebrated and what religious practices are necessary for the observance, what religious items are necessary and what is their religious significance, whether there are time and place requirements for the group, whether the religion is open to all inmates, etc. The chaplain stated that he derived the eleven questions from a Federal Bureau of Prisons questionnaire regarding new or unfamiliar religious groups.

     The court did not find this unreasonable. "Unlike Christianity, Judaism, or Islam, religious Taoism has relatively few adherents in the United States," it said, with possibly only 30,000 in North America. The plaintiff, the court found, had not complied with the prison's "reasonable attempts to substantiate his claim that the practices he seeks to engage in are essential to the practice of his religion."

     The law, the court noted, does not require the prison to permit the prisoner to have "any religious article, ceremony, or festival as he, and he alone, sees fit." Rather, the law requires that it allow him a "reasonable opportunity to exercise his religion comparable to the opportunity afforded to other inmates." In this case, the prisoner has not demonstrated that he is being deprived of any specific practices that he "has demonstrated are essential to the practice of religious Taoism."

     The court also noted that the prison scheduled two to four hours of meeting time per week for Taoist inmates at the prison since the group was first recognized. This was an amount of group time comparable to other religious groups, and a brief suspension over concern that the group was practicing martial arts was lifted subject to a restriction on physical contact. While the plaintiff contended that "Christian" groups were given more meeting time than the Taoists, he failed to differentiate between the various sects within the Christian faith. The court thought it apparent that the time allocated for the Jehovah Witnesses group, the Catholic group, and the Spanish Bible group, for example, should "not all be counted together because the inmates within those various groups have different religious needs."

     The court also found reasonable the prison's decision to restrict aspects of Tai Chi which constitute martial arts, while allowing "breathing exercises and meditation involving physical movement."

     The prisoner had also failed to clearly identify which property items were essential to his religious beliefs or that facial hair is required or central to religious Taoism.

     Adams v. Stanley, 237 F. Supp. 2d 136 (D.N.H. 2003).

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Segregation: Disciplinary

Prisoner's placement in segregation for three days after being found guilty of a disciplinary charge of making threatening statements did not implicate a protected liberty interest, since it was not an "atypical and significant hardship." No basis found for prisoner's race discrimination claim.

     A Tennessee state prisoner filed a federal civil rights lawsuit alleging that his supervisor at his prison food service job falsely accused him of making threatening statements in order to retaliate against him for filing a grievance over an incident in which the supervisor allegedly ordered him to retrieve rotten food from the garbage to serve to the inmates.

     He was found guilty of a disciplinary violation and placed in segregation for three days. He claimed that he then signed papers agreeing to accept a written warning only because the segregation cell was "uncomfortably cold," and did not allege that the conviction cost him any "good-time" credit.

     Upholding the trial court's dismissal of the lawsuit, a federal appeals court found that the plaintiff's placement in segregation for three days did not give rise to a protected liberty interest, since the restrictions imposed did not constitute an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," or affect the duration of his confinement.

     Even if the disciplinary action were found to affect the duration of the prisoner's confinement, the court noted, he still could not pursue a claim for damages when the disciplinary conviction had not previously been set aside.

     Finally, the appeals court found no evidence to support the plaintiff prisoner's race discrimination claim, rejecting the argument that he was targeted because he was African-American, while white inmates were allowed "to steal and get away with anything anytime." Some factual "basis for such claims must be set forth" before they can be addressed, the court noted.

     Adams v. Jones, No. 02-5472, 52 Fed. Appx. 744 (6th Cir. 2002).

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Noted In Brief

Access to Courts/Legal Info

     Prison "mailbox" rule applied to prisoner's federal civil rights complaint concerning his alleged assault in a county jail, so that it was considered filed in a timely manner when it was placed in the prison mail system on the last day of the statute of limitations, despite the fact that it was not received by the federal trial court until five days after the statute of limitations expired. Sulik v. Taney County, Missouri, No. 02-1397 316 F.3d 813 (8th Cir. 2003). [PDF]

Drugs and Drug Screening

     Any questions regarding the chain of custody of the prisoner's urine samples, which was the basis for the finding that he violated prison disciplinary rules prohibiting the use of controlled substances twice, were sufficiently explained in the course of the testimony presented at the disciplinary hearing. The prisoner's claim that the hearing officer was biased was similarly without merit. Montalbo v. Selsky, 752 N.Y.S.2d 920 (A.D. 2003).

Emotional Distress

     California prisoner could pursue claims for intentional infliction of emotional distress and negligence against state and state employees for diagnosing him as having tuberculosis when he was actually suffering from lung cancer. State of California v. Superior Court (Bodde), 130 Cal. Rptr. 2d 94 (Cal. App. 5th Dist. 2003).

