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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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2004 JB Dec (web edit.)

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Featured Cases – with Links
Access to Courts/Legal Info
Drugs and Drug Screening
Emotional Distress
First Amendment
Medical Care
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Discipline
Prisoner Suicide
Prisoner Transfer
Sexual Assault
Work/Education Programs

Noted in Brief -- With Some Links
Access to Courts/Legal Info (3 cases)
Attorneys' Fees
Chemical Agents
Defenses: Service of Process
Defenses: Statute of Limitations
Drugs and Drug Screening
Employee Injury/Death
Federal Tort Claims Act (2 cases)
Filing Fees
First Amendment
Medical Care (3 cases)
Prison & Jail Conditions: General
Prison Litigation Reform Act: Exhaustion of Remedies (3 cases)
Prisoner Assault: By Officers
Prisoner Discipline (3 cases)
Prisoner Injury/Death




Access to Courts/Legal Info

Representation of prisoner by an appointed lawyer was sufficient to provide access to the courts, barring his claims for denial of his rights based of lack of materials from jail's law library.

     A federal appeals court rejected a New York prisoner's claim that jail officials violated his constitutional right of access to the courts while he was a pretrial detainee by denying him materials he requested from the jail's law library. The court held that the appointment of counsel, which occurred in the case, was a valid method of "fully satisfying" the constitutional obligation to provide prisoners, including pretrial detainees, with access to the court in compliance with the requirements of the due process clauses of the Fifth and Fourteenth Amendments and the equal protection clause of the Fourteenth Amendment.

     The detainee complained that his requests for reference materials form the jail's law library were denied, that the jail failed to maintain a law library with "adequate and up-to-date materials," and that the jail failed to provide timely services of a notary public. All of this, he claimed, harmed him in his efforts to prepare and file pro se a timely pretrial motion to dismiss the state criminal indictment under which he was being detained.

     At the time, however, the detainee was represented by a court-appointed lawyer.

     The appeals court noted that the right of access to the courts, as it pertains to prisoners, is grounded in the due process clauses of the Fifth and Fourteenth Amendments and the equal protection clause of the Fourteenth Amendment. The appeals court rejected the prisoner's argument that his appointed counsel was "ineffective," and that therefore, despite his representation by that attorney, the defendants unconstitutionally hindered his access to the state trial court by their actions.

     The appeals court noted that the two rights of assistance of counsel and access to the courts do not "share a common constitutional source," as the right to effective assistance of counsel is explicitly guaranteed by the Sixth Amendment. The court found that the assistance of an attorney is a permissible and sufficient means of satisfying the right of access to the courts.

      Access to the courts can also be protected by other means, such as a library or "adequate assistance from persons trained in the law," such as paralegals, when appointed or retained attorneys are not available.

       Under the facts of the case, the prisoner was represented by a court-appointed attorney at the time he requested reference materials. He presented no evidence to suggest, much less establish, that the prison authorities denied or restricted his access to his attorney or otherwise hindered his efforts to pursue his claims in state court when he was represented by an attorney on those claims. The prisoner did not claim that his appointed counsel was "not capable" of bringing before the courts the particular efforts he wanted to pursue, and he never requested from his attorney the reference materials he was denied by the defendants. The court concluded that, despite the claim that his attorney was "ineffective," in these circumstances, the fact of his appointed lawyer--professional legal assistance "provided at the government's expense," it was established that the prisoner was granted constitutionally acceptable access to the courts.

     The court noted that imposing a requirement on prison officials to determine, "based on a detainee's expressions of dissatisfaction, whether an attorney was effective or not--a technical and burdensome legal judgment that is wholly inappropriate for prison officials to make, much less for courts to impose upon them."

     Bourdon v. Loughren, No. 03-0196, 386 F.3d 88 (2d Cir. 2004)

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

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Drugs and Drug Screening

California prisoner's disciplinary punishment for possession of drugs was adequately supported by "some evidence" based solely on positive urinalysis test, even if it would have been insufficient under state law to support a criminal conviction. Loss of 120 days of good time credits, however, was excessive under state statute.

     A California prisoner was found guilty, at a prison disciplinary hearing, of having possessed a controlled substance in violation of prison regulations, based on a positive urinalysis test. He filed a lawsuit challenging the drug test as insufficient evidence to support a finding of possession, and the trial court agreed, ordering that the disciplinary finding be set aside, and that the prisoner's lost 120 days of good time credits be restored.

     An intermediate California appeals court reversed, ruling that the drug test satisfied the "some evidence" standard of proof required for prison disciplinary actions.

     The urine sample was taken from the prisoner as part of a substance abuse program's random drug testing policy, and it tested positive for THC (cannabinoids).

     The appeals court noted that the California Department of Corrections has "broad authority" for the discipline of inmates in state prisons, including the authority to establish regulations governing discipline. While it may not interpret such regulations arbitrarily or capriciously, the court acknowledged, it does not "abuse its discretion" when it has "some basis in fact for its decision." A prison disciplinary action must only be supported by "some evidence," and on appeal, the court stated, it must uphold any Department decision that is "supported by 'some evidence.'"

     The appeals court noted that the issue was not whether the evidence of a controlled substance in the prisoner's urine was sufficient to support the burden of proof in a criminal conviction for drug possession, which it is not under California caselaw cited by the prisoner, but rather, whether the THC in his urine sample is "some" or "any" evidence that he had possessed marijuana in violation of prison rules. While it is possible to ingest a controlled substance "without the knowledge, dominion, and control necessary" to sustain a criminal conviction for possession of drugs under California law, the court stated, it concluded that the presence of THC in the prisoner's body was "some evidence," sufficient to support the finding that he possessed it.

     The appeals court also found that the Department's regulations showed an intent to discipline inmates for possession of controlled substances based on positive drug tests, and that the inmates "are on notice of this intention."

     The prisoner argued that these regulations were intended to authorize prison officials to charge inmates with possession based on a positive test, "but not to sustain the charge based on the same evidence." In the court's view, this was "unlikely" under a reasonable and "common sense" interpretation of the regulations.

     The appeals court did find, however, that the penalty imposed on the possession charge was excessive.

     In re Dikes, No. A104121, 121 Cal. App. 4th 825;18 Cal. Rptr. 3d 9 (Cal. 1st App. Dist. 2004).

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

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Emotional Distress

Federal appeals court reverses $1.1 million in emotional distress damages against U.S. government by family of prisoner who died in federal detention center, based on trial court's failure to make explicit findings concerning the severity of the family's emotional distress.

     The federal government appealed from a judgment awarding the estate of a prisoner and members of his family $1.1 million in damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80 (2000), for the intentional infliction of emotional distress following his death at a federal detention center in Oklahoma. A prison official also appealed a judgment entered on a jury verdict finding him liable for deliberate indifference to the prisoner's medical needs. The estate and family also appealed, arguing that the trial court was erroneous in finding that the prisoner committed suicide in his cell and in finding that federal officials did not engage in the intentional destruction of evidence.

     The federal Bureau of Prisons (BOP) sent the prisoner to the Federal Transfer Center (FTC) in Oklahoma City for a parole revocation hearing. Two days later, he asked to be placed in protective custody, and he was moved to a cell in the prison's Special Housing Unit. At 3:02 a.m. the next morning, guards found his blood-soaked body in his cell hanging from a noose made of torn bed sheets, and he was pronounced dead.

     The family claimed that the prisoner was either murdered by prison guards or another inmate, and that prison officials acted to "cover up" the suspicious nature of the death by destroying evidence and cleaning the cell before an investigation could be complete. They also claimed that there was deliberate indifference to the prisoner's medical needs because the guards allegedly waited several minutes to open the cell door and cut the prisoner's noose. The defendants claimed that the prisoner's wounds were self-inflicted and that he was dead by the time the guards discovered him.

