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Jail and Prisoner Law Bulletin
A civil liability law publication for officers, jails, detention centers and prisons
ISSN 0739-0998 - Cite this issue as: 2006 JB Aug (web edit.)
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Featured Cases – with Links

Disability Discrimination: Prisoners
First Amendment
Inmate Property
Medical Care (2 cases)
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Assault: By Officers
Prisoner Discipline
Sexual Assault
Work/Education Programs

Noted in Brief -- With Some Links

Chemical Agents
Defenses: Eleventh Amendment Immunity
Defenses: Qualified Immunity
First Amendment
Medical Care (6 cases)
Personal Appearance
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Assault: By Inmate (2 cases)
Prisoner Discipline (2 cases)
Prisoner Restraint
Prisoner Suicide (2 cases)
Procedural: Jurisdiction
Public Protection
Religion (3 cases)
Sexual Offender Programs & Notification




Disability Discrimination: Prisoners

Former prisoner suffering from Lou Gehrig's Disease presented sufficient evidence to create genuine issues as to whether prison officials engaged in disability discrimination against him by failing to adequately accommodate his needs. Claimed problems with his medical treatment, however, did not rise to the level of disability discrimination.

     A former prisoner at the New Hampshire State Prison suffers from amyotrophic lateral sclerosis (ALS), otherwise known as "Lou Gehrig's Disease." He filed a lawsuit against the New Hampshire Department of Corrections and a number of its employees and officials, claiming that they committed disability discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165. He argued that they failed to properly treat his disease and also failed to reasonably accommodate his disability resulting from the disease.

     The trial court found that no violation of the ADA occurred, and granted the defendants' motion for summary judgment. A federal appeals court vacated this decision, finding that the trial judge failed to address evidence that might be sufficient to create genuine issues as to whether the defendants violated the ADA, and therefore ordered further proceedings.

     Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Implementing federal regulations found at 28 C.F.R. Sec. 35.130(b)(7) require public entities "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity."

     The defendants in the lawsuit did not contest that the plaintiff was a qualified individual with a disability, but rather argued that they provided him with reasonable modifications that he requested, except where accommodating his requests would endanger prison security. The trial court agreed with the defendants, and found that prison doctors properly diagnosed and treated his disease, with any treatment or diagnosis delays due to scheduling conflicts or other issues beyond their control.

    The trial court also rejected the plaintiffs argument that the defendants failed to reasonably accommodate his disability by denying his request for the use of a cane, denying his request for an early chow pass, handcuffing him behind his back despite a prison pass allowing him to be handcuffed in front, refusing to provide him with a shower chair or accessible shower facilities, housing him on the third tier of the prison, requiring him to sleep on the top bunk, and failing to provide accessible facilities in his cell. The trial judge found that the decisions concerning the cane, early chow pass, and front handcuffing were justified by security concerns, and that the plaintiff failed to provide admissible evidence that he submitted a formal request to be housed on a lower tier, filed a complaint about his bottom bunk pass not being honored, or that he made a request for accessible facilities in his cell.

     The appeals court agreed with a number of these conclusions, but found that the plaintiff did present admissible evidence that could create genuine issues in four areas--the alleged failure to provide the plaintiff with regular access to his prescription medications, the failure to provide him with access to a shower chair or accessible shower facilities, the failure to honor the plaintiff's front cuff pass, and the failure to honor his bottom bunk pass or accommodate his request to be placed on a lower tier.

     It rejected the argument however, that the actions regarding the diagnosis, medical consultations, physical therapy, or medical dosages were so unreasonable as to show that the defendants were discriminating against him because of his disability, and might, at most, state medical malpractice claims.

     Kiman v. New Hampshire Dep't of Corr., No. 05-1998, 2006 U.S. App. Lexis 16189 (1st Cir.).

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

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First Amendment

•••• Editor's Case Alert ••••

U.S. Supreme Court overturns an appeals court decision that a prison policy forbidding certain very dangerous and "recalcitrant" prisoners access to newspapers, magazines, and photographs violated the First Amendment as a matter of law. Policy was justified by prison officials' legitimate interest in providing such prisoners with incentives for improvement of their behavior.