Employment Issues

     Security guard fired by Mississippi Department of Corrections had the burden on appeal of showing that conduct which was the basis for his termination, assaulting and injuring several inmates during a fight and falsifying records, had not occurred. Decision by Employee Appeals Board which reinstated guard was reversed as "arbitrary and capricious" when there was evidence that he took a handcuffed prisoner into an ice room and beat him, as well as a fellow officer's observation of him "driving" another prisoner's head into a wall. Mississippi Department of Corrections v. Harris, No. 2001-CC-004223-COA, 831 So. 2d 1190 (Miss. App. 2002). [PDF]

     Arbitrator could properly find, under the terms of a collective bargaining agreement, that the firing of a clerk-typist from a position at a county jail for bringing Playgirl magazine to work was not supported by just cause after determining that her conduct was not willfully in violation of a law prohibiting the bringing of "obscene" materials into the jail and the firing was simply for bringing the magazine to work, regardless of any explanation she had. The arbitrator exceeded his authority, however, in ordering that the employee be assigned to a job elsewhere than the jail, since the county had the ability to direct where she would work. County of Bedford v. Pennsylvania Social Services Union, SEIU, AFL-CIO, Local 668, 814 A.2d 866 (Pa. Cmwlth 2003).


     Correctional officials denial of prisoner's access to yard exercise and telephone access for approximately one month when he was classified as having refused a job assignment was not a violation of his rights. After prisoner pursued the proper avenues to get himself classified as medically unable to work, his access to yard exercise and telephone access was restored. Ziegler v. Martin, No. 01-2677, 47 Fed. Appx. 336 (6th Cir. 2002).

Frivolous Lawsuits

     Trial court should have set forth, in its decision, specific factual and legal grounds for the dismissal of a prisoner's lawsuit against a correctional officer who testified before the state court of claims that the prisoner's shoes were not actually taken from him. At the same time, given that the prisoner ultimately received damages from the court of claims for his shoes, the lawsuit was properly dismissed as frivolous, and the trial court's failure to set forth its reasons did not require further proceedings under the circumstances. Ward v. Cliver, No. 30493, 575 S.E.2d 263 (W. Va. 2002).

Medical Care

     Prison officials did not violate prisoner's constitutional rights by requiring that he submit to a psychological evaluation before receiving medical treatment for hepatitis C, since there was evidence that the treatment could result in "severe psychological side effects" which might place prison staff members, other prisoners, and the inmate himself in danger. Accordingly, there was a legitimate penological interest in compelling the submission to evaluation which overrode the prisoner's right to privacy in his medical information. Iseley v. Dragovich, 236 F. Supp. 2d 472 (E.D. Pa. 2002).

     Jailer and sheriff were not negligent in addressing the needs of a hemophiliac detainee who experienced nose bleeds, since he was immediately taken to a hospital when his nose began to bleed rapidly. Prisoner's evidence also did not show negligence by medical providers. Summey v. Barker, No. COA02-13, 573 S.E.2d 534 (N.C. App. 2002).

     Providing inmate who tested positive for tuberculosis only a six months regimen of a preventative drug, rather than the allegedly preferred nine months, did not constitute deliberate indifference to a serious medical need, but only showed a difference of opinion as to the proper treatment. Prisoner also failed to show that prison overcrowding caused him to contract the disease. Prison medical personnel did not show deliberate indifference by failing to respond to "rumors" of tuberculosis cases contained in prisoner grievances, in the absence of actual evidence of infection. Stewart v. Taft, 235 F. Supp. 2d 763 (N.D. Ohio 2002).

Prison Conditions: General

     Prisoner failed to show that her double-celling violated her Eighth Amendment rights when all she managed to demonstrate was that it made her "uncomfortable." Fuller v. Commissioner of Correction, No. 22084, 815 A.2d 208 (Conn. App. 2003). [PDF]

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's lawsuit concerning permanent restrictions on his use of the phone should be dismissed when he failed to comply with the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before filing suit. Prisoner filed three administrative grievances concerning restrictions on his phone use, but only pursued appeals on two of the grievances. Smeltzer v. Hook, 235 F. Supp. 2d 736 (W.D. Mich. 2002).

     Prisoner complied adequately with the exhaustion of administrative remedies requirement when he submitted a grievance concerning his alleged physical mistreatment by correctional officers which was not responded to in any way. Abney v. County of Nassau, 237 F. Supp. 2d 278 (E.D.N.Y. 2002).