       The family alleges that the BOP never notified the family that an autopsy had been performed or told them about the "obvious and extensive trauma" to his body, including numerous bruises and lacerations, which they discovered upon receiving his body for burial. The BOP released a press release stating that the medical examiner had tentatively ruled the death a suicide and that the prisoner's injuries were the result of his "persistent" attempts to harm himself. In actuality, the medical examiner had listed the cause of death as "unknown." After a number of investigations, the medical examiner changed the manner of death in the autopsy report to "suicide," and identified the cause of death as "traumatic asphyxia."

     After a four-week trial, a jury in the civil rights claim against a correction official returned a verdict finding him liable for being deliberately indifferent to the prisoner's serious medical needs, and awarded the plaintiffs $20,000 in compensatory damages. The trial court in the FTCA action entered judgment against the government for intentional infliction of emotional distress, and awarded plaintiffs $1.1 million in damages. This included an award of $250,000 to his wife, $300,00 each to his mother and three siblings, and $50,000 to the estate of his deceased father.

     On appeal, the court noted that the FTCA ordinarily does not apply to claims arising out of misrepresentation or deceit, and that the government argued that the plaintiffs' emotional distress claims were therefore barred. The appeals court disagreed.

      The appeals court found that this was not a claim for intentional or negligent misrepresentation, which requires reliance on incorrect or incomplete information and monetary loss, but rather one for emotional distress arising "from the government's callous treatment of the family in the aftermath" of the prisoner's death, including its shipping of his "battered remains to unsuspecting family members." The court therefore concluded that the plaintiffs' intentional infliction of emotional distress claim was not barred by the FTCA's misrepresentation exception.

     The appeals court agreed with the trial court that the government acted in deliberate disregard of a high probability that its actions would cause the prisoner's family emotional distress. It ordered further proceedings, however, since the trial court did not make explicit findings as to the severity of each individual plaintiff's emotional distress, so that it was unclear whether the emotional distress suffered by each plaintiff was "severe" under Oklahoma law, so as to justify an award of damages.

    The appeals court found no merit in any of the family's claims in its cross appeal.

     Trentadue v. U.S., No. 01-6444, 2004 U.S. App. Lexis 22156 (10th Cir. 2004).

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

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First Amendment

•••• Editor's Case Alert ••••

Prisoner's allegations that officers confiscated and destroyed his property, threatened to transfer him, and assaulted him in retaliation for his filing of grievances were sufficient to state a claim for violation of his First Amendment rights. Appeals court rejects the "Catch 22" argument that no claim was stated because the prisoner was undeterred by these actions from continuing to assert his First Amendment rights.

     A federal appeals court, stating that it had to "resolve a legal quandary that only Joseph Heller, the author of Catch-22, could have imagined," addressed the issue of whether the "exhaustive efforts" of a prisoner to remedy alleged violations of his First Amendment rights, by their very existence, demonstrated "that his First Amendment rights were not violated at all."

     The plaintiff prisoner, incarcerated in California, claimed that several correctional officers repeatedly retaliated against him for exercising his First Amendment rights. The conflict between him and the officers, according to the appeals court, began in the "most unlikely of places: the servicing of his Canon typewriter." He claimed that every time he shipped his typewriter for off-site repairs, he would discover considerable new damage to the equipment upon its return, and one of the officers allegedly would "intentionally delay" sending his typewriter for further repairs.

     Angered by this, the prisoner eventually filed an inmate grievance criticizing the officer's conduct and requesting that, in the future, his typewriter be returned to him in its original shipping container so that if the typewriter failed to function, he could "assign blame to the appropriate parties." This grievance was denied.

     In alleged retaliation for submitting this grievance, the officer allegedly forced the prisoner to send either his CD player or his television home, in order to receive his typewriter, which had recently been repaired again. When the prisoner refused to do so, the officer allegedly refused to return the typewriter and ordered another officer to confiscate the prisoner's CD player. The officer then withheld both the CD player and the typewriter from the prisoner.

     The officer defended his actions by citing procedures stating that inmates were limited to possession of 2 AC "electrical appliances," but the prisoner responded that the typewriter was "battery operated," and therefore not considered an appliance, and that he had been allowed for long periods of time prior to filing his grievance to possess the CD player, television and typewriter without interference.

     The prisoner submitted a "group appeal" on behalf of himself and approximately 120 other inmates who signed it, claiming that the officer had a "personal vendetta" against inmates possessing personal property, especially typewriters, and that he frequently arbitrarily hampered their efforts to obtain their personal property from the prison's "receiving and release" office, or damaged or altered their belongings.

     The officer then allegedly, in retaliation for this group grievance, altered the prisoner's CD player in order to make it appear as though he had stolen another inmate's property, and therefore to justify its confiscation, and allegedly "conspired" with a prison ombudswoman to withhold the filing of the group grievance, so that it would not be responded to.

     The prisoner subsequently forwarded to a facility captain who requested it his only copy of the grievance he originally filed against the officer, but he received no response, and the captain allegedly "obstinately refused to return" his documentary evidence. A number of officers then allegedly conspired to transfer him to another prison as a retaliatory measure and for the purpose of avoiding having to respond to his grievances.

     The prisoner was subsequently informed that his typewriter had been "completely destroyed." The prisoner filed several complaints with a local grand jury, and while these complaints were being investigated, he was allegedly accosted by three officers who he says ordered him into the prison chapel, brandished pepper spray, forced him to slowly disrobe, bend over, and "spread [his] buttocks apart," and then mockingly threatened to transfer him elsewhere. The grand jury subsequently dismissed his complaints.

     The prisoner then filed a federal civil rights lawsuit asserting violations of his First Amendment rights by the officers, claiming retaliation against him for his grievances.

     The trial court granted a motion to dismiss the prisoner's lawsuit, reasoning that the prisoner had made no showing of a "chilling or deterring effect" of the defendants' actions on his exercise of his First Amendment rights, since the prisoner continued to actively assert his First Amendment rights despite the alleged retaliatory actions against him.

     The federal appeals court likened this to the central premise of the novel Catch-22 by Joseph Heller, quoting from the book:

     A viable First Amendment retaliation claim, the court stated, has five components:

     The appeals court found that the officers did not seriously contest the fact that the prisoner's complaint "precisely" alleged all five of these elements. He claimed that they arbitrarily confiscated, withheld, and eventually destroyed his property, threatened to transfer him to another correctional institution, and ultimately assaulted him because he exercised his First Amendment rights to file prison grievances and otherwise seek access to the legal process, and that, beyond imposing those tangible harms, these actions chilled his First Amendment rights, and "were not undertaken in a narrowly tailored furtherance of legitimate penological purposes."

     The appeals court noted that an actual "chilling" of the prisoner's exercise of his First Amendment rights was not one of the required elements. Instead, "any retribution" against a prisoner due to his decision to engage in protected conduct is "sufficient to ground a claim of unlawful First Amendment retaliation." Accordingly, the prisoner's allegations that the officers destroyed his property and assaulted him were sufficient to state a claim.

     The consequences of a contrary holding, the appeals court reasoned, "would be remarkably perverse," and would prevent "virtually any prisoner retaliation suit from reaching federal court." Since the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a), requires prisoners to exhaust available administrative remedies before filing suit, rejecting the prisoner's suit on the basis of his having filed administrative grievances seeking to vindicate his rights "thus would establish a rule dictating that, by virtue of an inmate's having fulfilled the requirements necessary to pursue his cause of action in federal court, he would be precluded from prosecuting the very claim he was forced to exhaust."

     The appeals court also rejected the argument that the defendant officers were entitled to qualified immunity.

     Rhodes v. Robinson, No. 03-15335 380 F.3d 1123 (9th Cir. 2004)

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

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Medical Care

•••• Editor's Case Alert ••••

Warden was not entitled to summary judgment in lawsuit alleging that he was deliberately indifferent to paraplegic prisoner's medical needs and "inhumane housing conditions," or on disability discrimination claims seeking injunctive relief. Disability discrimination claims seeking money damages rejected.