     A plurality of the U.S. Supreme Court has reversed an appeals court ruling that a Pennsylvania prison policy denying newspapers, magazines and photographs to a group of "specially dangerous and recalcitrant inmates" violates the First Amendment to the Constitution. Four Justices, Justice Breyer, joined by Chief Justice Roberts, Justice Kennedy, and Justice Souter, joined in the opinion. Under Turner v. Safley, 482 U.S. 78 (1987), prison rules restricting a prisoner's constitutional rights, such as the First Amendment right of access to information must be "reasonably related to legitimate penological interests."

     The case reached the Court after the prison officials filed a motion for summary judgment, along with a statement of undisputed facts. The plaintiff prisoner did not challenge any of the facts relied on by the prison officials, but instead filed his own motion for summary judgment, relying on the same "undisputed facts." A federal appeals court found that the prison rule was unconstitutional as a matter of law.

     Justice Breyer's opinion, on behalf of himself and three other Justices, found that the correctional officials' justifications for the policy, such as the need to motivate improvements in behavior among particularly difficult prisoners to which the policy applies, were sufficient to meet the legal test in Turner. Prison officials have limits on what they can deny or give to such prisoners, who already have lost most privileges, and prison officials believe that access to items such as photos, magazines, and newspapers are legitimate incentives for inmate improvement. Federal courts, the opinion noted, must give deference to the professional judgment of correctional officials.

     The deprivations, under the policy, are only imposed on prisoners with the most serious behavior problems. Without further materials from the prisoner challenging prison officials' rationale for the policy, or challenging any of the facts on which the prison officials relied, the Court rejected the prisoner's essential argument, which was that the policy was improper on its face.

     Justice Thomas, joined by Justice Scalia, wrote a separate opinion concurring in the Court's judgment, and criticized the legal standard in Turner. Justices Stevens and Ginsburg dissented, and Justice Alito took no part in the case.

     Beard v. Banks, No. 04–1739 2006 U.S. Lexis 5176.

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

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Inmate Property

North Dakota state prison rules prohibiting inmates from possessing property, such as religious magazines, received from other prisoners, and classifying such "passed-on" property as contraband, upheld as reasonable.

     A prisoner at the North Dakota State Penitentiary in Bismarck had, in his cell, religious magazines he obtained from other prisoners, as well as a picture of an American flag he had cut out of a newspaper and posted on the wall in an area in his cell where inmates were authorized to hang pictures. Correctional officers confiscated the magazine, and ordered him to remove the U.S. flag, after which they began disciplinary proceedings against him.

     Prison officials argued, in the prisoner's subsequent federal civil rights lawsuit, that the magazines were subject to confiscation because they had arrived at the prison address to other inmates, from whom he received them. An Inmate Handbook allegedly "clearly states" that prisoners can only possess magazines addressed directly to them. The U.S. flag, they further argued, was properly subject to removal because it was property that was altered from its original state by being cut from a newspaper, and was therefore also considered contraband under the Inmate Handbook.

     The Supreme Court of North Dakota upheld the rules in question.

     It found that the state prison's rule against the "passing of property," under which possession of another inmate's property is considered contraband, as well as a "publisher-only" rule, under which inmates could only possess books, magazines, and periodicals they received directly from the publisher, were valid.

     These rules, the court found, were rationally related to legitimate governmental interests. Allowing inmates to exchange property and to receive publications from outside sources other than directly from publishers would "facilitate prohibited communications secretly among inmates and increase the possibility they would receive prohibited communications or concealed weapons from outside the prison."

     Further, the court noted, these rules allowed for the possession of magazines, books, and newspapers as property by prisoners as long as they received it on their own and did not exchange it with each other. Such exchanges, the court reasoned, could result in circumstances encouraging theft, extortion, strong-arm tactics, or communications for gang or other illicit purposes.

     Any alternatives to these rules, the court found, would likely require increased monitoring of "interactions between inmates and significant monitoring of all items in the inmates' possession through increased cell searches," further showing that the rules adopted were reasonable.

     Larson v. Schuetzle, No. 20050418, 712 N.W.2d 617 (N.D. 2006).

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

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Medical Care

Estate of jail inmate who died from untreated methadone withdrawal on the sixth day of a ten day sentence for a traffic offense presented sufficient evidence from which a jury could find that the county had a widespread custom or practice of failing to provide timely methadone treatment to prisoners.