     Informal complaints that a prisoner made to the city's inspector general, such as leaving telephone messages concerning his alleged inadequate medical treatment, inadequate heat in the city correctional facility, etc., did not satisfy the legal requirement that he exhaust available administrative remedies before pursuing a federal civil rights lawsuit. To allow him to bypass formal administrative procedures "would obviate the purpose for which the procedures were enacted." Berry v. Kerik, 237 F. Supp. 2d 450 (S.D.N.Y. 2002).

Prisoner Assault: By Officer

     Prisoner convicted by military general court martial was not subjected to cruel and unusual punishment in violation of his Eighth Amendment rights during his confinement after trial when a military guard allegedly hit or squeezed his left testicle during a frisk for weapons. While the guard's action was rough enough to cause a painful and permanent injury to his testicle, satisfying the "objective" component of the legal test for excessive use of force, there was an absence of evidence that the guard intentionally inflicted the injury. "This was a onetime, accidental injury," the appeals court concluded, for which the prisoner "received timely and appropriate medical treatment." United States v. Roth, Army 9600441, 57 Military Justice Reporter 740 (Army Ct. Crim. App. 2002).

Prisoner Assault: By Inmates

     Prisoner did not provide evidence that supervisors of prison guards had any awareness of a particular risk of harm to him from assault by other inmates. While some of his injuries and "predicaments" were documented in prison logbooks, there was no indication that the supervisors were obligated to review these logbooks, or that it was their actual practice to do so. One supervisor's transfer of the plaintiff prisoner to a different cell tier instead of to protective custody did not constitute "deliberate indifference" to the risk of harm, since the prisoner could not show that the supervisor's belief that a different tier would be more secure was unreasonable when plaintiff prisoner did not know the identity of the other inmates who attacked him, what their motive was, or any possible gang affiliation. Boyce v. Moore, #01-2809, 314 F.3d 884 (7th Cir. 2002). [PDF]

Prisoner Discipline

     Federal appeals court rules that a parolee who had fully served a period of additional imprisonment that had been caused by the loss of good time credits because of prison discipline could pursue a federal civil rights claim for damages despite not having first invalidating his discipline, since any petition for habeas relief would be dismissed as moot. Appeals court holds that justice required making an action for money damages available under the circumstances, despite the holding in Heck v. Humphrey, 512 U.S. 477 (1994), since the prisoner in this case was released from custody while his lawsuit was pending. Nonnette v. Small, No. 00-55702 (9th Cir. 2002). [PDF]

    Prisoner provided no evidentiary support for his claim that the misbehavior report concerning his "disruptively loud" telephone conversation and his refusal to obey orders to desist was "fabricated" in retaliation for prior conflicts with a correctional officer. Discipline of prisoner on the basis of misbehavior report is upheld.  Crawford v. Girdich, 752 N.Y.S.2d 919 (A.D. 2003).

     A punishment of loss of 180 days of good time credit and transfer to another facility was not "grossly disproportionate" to the severity of his offense of threatening a prison staff member and therefore did not violate his Eighth Amendment rights. Higgason v. Hanks, No. 01-4022, 54 Fed. Appx. 448 (7th Cir. 2002).

Prisoner Suicide

     Estate of manic-depressive schizophrenic prisoner with prior suicidal tendencies who committed suicide in his cell when left unattended reaches $300,000 settlement on federal civil rights lawsuit against sheriff and county. The plaintiff claimed that the decedent's need for psychiatric treatment or counseling was ignored, while the defendants argued that the decedent did not indicate a need for such care, but instead misled jail personnel about his medical history. Estate of Price v. Black Hawk County, No. 00-CV-2008 (March 21, 2003, N.D. Iowa), reported in The National Law Journal, p. B2 (April 7, 2003).

Procedural: Discovery

     Prisoner's right to disclosure of exculpatory materials was not violated in a prison disciplinary proceeding against him for attempting to procure drugs when he was not allowed to view a security videotape which showed the alleged transport of the drugs between prisoners' cells. The evidence of the tape was not withheld from the fact-finders, and allowing the inmate access could jeopardize prison security by disclosing the location of the camera, which could result in the avoidance of detection in the future. Herrera v. Davis, No. 02-2186, 54 Fed. Appx. 861 (7th Cir. 2002).