     A paraplegic Georgia prisoner claimed that the prison warden was deliberately indifferent to his medical needs and to disability discrimination against him. The trial court granted summary judgment on the prisoner's Eighth-Amendment claims brought under 42 U.S.C. § 1983 and his disability-discrimination claims brought under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 ("ADA").

     A federal appeals court reversed in part, reinstating Eighth Amendment claims against the warden for money damages in his individual capacity and for injunctive relief in his official capacity, as well as ADA claims for injunctive relief, while rejecting the prisoner's ADA claims for money damages.

     The plaintiff prisoner suffers from complete paralysis in his right leg, partial paralysis in his left leg, and a neurogenic bladder condition that causes urinary incontinence. He is housed in disciplinary isolation in a "high maximum" security section of the prison, and as a result of more than 180 disciplinary reports, has been in isolation since at least 1998, and is due to remain in isolation for more than eight years more.

     The prisoner claimed that there was no room in his small cell for him to maneuver his wheelchair, making him immobile and restrained for extended periods of time and that this problem is increased by the staff's failure to remove his bed from his cell daily, as prison policy required for wheelchair-bound inmates. He also asserted that the showers and toilets in the building were not wheelchair-accessible and that he has been denied the opportunity to bathe regularly and to obtain basic hygiene. Additionally staff members have allegedly not provided him with necessary urine catheters or assistance in using portable toilets, resulting in his urination and defecation on himself.

     The prisoner also claimed that prison employees ignored his medical complaints, failed to provide him with rudimentary medical devices required for his paraplegic condition, including leg braces, orthopedic shoes, a wheelchair-accessible van, and wheelchair repairs, and failed to provide him with required medical care, including physical therapy, occupational therapy, and medical evaluation for his spinal condition, resulting in bed sores, serious atrophy, and deterioration of his spinal condition.

     The prisoner's disability discrimination claims included assertions that he has been denied basic privileges provided to able-bodied inmates in isolation, including removal from isolation for one day after each thirty-day isolation period, and participation in "yard call" and "gym call" during each such removal day.

      The prisoner claimed that the warden was personally aware of his paraplegic condition, the "inhumane conditions" of his confinement, and his serious medical needs, and was deliberately indifferent to those conditions and needs.

      Reviewing the evidence, the appeals court found that it created genuine issues of material fact regarding his Eighth Amendment claims for money damages and injunctive relief against the warden, and on his claim for injunctive relief under the ADA.

      The plaintiff prisoner, as a wheelchair-bound paraplegic with urinary incontinence, clearly has serious medical needs, the court noted, and he presented evidence that he was denied certain of those needs, effectively rendering him immobile and causing his muscles to atrophy. There was also evidence that the failure to provide him with required medical care has caused the prisoner's spinal condition to deteriorate, and that the building in which he was housed does not contain wheelchair-accessible showers and toilets. This created a genuine issue of material fact as to whether the inmate, as paraplegic, has been "afforded the basic levels of humane care and hygiene."

     The warden acknowledged receiving numerous verbal and written complaints from the prisoner, and even visiting his cell. Despite this, the prisoner claimed, the warden did not exercise his authority to provide him with the required medical attention and with the required medical attention and "basic living conditions to which he is entitled under the Eighth Amendment." 

      The appeals court held that the Eleventh Amendment does not bar ADA suits under Title II for injunctive relief against state officials in their official capacities, and found that the prisoner could properly pursue such a claim against the warden. As for money damages claims for disability discrimination against the warden in his individual capacity, the appeals court agreed with the trial judge that individuals are not subject to personal liability under Sec. 12132 for violations of Title II of the ADA, as that Title addresses the providing of services by a "public entity."

     Miller v. King, No. 02-13348, 384 F.3d 1248 (11th Cir. 2004)

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

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Oregon Parole Board's retroactive application of an amended parole statute to extend the release date of a prisoner convicted of raping and sodomizing his daughter violated his constitutional right against retroactive enhancement of his punishment.

     An Oregon prisoner claimed that his constitutional rights were violated when a state law enacted after the commission of his crimes was applied by the Oregon State Board of Parole and Post-Prison Supervision ("Board") to postpone his parole release date. The prisoner claimed that this was an impermissible retroactive enhancement of his punishment in violation of the "ex post facto clause" of the U.S. Constitution applicable to the states.

     The prisoner challenged the application of a statute which changed the method by which the Board decides whether to postpone a prisoner's parole date. Before December of 1993, the applicable Oregon state law provided that the Board could order the postponement of a prisoner's scheduled parole release if a "psychiatric or psychological diagnosis of present severe emotional disturbance such as to constitute a danger to the health or safety of the community has been made with respect to the prisoner." The prisoner was convicted in 1982 of four counts of sodomy and one count of rape for assaulting his daughter, and received a sixty-year sentence for these crimes.

     In 1993, the Oregon law was amended to read that the Board could order a postponement of a prisoner's scheduled parole date if it finds that "the prisoner has a mental or emotional disturbance, deficiency, condition or disorder predisposing the prisoner to the commission of a crime to a degree rendering the prisoner a danger to the health or safety of the community." A "psychiatric or psychological diagnosis" was no longer required, only a "finding" by the Board.

     In July of 1995, a psychological evaluation found that the prisoner did "exhibit some signs of emotional disturbance, particularly of a passive-dependent nature," but did not diagnose him with any disease or disorder. The doctor concluded the evaluation by stating: "I do not find that he represents a severe or extreme emotional disturbance or that he is a danger to the health and safety of others in the community at the present time."

     The Board subsequently postponed the prisoner's parole date for twenty-four months, finding that he suffered from a "present severe emotional disturbance" and was a "danger to the health or safety of the community."

     A federal appeals court noted that a law violates the ex post facto clause of the U.S. Constitution if it applies to events occurring before its enactment, and is "detrimental," in that it "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes."

     In postponing the prisoner's parole release date despite a psychological evaluation without a diagnosis of any disorder, the Parole Board retroactively applied the post-1993 version of the statute, using discretion it did not have under the law in effect when the plaintiff prisoner committed his crimes, the appeals court found.

     The appeals court also found that the post-1993 statute created a "significant risk that prisoners will face longer periods of incarceration," and in this case, had the Board applied the pre-1993 version of the statute, it could not have postponed the prisoner's parole release date, so that he would have had a shorter period of incarceration.

     The Board's action therefore violated the prisoner's constitutional rights under the ex post factor clause.

     Brown v. Palmateer, No. 03-35618, 379 F.3d 1089 (9th Cir. 2004).

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

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Prison Litigation Reform Act: Exhaustion of Remedies

Man held under Illinois sexually dangerous persons statute, under which criminal proceedings are stayed for the purpose of treatment for mental illness was a pretrial detainee properly classified as a "prisoner" for purposes of the exhaustion of remedies requirement and "three strikes" rule of the Prison Litigation Reform Act. His lawsuit asserting a claim for alleged inadequate access to prison law library was therefore properly dismissed for failure to exhaust available administrative remedies.

     An Illinois prisoner claimed that he was improperly deprived of adequate access to the prison's law library, and asked for $6 million in damages, as well as an injunction granting him six hours of library access every day of the year. The prisoner was confined under the state's "Sexually Dangerous Persons Act," 725 ILCS 205/1 et seq. The trial court dismissed the lawsuit on a number of grounds, including the failure to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e of the Prison Litigation Reform Act.

     On appeal, the prisoner argued that the exhaustion of remedies requirement applies only to "prisoners," and that, as a person confined as a "sexually dangerous person," he is not a prisoner. He also contended that the "three-strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) did not apply to him, for the same reason.