     The wife and estate of a prisoner who died on the sixth day of a ten day sentence for a traffic violation being served at Cook County Jail in Illinois claimed that he was provided with inadequate medical care which caused his death. The lawsuit claimed that, despite indications that the prisoner was in "excruciating pain" because of his sudden withdrawal from methadone, he was not provided with any methadone during his incarceration.

     A federal trial court granted summary judgment for all defendants, ruling that the undisputed facts failed to show that any of the individual defendants were deliberately indifferent to the prisoner's medical needs, and that the plaintiff had "waived" any claims against the county.

     A federal appeals court reversed, rejecting the argument that claims against the county had been waived, and also found that sufficient evidence had been presented for a reasonable jury to conclude that the county had a "widespread custom or practice" of failing to provide timely methadone treatment, and that three individual defendants, a correctional officer, a sergeant, and a social worker were deliberately indifferent to the decedent's medical needs.

     The decedent reported to the jail to serve his ten-day traffic violation sentence. He was on a methadone maintenance program at the time, and had a history of drug and alcohol addiction. He received his last dose of methadone just before reporting to the jail, and allegedly never received any more despite repeated requests. He subsequently suffered a cerebral aneurysm and died.

     The prisoner was screened through the jail's customary intake medical screening process, and indicated during it that he was receiving methadone treatment. No one from the jail's pharmacy, according to the plaintiff, phoned the methadone clinic for three days to verify his prescription. Even after the prescription was verified, the prisoner allegedly was not brought to the pharmacy to receive methadone.

     Inmate workers allegedly reported to the defendant correctional officer that the prisoner was "dope sick" and in need of medical attention, and the prisoner himself allegedly explained his problem to the social worker. When the social worker called the paramedics' station, she was allegedly simply told that it would take three days to obtain verification of the methadone prescription, and she allegedly did not call the 24-hour emergency room available for emergency treatment of jail inmates.

     The correctional officer also failed to call the paramedics himself, and failed to verify whether medical attention was ever obtained, and he also did not call the 24-hour emergency room. While the officer allegedly called the sergeant, his supervisor, the sergeant allegedly also did not call the paramedics, any emergency personnel, or the 24-hour emergency room.

     The prisoner's wife allegedly contacted the jail and attempted to get someone there to give her husband methadone, to no avail. A paramedic allegedly believed that the prisoner had not yet been approved for methadone, even though he had, in fact, been approved two days earlier. He allegedly was never seen by paramedics for the purpose of alleviating his methadone withdrawal, and was only seen by them after he suffered a seizure in connection with his cerebral aneurysm, from which he died shortly thereafter.

     The appeals court rejected the trial court's reasoning that the plaintiff waived her claims against the county by providing only "cursory allegations and arguments," and failing to cite legal authority in her memorandum response to the motion for summary judgment. First, the appeals court found, that memorandum stated the proper standard for municipal liability, the violation of a federal right as a result of an express municipal policy, widespread custom, or deliberate act of a decision-maker for the county, specifically deliberate indifference to the decedent's need for medical treatment, in violation of the Eighth Amendment.

     The appeals court found no reason why the plaintiff needed to "cite additional legal authority," when her argument depended on the application of facts to the "well-established" legal standard for municipal liability already presented in the defendants' brief.

     The plaintiff presented testimony by a pharmacist that could be interpreted as establishing that there were "essentially no policies or procedures" in place at the jail to ensure that the verification of an inmate's outpatient methadone treatment program is conducted in a timely manner, or to ensure that once such verification is obtained, the inmate is brought to the pharmacy for methadone in a reasonable time period. Indeed, the pharmacist testified that there was essentially no "established checks-and-balances" system in place to ensure that prisoners suffering from methadone withdrawal do not go untreated for several days or longer. These delays may also be extended if a prisoner is admitted to the jail during the weekend.

     The appeals court also found that the plaintiff was not required to show that the alleged widespread custom or practice of delay resulted in repeated past injuries to other inmates suffering from methadone withdrawal. It was enough, the court held, to provide evidence tending to show that the county routinely failed to provide methadone to inmates for several days, even if it could not be shown that the alleged repeated pattern of delay "actually caused pain and suffering" to specific individuals.