     Revocation of Rastafarian prisoner's supervised release after he failed drug urinalysis tests and admitted smoking marijuana was not violative of his right to freely exercise his religion under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sec. 2000bb, since the government had a compelling governmental interest in preventing drug abuse. Additionally, demanding that a convicted felon on parole abstain from marijuana use is a legitimately restrictive means for safeguarding this interest. Accordingly, even under the most restrictive test, the prisoner had no claim for violation of his rights. United States of America v. Israel, No. 02-1864, 317 F.3d 768 (7th Cir. 2003). [PDF] [Editor's Note: despite the U.S. Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997) striking down RFRA as in excess of Congressional authority as applied to the state, it is still arguably applicable to the federal government. Congress subsequently passed another statute, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc-1, based on different legal powers, which essentially imposes the same legal test as RFRA on actions of state correctional institutions which substantial burden inmate religious practice. The importance of the decision reported is that the appeals court finds that the interest in preventing drug abuse is "compelling," meeting the test set forth by both statutes.].

     Prison chaplain was not entitled to qualified immunity from liability for a civil rights violation for allegedly intentionally interfering with an Orthodox Chassidic Jewish prisoner's request to celebrate the religious holiday of Sukkot by being allowed to eat his meals under a religious canopy or booth known as a Sukka. The chaplain allegedly intentionally ignored Kansas Department of Corrections manuals and other information describing Sukkot requirements, suggesting that the Jewish prisoners could adequately meet the religious observance by wearing a napkin on their head, and is alleged to have been motivated by personal animus against Jewish prisoners. Wares v. VanBebber, 231 F. Supp. 2d 1120 (D. Kan. 2002).

Sexual Assault

     City liable under state law for alleged rape of 16-year-old female juvenile doing court mandated community service by inmate-trustee working for the city. Trial court properly assessed city as 70% negligent and inmate-trustee as 30% at fault when city had an obligation to supervise the inmate-trustee, but knowingly allowed the teenage victim to work with him in a situation where they were left alone. City liable for 70% of $153,365.64 general damage award, but no liability found for damages or attorneys fees under 42 U.S.C. Sec. 1983 and 1988. Ashmore v. Hilton, No. 02-816, 834 So. 2d 1131 (La. App. 2002), rehearing denied (2003).

Sexual Offender Programs

     New Hampshire Department of Corrections' sex offenders program did not violate prisoners' Fifth Amendment rights against self-incrimination by making them disclose their past histories of sexual misconduct as a condition of participation in the program. The reduced likelihood of parole for refusal to participate was not a sufficient penalty to constitute "compelling" incriminating statements, and the result was not altered by the state's failure to provide immunity from prosecution for statements made in participating in the program. Ainsworth v. Stanley, #00-1678, 317 F.3d 1 (1st Cir. 2002).

Work/Education Programs

     Exclusion of violent offenders, including those convicted of armed robbery, from participation in "boot camp" program which provided an opportunity for early release after engaging in strenuous exercise, manual labor, substance abuse treatment, and counseling, was not a violation of either equal protection or due process of law. Instead, it was rationally related to a legitimate penal objective. "Violent offenders" are not a "suspect" class, and there was no showing that the distinction was intended to result in racial discrimination. Jones-El v. Grady, No. 02-2406, 54 Fed. Appx. 856 (7th Cir. 2002).


       AELE's list of recently-noted jail and prisoner law resources.

     Book: An on-line shortened version (incomplete) of the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM-IV), published by the American Psychiatric Association, Washington D.C., 1994, the main diagnostic reference of Mental Health professionals in the United States of America. Diagnostic Criteria for the most common mental disorders including: description, diagnosis, treatment, and research findings.

     Publication: Corrections Employment Eligibility for Ex-Offenders. [PDF]. National Institute of Corrections Information Center, September 2002. Presents the findings of a study to examine the practices of correctional agencies in hiring persons with a criminal record. 12 pp. Accession no. NIC-018209.

     Publication: Jail Planning and Expansion: Local Officials and Their Roles. [PDF] by James R. Robertson, January 2003. Describes 16 steps to help elected officials and policy makers develop jail facilities. The development process is contained within the five overlapping phases of pre-architectural planning, site selection and planning, architectural and engineering design, construction, and occupancy. Includes tables, bibliography, and exhibits. 38 pp. Accession no. NIC-017831.

     Publication: New Approaches to Staff Safety. [PDF]. Second Edition. by Robert L. Thornton, National Institute of Corrections, January 2003. Assists community corrections practitioners in evaluating their officer safety training needs by presenting current concepts and standards. Allows agencies to determine their respective needs, evaluate the most current information in various safety training areas, and explore a variety of information and resources on officer safety training. 145 pp. Accession no. NIC-011356.

     Publication: Serving Families of Adult Offenders: A Directory of Programs. [PDF] by James W. Mustin and Donna D'Arville. Family and Corrections Network, November 2002. Lists public and private organizations throughout the United States and Canada that serve offenders' families. Entries include contact persons and descriptions of services. 89 pp. Accession no. NIC-017081.