     The federal appeals court rejected this argument. In defining "prisoner," the PLRA, 28 U.S.C. Sec. 1915(h), states that it means "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h).

     Prisoners confined as "sexually dangerous persons" under the Illinois statute, the court noted, are pretrial detainees--persons charged with a felony, whose criminal proceedings are held in abeyance "during treatment for mental illness." Pretrial detainees, the court noted, are "prisoners" for purposes of the PLRA because they are in custody "while accused of" violations of criminal law.

     The appeals court stated, in passing, that applying the PLRA's definition to persons whose criminal conviction has expired, and is held thereafter as sexually dangerous "may be difficult," since such a person has been "sentenced for" a crime, but the justification for ongoing custody is future dangerousness rather than solely past criminal actions.

     For a person like the plaintiff, however, who is held on unresolved criminal charges, "there is no difficulty at all," and the plaintiff and others like him are "prisoners," the court ruled. Accordingly, the lawsuit was rightly dismissed for lack of exhaustion of remedies. Additionally, as the lawsuit was also dismissed as frivolous on its merits, and constituted the plaintiff's "third strike," he is required under 28 U.S.C. Sec. 1915(g) prepay all filing fees for his future civil litigation, the court said, unless he demonstrates that he is facing imminent threat of serious physical injury.

     Kalinowski v. Bond, No. 02-3273, 358 F.3d 978 (7th Cir.), cert, denied, 124 S. Ct. 2843 (2004).

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

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Prisoner Discipline

Appeals court orders further proceedings on prisoner's claim that he was falsely charged and disciplined for misconduct in retaliation for prior grievances and lawsuits against a correctional officer. Summary judgment for defendant officer was improper without considering another inmate's affidavit concerning officer's alleged retaliatory intent, and the issue of proximity in time between prisoner's exercise of his First Amendment rights and the alleged retaliatory action.

Summary judgment against plaintiff-inmate's claim of First Amendment rights violations is reversed where the district court must resolve whether another inmate's affidavit and plaintiff's proof of temporal proximity are sufficient to defeat defendant's motion for summary judgment.

     A federal appeals court initially held that a prisoner could not pursue a federal civil rights claim for damages against a correctional officer who he alleged falsely charged him with misconduct, resulting in disciplinary action in retaliation for prior grievances and lawsuits that the prisoner had asserted against the officer. The court based this on the principles in Heck v. Humphrey, 512 U.S. 477 (1994), barring federal civil rights lawsuits for damages for any harm that would render conviction or sentence invalid unless prisoner has already succeeded in having the conviction or sentence overturned on direct appeal or called into question by a court's issuance of a writ of habeas corpus. Muhammad aka Mease v. Close, 47 Fed. Appx. 738 (6th Cir. 2002)

     The U.S. Supreme Court subsequently ruled that prisoners may pursue federal civil rights lawsuits for damages over prison discipline despite the fact that the disciplinary conviction has not been set aside, so long as the lawsuit challenges only the conditions of confinement, rather than the fact or duration of the confinement. Muhammad aka Mease v. Close, # 02-9065, 124 S. Ct. 1303 (2004), reported in Jail and Prisoner Law Bulletin, April 2004.

     On remand from the U.S. Supreme Court, the federal appeals court reversed the decision of the trial court to grant summary judgment for the defendant officer and ordered further proceedings.

     The trial court had held that the prisoner properly pleaded all the elements of a First Amendment retaliation claim, which are that:

     The officer argued that he was entitled to summary judgment because there was insufficient evidence to satisfy the second and third elements, despite conceding that the first element was satisfied, since the prisoner had a right to access the courts. The trial court ruled that the officer was entitled to summary judgment solely because the prisoner had failed to produce sufficient evidence as to the third element, causation.

     The trial court found that the "temporal proximity" between the prisoner's protected conduct and the alleged retaliatory action was "weak," and there was no "direct evidence of animosity," such as statements made by the defendant officer. It reasoned that the prisoner was simply asking the court to trust his "hunch" that the officer's action against him was motivated by his past lawsuits, which was insufficient to defeat a motion for summary judgment.

     The appeals court found, however, that the trial court overlooked a "key piece of evidence" in reaching its conclusion, an affidavit from another inmate which asserted that he overheard a conversation between two correctional officers about the plaintiff prisoner, in which they were "clearly conspiring to cause him harm," and that one of these officers was the defendant. The discussion allegedly centered on the need to "stop" the plaintiff prisoner from filing an appeal, and the possibility of setting the prisoner up by planting evidence in his cell, such as a knife.

     The appeals court ruled that further proceedings were needed which would address whether the affidavit, the plaintiff prisoner's proof of "temporal proximity" of the officer's actions to his exercise of his rights, "or both pieces of evidence together." were sufficient to defeat the officer's motion for summary judgment.

     Muhammed v. Close, #02-1043, 379 F.3d 413 (6th Cir. 2004).

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

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Prisoner Suicide

•••• Editor's Case Alert ••••

Sheriff was not entitled to qualified immunity to claim that he was deliberately indifferent in his training and supervision of personnel in dealing with the risk of suicide in a county jail where two prior suicides had occurred. Detainee who threatened suicide was allegedly placed in an isolation cell and given a blanket with which he hung himself a half hour after making the threat.

     County officers in Nebraska responded to a 911 from an emotionally "despondent" man. While he threatened to kill himself if jailed, he was arrested because of his "combative and volatile state," and yelling of obscenities and derogatory remarks, brought to jail, placed in an isolation cell, and given a blanket upon his request. Less than a half an hour after making the suicide threat, he hung himself with the blanket, becoming the third person in five years to commit suicide in the Lincoln County, Nebraska jail.

     A federal civil rights lawsuit against the county sheriff asserted that his deficient training and supervision of the officers involved in the arrest and incarceration deprived the detainee of his Fourteenth Amendment rights. The trial court denied the sheriff's motion for qualified immunity and he appealed.

     Upholding this result, the appeals court noted that the detainee was placed in an isolation cell and given a blanket despite repeatedly threatening suicide. It was undisputed that the sheriff took no personal part in the arrest and was not present at the jail during the suicide.

      The sheriff's materials in support of his motion for summary judgment on the basis of qualified immunity, however, was only supported by a two-page affidavit from him and a one-page medical form signed by the nurse who examined the detainee at the jail when he was admitted. The sheriff's sole argument was that he had no personal involvement in the arrest, and there was no mention in his affidavit of any training given to county officers "concerning treatment of suicidal inmates; nor does it relate any policy for dealing with suicidal inmates, or when any such policy was implemented." Additionally, the affidavit omitted the two prior suicides which occurred at the jail and what, if any, preventive steps may have been taken following them.

     There was also no discussion, in the sheriff's motion and accompanying brief, of any liability he may have as a supervisor for inadequate training and supervision of the numerous county officers who interacted with the detainee shortly before his death.

     The sheriff, the appeals court noted, had the burden of supporting his claim for qualified immunity. A supervisor may be individually liable in these circumstances on the basis of failure to properly supervise and train employees, if this demonstrated a deliberate indifference to or tactic authorization of the offending acts. "This requires a showing that the supervisor had notice that the training procedures and supervision were inadequate and likely to result in a constitutional violation"

     The appeals court rejected the argument that, as a matter of law, one or two prior suicides in the county jail were insufficient to put a sheriff on notice that his training and supervision is constitutionally inadequate.

     In the alternative, the sheriff on appeal claimed that the jail had a "good-faith policy" in place for dealing with prisoners and pretrial detainees presenting suicidal risks. The appeals court noted, however, that "this argument is not properly before us," since the sheriff raised it for the first time on appeal, saying nothing about it in the trial court, and the assertion was "entirely without support in the record."

     Wever v. Lincoln County, No. 03-3633, 2004 U.S. App. Lexis 22974 (8th Cir. 2004).