     Davis v. Carter, No. 05-1695, 2006 U.S. App. Lexis 16183 (7th Cir.).

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

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An alleged one-month delay in x-raying a prisoner's hand after a nurse tentatively diagnosed him as having a fractured finger was not shown to be anything more than negligence, which was insufficient for a federal constitutional claim. Additionally, federal appeals court finds, no reasonably jury could find that correctional employees used excessive force against the inmate during the incident that led to his injuries, when he continued to assault the officers even after he was restrained, and was subsequently criminally convicted for his actions.

     A Missouri prisoner, while being held at the Jefferson City Correctional Center, became involved in a physical confrontation with two employees of the Missouri Department of Corrections, a caseworker and a classification assistant. The altercation was over the prisoner's wearing of an earring, which was prohibited in the institution. The prisoner claimed that the correctional employees used excessive force against him, while the employees claimed that the prisoner violently resisted them and attacked them, causing both of them serious injuries--with one of them suffering a triple fracture in his face and a collapsed sinus wall and the other suffering from short-term memory loss, a permanent 25% disability in his left shoulder, and headaches.

     The prisoner filed a lawsuit against the correctional employees for excessive use of force, and also claimed that his rights to adequate medical treatment for his injuries from the incident were violated.

     The prisoner was removed to administrative segregation following the incident, where he was examined by a nurse who treated him for skin abrasions, and provided him with antibiotic ointment for his injuries. Another nurse who subsequently examined his hand and his swollen finger stated the opinion that he likely had a fractured finger. Approximately a month later, an x-ray revealed a fracture in the finger, and orthopedic treatment was provided.

     The federal appeals court found that no reasonable jury could find that the correctional employees used excessive force. Indeed, the prisoner was criminally prosecuted for his role in the confrontation and was found guilty of violence to an officer of the Department of Corrections. He was also placed in administration segregation and received a conduct violation as a result of his actions. The court found that the criminal conviction, the injuries suffered by the employees, and the evidence showing that the prisoner continued to resist and attack them even when he was restrained showed that the force used against him was not excessive under the circumstances.

     The appeals court further found that the prisoner failed to show that medical personnel acted with deliberate indifference to his serious medical needs. While the prisoner presented evidence of an objectively serious medical need that correctional personnel knew of, there was no evidence that they deliberately disregarded those needs, the court stated. While it was true that there was a delay of a month between a nurse's "tentative diagnosis" that the prisoner's finger was fractured, and the date his hand was x-rayed, there was no evidence that the delay was the "result of anything other than negligence." Mere negligence, the court commented, does not constitute a constitutional violation, and the prisoner could point to no policy, custom, or official activity that resulted in the delay.

     Johnson v. Hamilton, No. 05-1453, 2006 U.S. App. Lexis 16767 (8th Cir.).

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

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Prison Litigation Reform Act: Exhaustion of Remedies

•••• Editor's Case Alert ••••

U.S. Supreme Court rules that prisoners are required, under the Prison Litigation Reform Act, to properly exhaust available administrative remedies for their grievances before pursuing federal lawsuits over prison conditions, including complying with procedural rules, such as deadlines for grievance filing.

     Under the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, prisoners are required to exhaust any available administrative remedies for their grievances before pursuing a lawsuit concerning prison conditions in federal court. A California prisoner filed a grievance with state prison officials about his conditions of confinement, specifically concerning restrictions placed on his participation in "special programs," including religious activities, while he was in administrative segregation for allegedly engaging in "inappropriate activity" in the prison chapel. His grievance was rejected by state correctional officials because it was not filed within 15 working days of the action being challenged, as required under state law, but rather six months later.

     The prisoner then filed a civil rights lawsuit in federal court, and the trial court granted a motion to dismiss the lawsuit because the prisoner had failed to fully exhaust his administrative remedies as PLRA requires. A federal appeals court subsequently reversed, holding that the prisoner had satisfactorily exhausted administrative remedies, and therefore should be allowed to pursue his federal lawsuit, because no administrative remedies remained available to him under state law.