     Report: "Prison and Jail Inmates at Midyear 2002" (NCJ-198877), was written by Bureau of Justice Statistics statisticians Paige M. Harrison and Jennifer C. Karberg. Single copies may be obtained by calling the BJS Clearinghouse at 1-800-732-3277. In addition, this document can be accessed at: http://www.ojp.usdoj.gov/bjs/abstract/pjim02.htm   The report indicates that nation’s prisons and jails held more than 2 million inmates for the first time on June 30, 2002. The 50 states, the District of Columbia and the federal government held 1,355,748 prisoners (two-thirds of the total incarcerated population), and local municipal and county jails held 665,475 inmates. During the 12-month period ending last June 30, the local jail population increased by 34,235 inmates, the largest increase (5.4 percent) since 1997. State prisons added 12,440 inmates (a 1 percent increase) and the federal prison system grew by 8,042 (5.7 percent). At midyear 2002, the nation’s prisons and jails held 1 in every 142 U.S. residents. Males were incarcerated at the rate of 1,309 inmates per 100,000 U.S. men, while the female incarceration rate was 113 per 100,000 women residents.

     Report: Juvenile Residential Facility Census, 2000: Selected Findings (National Report Series Bulletin). December 2002. 4pp. NCJ 196595. Free. Released: January 17, 2003. This Bulletin presents findings from the inaugural 2000 Juvenile Residential Facility Census (JRFC). It focuses on two issues of primary interest to the juvenile justice field: facility crowding and facility-related deaths. JRFC is designed to collect information on such facility characteristics as type, size, structure, security arrangements, and ownership. It also examines the adequacy of bedspace and a range of services provided youth in residential facilities. Sickmund, M. 2002 (December). U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

     Statistics: Federal Bureau of Prisons Quick Facts (updated January 2003).

     Training Materials: Training resources from the U.S. Department of Justice National Institute of Corrections (NIC) are available on line on a number of topics, and these titles may include facilitator and participant manuals, lesson plans, handouts, exercises, and/or overheads. Items available in full text on-line include Offender Management and Programs on: Changing Offender Behavior to Promote Public Safety, Promoting Public Safety Using Effective Interventions with Offenders, Sex Offender Treatment Skills for Corrections Professionals, Thinking for a Change: Integrated Cognitive Behavior Change Program, Pensar en un Cambio ("Thinking for a Change, Spanish edition), and Training for Trainers: Managing Youthful Offenders in Adult Institutions. Staff Specialty Training Topics include: Designing Learner Centered Instruction, Investigating Allegations of Staff Sexual Misconduct with Inmates, Offender Employment Specialist Training, Restorative Justice: Principles, Practices, and Implementation, Sentencing Women Offenders: A Training Curriculum for Judges, and Offender Job Retention for Corrections Professionals.

     Website: Suicide and parasuicide. "This site brings the latest subjects and resources related with the study of the suicidal phenomena. It is specially designed for health care professionals; Psychiatrists, Psychologists, Suicidologists, Sociologists, Therapists and other mental health practitioners and general health care providers."

     Websites: State departments of corrections. A directory of links.


Cross References

Featured Cases:

Access to Courts/Legal Info -- See also Inmate Funds
Attorneys' Fees: For Plaintiffs -- See also: Disability Discrimination: Prisoners
Diet -- See also Religion (1st case)
Drugs & Drug Screening -- See also Prisoner Discipline (1st case)
Inmate Property -- See also First Amendment
Prison Litigation Reform Act: Attorneys' Fees -- See also Disability Discrimination: Prisoners
Prisoner Assault: By Inmates -- See also Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Discipline -- See also Defenses: Absolute Immunity
Prisoner Discipline -- See also Segregation: Disciplinary
Race Discrimination -- See also Segregation: Disciplinary

Noted In Brief Cases:

Drugs and Drug Screening -- See also Religion (1st case)
Inmate Property -- See also Frivolous Lawsuits
Medical Care -- See also Emotional Distress
Medical Care -- See also Prison Litigation Reform Act: Exhaustion of Remedies (3rd case)
Prisoner Assault: By Officers -- See also Access to Courts/Legal Info
Prisoner Assault: By Officers -- See also Prison Litigation Reform Act: Exhaustion of Remedies (2nd case)
Prisoner Discipline -- See also Drugs and Drug Screening
Prisoner Discipline -- See also Procedural: Discovery
Telephone Access -- See also Exercise
Telephone Access -- See also Prison Litigation Reform Act: Exhaustion of Remedies (1st case)
Youthful Prisoners -- See also Sexual Assault

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