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Prisoner Transfer

Prisoners who were convicted and sentenced in Hawaii but then incarcerated in Oklahoma had no due process right to be confined in Hawaii. Federal appeals court also rejects prisoners' argument that their transfer to a prison "on the mainland" constituted "banishment" from Hawaii.

     Four prisoners convicted and sentenced for a crime in state court in Hawaii were subsequently transferred to a private correctional facility in Oklahoma, which was subsequently purchased by the state of Oklahoma for operation as a state-owned correctional facility. They challenged their incarceration in Oklahoma, asserting Eighth Amendment and due process claims.

     They argued that their transfer to the "mainland" violated the Eighth Amendment because it "amounts to banishment," and that their due process rights were violated because, despite allegedly not being security threats or presenting disciplinary issues, they received no notice or pre-transfer hearing. They also claimed that they had endured an "atypical and significant hardship" as a result of the transfer because they were unable to take advantage of therapeutic programming in Hawaii necessary for parole consideration.

     A federal appeals court found that it was not "reasonably debatable" that the prisoners had "no protected liberty interest in the location of their confinement.

     The appeals court also rejected the prisoner's argument that they had an Eighth Amendment claim for "banishment," since they failed to "identify an objectively serious risk to inmate health or safety, let alone a culpable mental state on the part of prison officials."

     The appeals court declined to even address the prisoners' argument that their confinement in Oklahoma violated the laws of that state, noting that, even if that were true, that would be insufficient to show a constitutional violation addressable in federal court.

     Overturf v. Massie, No. 04-6037, 385 F.3d 1276 (10th Cir. 2004)

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Sexual Assault

•••• Editor's Case Alert ••••

Federal appeals court rules that if prison officials and employees actually declined to protect homosexual prisoner from repeated prison rape because of his sexual orientation, that would violate clearly established law, so that qualified immunity on that claim should be denied. Race discrimination claim dismissed for failure to exhaust available administrative remedies.

     A Texas prisoner filed a federal civil rights lawsuit against fifteen prison officials. According to his version of events, which was disputed by the defendants, he endured a "horrific" eighteen-month period of incarceration during which the defendants failed to protect him from repeated rape by prison gangs who "bought and sold him as a sexual slave." He asserted Eighth Amendment claims, as well as equal protection claims based on his status as a homosexual and an African-American.

     The trial court denied motions for summary judgment, and a federal appeals court ruled that the majority--but not all--of the prisoner's claims should be dismissed either for failure to exhaust available administrative remedies or else on the basis of qualified immunity.

     The plaintiff claimed that prison officials knew he was a homosexual and possessed an "effeminate manner," and that he had been housed in "safekeeping" at a prior facility. He further asserted that he was told, at his present facility, that "we don't protect punks [homosexuals] on this farm." He was put into the general population, and claims that he was raped by other inmates almost immediately.

     The prisoner alleges that he informed an assistant warden and a correctional sergeant of the rapes and requested medical attention, but that they told him that care was available "only for emergencies," and that he should file a written request for medical attention. Another prisoner allegedly began to "rent" him out to perform coerced sexual favors for other inmates, and he believed that he would be severely beaten or killed if he refused. Indeed, the prisoner "renting him out" allegedly beat him on one occasion, and medical personnel documented his bruising and swelling on his face. He was subsequently moved to different buildings at the facility, but was allegedly raped and "owned" by different prison gangs in those buildings.

     He wrote letters to prison administrators, according to his lawsuit, as well as seeking help from correctional officers and filing numerous "life-endangerment" forms, but officers who investigated his complaints generally determined that they could not be corroborated. The prisoner also claims that the officers usually did not interview any of the inmates mentioned in his complaints, purportedly out of a concern to protect the "integrity of the investigation" or to protect him. He also asked that he be placed in safekeeping, protective custody, or transferred to another prison, but these requests were denied, allegedly because there was "no concrete evidence of victimization." Formal grievances he filed were also denied.

     The prisoner claimed that he was told repeatedly that he either had to fight off his attackers or submit to being used for sex. He also said that some prison employees made remarks to the effect that since he was homosexual, he probably "liked" the sexual assaults, and that, as a Black homosexual, he should be able to "fight and survive" in the general population if he didn't want to be sexually assaulted. The employees denied making such statements.

     After eighteen months, he was transferred, and he filed his lawsuit.

     The federal appeals court agreed that some of the prisoner's claims should be dismissed for failure to exhaust available administrative remedies before filing suit as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e. The prisoner twice filed formal grievances, both times appealing to a second step after being denied at step 1.

     While the grievances asserted failure to protect claims and specifically named the Eighth Amendment as the basis for those claims, the grievances failed to mention his race discrimination claim, while they did mention his sexual orientation many times. Accordingly, the appeals court found that the prisoner did not "exhaust" available administrative remedies on the race discrimination claim, since he failed to even raise it in his formal grievances.

     The appeals court further found that to the extent that available administrative remedies were exhausted, it was only as to incidents in which the prisoner followed the applicable procedure requiring that he file a step 1 grievance within 15 days of the complained-of event. Claims based on incidents occurring more than 15 days before the filing of his grievances, therefore, were barred because he failed to pursue available administrative remedies as to them at all.

     The filing of that first grievance, however, the court found, alerted prison officials to the fact that the prisoner was allegedly being subjected to repeated assaults and "was not receiving any protection from the system, in particular a transfer to safekeeping status."

     As a practical matter, the appeals court found, the prisoner could not have been "expected to file a new grievance every fifteen days, or each time he was assaulted (which, according to him, was virtually every day), for the entire period during which he remained unprotected in the general population," once he had brought the matter to prison officials' attention. Additionally, applicable rules specifically directed prisoners not to file repetitive grievances about the same issue and make a threat of sanctions for "excessive use" of the grievance process.

     Accordingly, under the circumstances of the case, the prisoner's two grievances were sufficient to exhaust claims that arose from the same continuing failure to protect him from sexual assault, except as to some of the claims occurring more than fifteen days before the filing of the first grievance, and the racial discrimination claims.

     If the prisoner's version of events and the defendants' statements were true, those who openly expressed a decision not to protect him from sexual assault in general were not entitled to qualified immunity, as such decisions would violate clearly established law. Some of the defendants, however, were not alleged to have made such statements, and did take steps to respond to the prisoner's complaints or at least investigate them, and therefore could not be held liable.

     On the sexual orientation claim, the defendants argued that the law was not clearly established as to whether the use of sexual orientation as a "factor in state prison classification decisions" violates the equal protection clause, when the use is rationally related to a legitimate penological interest. The appeals court rejected this argument:

     Further, the appeals court noted, if the defendants did actually deny the prisoner protection because of his homosexuality, as he alleged, "that decision would certainly not effectuate any legitimate interest." It is clearly established, the court stated, that all prison inmates are entitled to reasonable protection from sexual assault. While the courts have not recognized sexual orientation as a suspect classification, "nevertheless, a state violates the Equal Protection Clause if it disadvantages homosexuals for reasons lacking any rational relationship to legitimate governmental aims," the court reasoned, citing Romer v. Evans, 517 U.S. 620 (1996).

     Accordingly, the defendants were not entitled to qualified immunity on the prisoner's sexual orientation equal protection claims.

     Johnson v. Johnson, No. 03-10455 385 F.3d 503 (5th Cir. 2004).

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Work/Education Programs

Private industry was not entitled to any relief against federal prison industry for alleged unauthorized expansion of production of office furniture. Plaintiffs also failed to show that these actions constituted a "taking" of its property right to a certain market share of federal purchases of such furniture.

      A federal appeals court has ruled that the agency assigned by the federal government to manage prisoner labor, Federal Prison Industries, Inc., (known as UNICOR), properly acted within its administrative authority in "significantly expanding" the production of office furniture by prisoners. The court noted that there is a "long-standing conflict" between the federal government's policy of employing federal inmates in the manufacture of goods, and the "challenges faced by the private industries" compelled to compete with inmate-produced goods.

     The plaintiffs in the lawsuit, the Coalition for Government Procurement (CGP), a non-profit trade association representing manufacturers of office furniture, and several of its members, appealed the trial court's grant of summary judgment in favor of UNICOR and its Board of Directors in a lawsuit brought under the statute creating UNICOR, 18 U.S.C. Sec. 4121-4129, the Administrative Procedures Act, 5 U.S.C. §§ 701-706, and the just compensation clause of the Fifth Amendment to the U.S. Constitution,

     The Plaintiffs claimed that UNICOR violated these provisions from 1991-1995 when it significantly expanded the production of office furniture without initiating public notice and comment procedures, and that the Board violated the statutes in authorizing UNICOR's requests to expand furniture production. The appeals court noted that no other federal appeals court had previously dealt with these issues.

     The appeals court's opinion recites the history of the use of federal prison labor, and UNICOR in particular, and the concerns of private industry that the use of such labor would unfairly impact on its ability to compete. In 1988, in response to these concerns, Congress passed some amendments to UNICOR's organic statute, which mandated that it "conduct its operations so as to produce products on an economic basis, but avoid capturing more than a reasonable share of the market among Federal departments, agencies, and institutions for any specific product." UNICOR was also directed to concentrate on providing to the federal government only those products which "permit employment of the greatest number of inmates," and "diversify its products so that its sales are distributed among its industries as broadly as possible." See 18 U.S.C. § 4122(b)(3).

      The amendments also limited UNICOR's discretion to increase production levels by requiring that any decision to produce a new product or to "significantly expand the production of an existing product" be made by the Board, See 18 U.S.C. § 4122(b)(4), and for UNICOR and its Board to initiate a notice and comment procedure prior to entering a new product area or significantly expanding UNICOR's existing operations, see 18 U.S.C. § 4122(b)(4)-(5).

     The amendments, however, did not define the term "significantly expand," so UNICOR itself defined the term in guidelines it published after representatives from private industry, including CGP, the plaintiff in the immediate lawsuit, provided comments regarding an interim definition, based on a determination of UNICOR's existing market share for various products. UNICOR then pursued a policy described by the court as "maintaining a relatively low market share in new product areas, rather than significantly expanding its existing operations."

     As federal inmate populations continued to increase, however, UNICOR shifted its policy and requested that the Board authorize several significant expansions. It proposed to significantly expand its production of dorm and quarters furniture from approximately $20 million in annual sales in 1995 to $35 million in annual sales by the year 2000. In the course of addressing this proposal, UNICOR allegedly discovered several irregularities regarding its past compliance with the guidelines, and the Board ordered an internal investigation.

     The result of the investigation was a "White Paper" issued by UNICOR on January 26, 1996, identifying three occasions in 1991-1993 where UNICOR was obliged, but failed, to have formal approval by the Board for expansions in production. This was explained as the result of "the inherent difficulties in monitoring inmate employment levels, plant size, and equipment capacity, as well as interpretative difficulties with the definition of significant expansion."

     The Board subsequently partially authorized UNICOR's proposed significant expansion of dorm and quarters furniture production, and while acknowledging the violations revealed in the White Paper, determined that it would have approved these expansions had they been presented in a timely manner. It also determined, however, that UNICOR's then-current market share in the limited non-federal market for dorm and quarter's furniture, and the industry's "domination by small businesses," required a lesser expansion than sought, so an expansion to only $26 million in annual sales by the year 2000 was approved, rather than the $35 million requested.

     Unicor then also requested a significant expansion of its production of office furniture from $70.5 million in annual sales in 1995 to $150 million in annual sales by the year 2000, increasing its federal market share from approximately 15% to approximately 24%. The Board held a public hearing and CGP and other business associations presented a "coordinated opposition to the proposed significant expansion," following which the expansion was authorized, but only to annual sales of $130 million rather than $150 million. The Board also encouraged the pursuit of partnerships with private manufacturers to "lessen" the impact on the private sector.

     UNICOR also proposed expanding the production of office seating furniture from $54.4 million in annual sales in 1995 to $110 million in annual sales by 2001. The Board met and retroactively ratified the 1991-1992 unauthorized expansions and authorized the proposed expansion of office seating furniture production.

     Similar decisions were subsequently made in a number of areas of use of prison labor.

     In rejecting the plaintiffs' claims challenging these actions, the appeals court noted that it was "well-settled" that UNICOR's organic statute itself "does not authorize a private right of action," but that the Administrative Procedures Act allows for judicial review of agency action by a person suffering a legal wrong because of such action, under 5 U.S.C. Sec. 702.

     The trial court determined that the Plaintiff waived claims of unauthorized significant expansion and the retroactive authorization of these expansions because it did not raise these challenges during the hearings before the Board. The appeals court rejected this, finding that no such exhaustion requirement existed.

     The appeals court found, however, that neither equipment capacity nor plant size utilizing prison labor in the product categories at issue increased from 1991-1995, and that increases in UNICOR's production were caused by other factors, so that the Plaintiff suffered no prejudice as a result of UNICOR's failure to collect data regarding plant and equipment capacity. It concluded that the "unauthorized significant expansion" claims failed as a matter of law, as there was no action taken to "significantly expand" production, and the actual increases fell within the allowable market share for part of the period.

     To the extent that it exceeded this for another part of the period, the Board retroactively authorized it after becoming aware of it. The Plaintiffs were given adequate notice, the court found, that the Board would consider approving the past significant increases in office seating production, and had an opportunity to comment at that administrative hearing. Further, the plaintiff had not produced any evidence to support its claim that it suffered a $450 million loss of potential sales. While the appeals court found that the Board "lacked the authority" to retroactively authorize UNICOR's 1992 significant expansion of office seating furniture production, a remand to the Board was unnecessary, since the plaintiffs had not produced sufficient evidence showing an entitlement to relief.

     The plaintiffs also failed to show that the Board acted arbitrarily and capriciously in making a number of decisions in 1996 to significantly expand production of particular products.

     Lastly, the federal appeals court rejected the argument that UNICOR's increased production during 1991-1995 constituted a "taking" of the plaintiffs' property rights under the just compensation clause of the Fifth Amendment. That clause, the court noted, does not prohibit the public taking of private property, but only taking "without just compensation," in order to prevent the government from forcing some people alone to bear public burdens which should be borne by the public as a whole.

     The appeals court noted that the statute creating UNICOR had several provisions designed to ensure that UNICOR's operations do not "unduly burden" a single private industry or capture more than a reasonable share of the federal market for the products it creates.

     While the plaintiffs had a property right in the possibility of obtaining federal purchases of their products through the federal procurement process, they failed to provide evidence supporting their claim that the increase in production by UNICOR resulted in $450 million in lost sales or that its interests should prevail over the legitimate interests of the federal government in employing federal inmates.

     The court concluded that, in the main, the remedy for the plaintiffs for any complaints they had about UNICOR practices had to be pursued in the legislature, not in the courts.

     Coalition for Gov't Procurement v. Fed. Prison Indus., Inc., No. 01-2231, 365 F.3d 435 (6th Cir. 2004).

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Noted In Brief

Access to Courts/Legal Info

     The fact that a Tennessee inmate was incarcerated did not make him immune from the legal requirement that he offer expert witness affidavits opposing the defendants' motions for summary judgment in his medical malpractice lawsuit arising out of the death of his mother. Additionally, the fact that he was acting as his own lawyer and was incarcerated did not entitle him to the appointment of a "special master" to assist him in the discovery process. Prisoner also had no arguable right to appointed medical experts. "Courts should not allow pro se litigants, including incarcerated prisoners, to shift the burden of litigation to the courts or to their adversaries." The court also noted that "indigent civil litigants, unlike indigent criminal defendants, possess neither a constitution nor statutory right to court-appointed assistance." Hessmer v. Miranda, No. M2001-02056-COA-R3-CV, 138 S.W.3d 241 (Tenn. Ct. App. 2003). [PDF]

     Iowa inmates were not third-party beneficiaries of a contract between the state Department of Corrections and the state Office of the Public Defender to supply legal services to prisoners. Additionally, two plaintiff prisoners failed to show that their constitutional rights were violated by the failure to provide them with more assistance in connection with court proceedings when one of them did not show that he had been denied any specific request, and the second was represented by a competent appointed lawyer. There was a genuine issue of material fact, however, as to whether a third prisoner's constitutional right to file a petition for a writ of certiorari in the U.S. Supreme Court was violated by the existence of an inadequate prison law library and the refusal of the public defender's contract attorney to assist him. Walters v. Kautzky, No. 02-1177, 680 N.W.2d 1 (Iowa 2004).

     Even if prison law librarian failed to timely complete prisoner's request for copies of certain documents, this did not show an unconstitutional denial of his right of access to the courts, when the documents in question would not have changed a federal magistrate's conclusion that certain defendants in the prisoner's civil rights lawsuit should be dismissed for lack of personal involvement in the incidents at issue, and that the history of his treatment for respiratory problems, including a mix-up in his prescriptions, showed nothing more than negligence at most, and was inadequate to show a constitutional violation. Rumsey v. Michigan Department of Corrections, No. 03-CV-72221-DT, 327 F. Supp. 2d 767 (E.D. Mich. 2004).

Attorneys' Fees

     Prisoner who prevailed on his claim that his right of access to the courts was unconstitutionally interfered with by denial of physical access to the prison's law library (allowing him only to request particular materials be brought to him in his cell by providing their precise citation) was entitled to an award of $99,981.43 in attorneys' fees and costs. Amount of attorneys' fees award in case were not limited by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(1)(A) when a settlement agreement provided that fees would be awarded under 42 U.S.C. Sec. 1988. LaPlante v. Pepe, #01-10186-NG, 307 F. Supp. 2d 219 (D. Mass. 2004).

Chemical Agents

     Prison employees did not use excessive force by spraying prisoner with pepper spray after he refused to exit a shower. The evidence showed that they applied the force used in a good-faith effort to maintain or restore discipline, and not maliciously to cause injury or pain. A videotape of the incident showed that the prisoner refused to obey several direct orders to leave the shower before the use of the pepper spray. Additionally, the use of the spray only caused discomfort, rather than any physical injury. Jennings v. Mitchell, No. 03-1922, 93 Fed. Appx. 723 (6th Cir. 2004).

Defenses: Service of Process

     Inmate acting as his own attorney was entitled to rely on service of his lawsuit on defendant prison officials by the U.S. Marshals Service when he adequately identified the defendants. Failure to achieve timely service on the defendants was therefore excused. Ruddock v. Reno, #01-179, 104 Fed. Appx. 204 (2nd Cir. 2004). [PDF]

Defenses: Statute of Limitations

     Prisoner's civil lawsuit concerning alleged improper confiscation of legal papers from his cell was regarded as filed when he delivered it to prison officials for forwarding to the court, even though it was ultimately not actually received by the court within the applicable six-month statute of limitations period. Court also rules that lawsuits against a public entity or public employee are governed by the six-month specific statute of limitations rather than a longer statute of limitations applicable to private defendants. Moore v. Twomey, No. C044749, 16 Cal. Rptr. 3d 163 (Cal. App. 3d Dist. 2004). [PDF]

Drugs and Drug Screening

     Failure of a misbehavior report to use the term "cannabinoids" in describing the positive results of an accused prisoner's second urine drug screening test was insufficient as a basis to overturn a guilty determination in a prison disciplinary proceeding. The report was adequate in stating that the first drug test indicated the use of cannabinoids, and that the second test "also proved positive." Sabater v. Selsky, 772 N.Y.S.2d 733 (A.D. 3d Dept. 2004). [PDF]

Employee Injury/Death

     Manufacturer of smoke grenade had a duty under Minnesota state law to provide a warning of the danger of use of the product indoors. Court finds that there was a genuine issue of fact as to whether the sale of the manufacturer to a successor corporation made the successor corporation liable in a products liability lawsuit by a prison guard injured during a training exercise using the smoke grenade. Gamradt v. Federal Laboratories, #03-3658, 380 F.3d 416 (8th Cir. 2004). [PDF]

Federal Tort Claims Act

     Surviving family of federal prisoner who died from cancer while incarcerated did not have standing under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., to pursue claims for emotional distress they allegedly suffered from his death. Gonzalez-Jiminez De Ruiz v. U.S., #03-10274, 378 F.3d 1229 (11th Cir. 2004). [PDF]

     U.S. government could not be sued, under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., for negligent hiring, supervision, management, and training of an officer who allegedly raped a female jail inmate while assigned to transport her between correctional facilities. Because the underlying claim arose out of the alleged commission of intentional wrongdoing, the rape, and the FTCA only provides for lawsuits based on negligence, the U.S. government was immune from the plaintiff's claims. Martinez v. U.S., No. CV02-1164, 311 F. Supp. 2d 1274 (D.N.M. 2004).

Filing Fees

     Massachusetts inmate's lawsuit against prison superintendent and the Commissioner of Corrections was properly dismissed for his failure to pay a reduced filing fee of $25 ordered by the trial court. Despite the fact that his account had been frozen to pay his restitution, a state statute required the prison superintendent to disburse funds for such costs to the court for inmates claiming to be indigent, and the plaintiff failed to submit a written request to the superintendent for such payment. Cepulonis v. Superintendent, Mass. Corr., #03-P-1452, 813 N.E.2d 882 (Mass. App. Ct. 2004).

First Amendment

     Prisoner failed to show that his placement in administrative segregation after he finished a period of disciplinary segregation was in retaliation for his exercise of his First Amendment rights in complaining of prison officials' alleged racism. The stated reasons for placing the prisoner, who had previously been convicted of drug trafficking activities within the prison, in administrative segregation were within the scope of established policy. Hall-Bey v. Hanks, No. 02-4050, 93 Fed. Appx. 977 (7th Cir. 2004).

Medical Care

     Prisoner who complained of chest pains and was later diagnosed as suffering from a hiatal hernia or gastroesophageal reflux disease and high blood pressure did not show that county jail officers acted with deliberate indifference to his serious medical needs by immediately treating him with over-the-counter antacids. There was no evidence that the prisoner suffered any lasting physical injury, and he was later given prescription heartburn medication. Stedman v. Dunn, #03-3261, 98 Fed. Appx. 769 (10th Cir. 2004).

     Estate of jail prisoner who contracted bacterial meningitis and died from it while incarcerated could pursue claim that conditions in the facility, including overcrowding, poor ventilation, and structural defects caused or contributed to the prisoner's death in violation of the Eighth Amendment. There were factual issues concerning whether the defendants failed to maintain sanitary conditions in the jail and whether jail medical personnel were deliberately indifferent to the prisoner's resulting medical condition. Brown v. Mitchell, No. CIV.A. 3:03CV820, 327 F. Supp. 2d 615 (E.D.Va. 2004).

     Prisoner failed to show that pharmacy, in allegedly filling his prescription with the wrong medication, was deliberately indifferent to his serious medical needs or conspired to interfere with his civil rights. The prisoner also failed to provide any evidence that the mistake was based on a racial motivation. Davila v. Secure Pharmacy Plus, No. 3:02CV652, 329 F. Supp. 2d 311 (D. Conn. 2004).

Prison & Jail Conditions: General

     An eight-day deprivation of hygiene products was not serious enough to constitute a violation of the Eighth Amendment prohibition on cruel and unusual punishment. Dopp v. W. Dist. of Okla., #04-6065, 105 Fed. Appx. 259 (10th Cir. 2004).

Prison Litigation Reform Act: Exhaustion of Remedies

     Defendants in prisoner's federal civil rights lawsuit were entitled to summary judgment when he failed to make specific allegations from which the trial court could determine which, if any, of his claims he had exhausted available administrative remedies on, as required by 42 U.S.C. Sec. 1997e, and he failed to identify the prison employees named as defendants in his lawsuit in his grievances and failed to assert grievances about any specific action allegedly performed by them. Williams-El v. McLemore, No. CIV. 98-74042, 327 F. Supp. 2d 784 (E.D. Mich. 2004).

     When the plaintiff prisoner showed that he had exhausted available administrative remedies as to some claims in his lawsuit, but not as to others, the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, did not require the dismissal of his lawsuit in its entirety. Prisoner stated an arguable due process claim by alleging that he was not given any outside exercise for a period of time and was prevented from showering for weeks during his disciplinary confinement in a special housing unit when the only evidence supporting the discipline was an accusation from a confidential informant that he had been selling drugs. Ortiz v. McBride, No. 02-0088, 380 F.3d 649 (2nd Cir. 2004). [PDF]

     Prisoner, who received favorable rulings in his prison grievances concerning alleged inadequate medical treatment, and specifically, special orthopedic footwear provided to him after foot surgery, sufficiently exhausted his available administrative remedies when the favorable rulings allegedly failed to result in any relief. Appeals court states that a prisoner who does not receive promised relief under such circumstances is not required, under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, to file yet another grievance concerning that. Abney v. McGinnis, #02-0241, 380 F.3d 663 (2nd Cir. 2004). [PDF]

Prisoner Assault: By Officers

     Illinois prisoner awarded $28,000 in compensatory damages and $22,000 in punitive damages on his claim that he was beaten by correctional officers who allegedly were angry that he was taking too much time to pack his property prior to a transfer to another facility. Mickey v. Dargis, #99C-7281, U.S. Dist. Ct., N.D. Illinois, reported in Chicago Daily Law Bulletin, p. 25 (October 1, 2004).

Prisoner Discipline

     Illinois prisoner was entitled to a new hearing in his prison disciplinary case when Department of Corrections refused to interview witnesses for his defense in response to his request. Gilchrist v. Synder, #4-03-0629, 814 N.E.2d 147 (Ill. App. 4th Dist. 2004).

     Misbehavior report based on signed statements gathered from witnesses to alleged assault and fighting was sufficient to support disciplinary action against accused prisoner. Appellate court rejects the argument that the author of the report had to witness the fight himself in order for the report to be relied on in the hearing. Howard v. Goord, 779 N.Y.S.2d 871 (A.D. 3d Dept. 2004). [PDF]

     Prisoner's disciplinary conviction for making threats and interfering with an employee was adequately supported by correctional officer's statement that he had screamed racial epithets, profanity, and threats at her when she told him that she could not stay after the prisoner said that he was "not finished" with her. The differing versions of the incident presented by the prisoner and others "presented a credibility issue" that the hearing officer was free to resolve against the prisoner. Goncalves v. Donnelly, 779 N.Y.S. 842 (A.D. 3d Dept. 2004). [PDF]

Prisoner Injury/Death

     Jail personnel were not deliberately indifferent to a substantial risk of injury or death for pretrial detainee subsequently found dead in her cell either from self-hanging or from strangulation by another person. There were no prior signs that the detainee, arrested for allegedly operating a vehicle under the influence of drugs, was suicidal and there was no information from which they would have known that she was at risk of harm by someone else, and no evidence that the jailers themselves murdered her. Stiltner v. Crouse, No. 1:03 CV 00078, 327 F. Supp. 2d 667 (W.D.Va. 2004).

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

     Publication: Drug Detection in Prison Mailrooms. National Institute of Justice, U.S. Department of Justice, November 2004. Corrections officials need an effective and efficient method to detect the presence of drugs in the thousands of letters and packages that are processed daily in prison mailrooms. Recent tests of detection systems available in the commercial market identified ion mobility spectrometry as a technology with the potential to improve the mail screening operations in correctional facilities. [PDF]

     Publication: Duress Systems in Corrections Facilities. National Institute of Justice, U.S. Department of Justice, September 2004. A duress system helps corrections facilities respond quickly and effectively to assaults on staff and other emergencies. Find out how to identify, select, and deploy the system that best suits your facility's needs.[PDF]

     Statistics: Prisoners in 2003 Bureau of Justice Statistics, U.S. Department of Justice. Reports the number of persons in State and Federal prisons at yearend, compares the increase in the prison population during 2003 with that of the previous year, and gives the prison growth rates since 1995. The report also provides the number of male and female prisoners on December 31, 2003. It includes incarceration rates for the States and the 5 highest and 5 lowest jurisdictions for selected characteristics, such as the growth rate, number of prisoners held, and incarceration rates. Tables present data on prison capacities and the use of local jails and privately operated prisons. Estimates are provided on the number of sentenced prisoners by gender, race, and Hispanic origin. Highlights include the following: During 2003, the number of inmates under State jurisdiction increased by 20,370; On December 31, 2003, State prisons were estimated to be at capacity or 16% above capacity, while Federal prisons were operating at 39% above capacity; At yearend 2003, 101,179 women were in State or Federal prisons - 6.9% of all prison inmates.(11/04) NCJ 205335 Press release | Acrobat file (602K) | ASCII file (33K) Spreadsheets (zip format 21K)

     Statistics: Profile of Nonviolent Offenders Exiting State Prisons, Bureau of Justice Statistics, U.S. Department of Justice. Provides a description of the general characteristics of prison populations serving time for nonviolent crimes as they exit State prisons. Nonviolent crimes are defined as property, drug, and public order offenses that do not involve a threat of harm or an actual attack upon a victim. To conduct this analysis, BJS used data collected under two statistical programs, the National Recidivism Reporting Program that last collected data on those discharged from prisons in 15 States in 1994 and the Survey of Inmates in State Correctional Facilities last conducted in 1997. This report examines the responses of inmates who indicated to interviewers that they expected to be released within 6 months. (10/04) NCJ 207081 Acrobat file (528K) | ASCII file (5K) | Spreadsheets (zip format 8K)


     • Abbreviations of Law Reports, laws and agencies used in our publications.

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

Cross References

Featured Cases:

Access to Courts/Legal Info -- See also, Prison Litigation Reform Act: Exhaustion of Remedies
Disability Discrimination: Prisoners -- See also, Medical Care
First Amendment -- See also, Prisoner Discipline
Homosexual/Bi-Sexual Prisoners -- See also, Sexual Assault
Prison Litigation Reform Act: Three Strikes Rule -- See also, Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Death/Injury -- See also, Emotional Distress
Prisoner Discipline -- See also, Drugs and Drug Screening
Sexual Offenders -- See also, Prison Litigation Reform Act, Exhaustion of Remedies

Noted In Brief Cases:

Access to Courts/Legal Info -- See also, Attorneys' Fees
Access to Courts/Legal Info -- See also, Defenses: Statute of Limitations
Attorneys' Fees: Prison Litigation Reform Act -- See also, Attorneys' Fees
Exercise -- See also, Prison Litigation Reform Act: Exhaustion of Remedies (2nd case)
Inmate Funds -- See also, Filing Fees
Medical Care -- See also, Access to Courts/Legal Info (3rd case)
Medical Care -- See also Federal Tort Claims Act (1st case)
Medical Care -- See also, Prison Litigation Reform Act: Exhaustion of Remedies (3rd case)
Prisoner Assault: By Officers -- See also, Chemical Agents
Prisoner Discipline -- See also, Drugs and Drug Screening
Prisoner Suicide -- See also, Prisoner Injury/Death
Segregation: Administrative -- See also, First Amendment
Sexual Assault -- See also Federal Tort Claims Act (2nd case)

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