     The U.S. Supreme Court has rejected the argument that a prisoner can satisfy the PLRA's exhaustion requirement by filing an "untimely or otherwise procedurally defective" administrative grievance or appeal. It held, with two Justices dissenting, that compliance with the PLRA statute requires "proper exhaustion" of the administrative remedies made available by prison authorities.

     It agreed with the prison officials in the case that a prisoner is required, before pursuing his federal lawsuit, to complete the administrative review process in compliance with applicable procedure rules, including deadlines. It rejected the argument that a prisoner can simply file suit once administrative grievance procedures and appeals are no longer available to himself or herself.

     This, the Court's majority stated, provides prisoners an effective incentive to fully use prison grievance procedures, which can also allow prisons an opportunity to correct their own errors without litigation, which was one of the goals of Congress in passing the PLRA. This also helps ensure that the lawsuits which are ultimately filed in federal court are of higher quality, and creates an administrative record which is helpful to the court.

     The other interpretation, urged by the plaintiff prisoner, would, the Court reasoned, make the PLRA's requirement of exhaustion of remedies ineffective.

     The Court believed that any other interpretation would allow prisoners to deliberately bypass the administrative grievance process by ignoring or violating procedural rules without any penalty for doing so.

     The Court's opinion was written by Justice Alito, with Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas agreeing. Justice Breyer wrote a separate opinion concurring in the Court's judgment, and Justice Stevens wrote a dissent in which Justices Souter and Ginsburg joined, arguing that the majority's interpretation improperly allows correctional officials to impose burdensome requirements such as very short limitations periods, thus denying prisoners a right to pursue claims for violations of federal rights. The dissent also argued that the "majority leaves open the question whether a prisoner's failure to comply properly with procedural requirements that do not provide a 'meaningful opportunity for prisoners to raise meritorious grievances' would bar the later filing of a suit in federal court," without making clear what it means by "meaningful opportunity," and that this question is "sure to breed a great deal of litigation in federal courts in the years to come."

     Woodford v. Ngo, No. 05–416, 2006 U.S. Lexis 4891.

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

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Prisoner Assault: By Officers

Two correctional officers were not entitled to summary judgment when there were factual issues about whether they used excessive force and pepper spray against female inmate at a time when she was allegedly not actively resisting them.

     A female inmate at the Jasper County Detention Center in Missouri claimed that correctional officers there used excessive force against her. A federal appeals court upheld summary judgment for most of the defendants, but reversed it as to claims against two officers, finding that there was sufficient evidence to create a triable issue as to whether they used excessive force against the prisoner.

    The plaintiff prisoner and three other female inmates, including her two sisters, were put in lockdown after staff members received complaints that they had "bullied" other prisoners. The four women were "upset" when this order was announced to them, and the plaintiff admits that she did not, at first, cooperate with it, and asked to speak with a sergeant. A number of other officers and officials then came to the common room where the women were.

    The plaintiff and her sisters then returned to their cell, and one of the sisters started banging a shampoo bottle on a desk and throwing toilet paper at the wall. Officers entered the cell, and the plaintiff states that she stepped in front of the sergeant, asking him not to touch her sister, telling him that she could calm her down. She was subsequently allegedly tackled to the floor, and an attempt to handcuff her was made, during which a number of officers allegedly piled on top of her. While she says she attempted to explain that her hand was stuck, an officer allegedly placed a Orcutt Police Nonchaku (OPN) around her neck and choked her, twisting the device until it broke. She also claimed that her head was slammed down on the floor, that her hair was pulled, and that an officer sprayed mace on her face and eyes.

     All of this allegedly caused bruising and lacerations on her arms, a broken thumb, and two black eyes.

     The officers stated that the sister was throwing objects around the cell, that the plaintiff "lunged" at one of the officers trying to restrain her sister, and that an officer was able to handcuff one of her hands, but not the other, because the plaintiff "kept turning," and she kept resisting after she was taken to the ground, locking her hands under her stomach. The OPN, an officer claimed, was used on her forearm to try to open her hand, and one of the plastic sticks on it broke.

     The appeals court found that the plaintiff stated possible claims for excessive use of force against two officers. The detention center's policies allow the use of force and the use of pepper spray by officers in limited circumstances. Officers may use force to defend themselves or others or to subdue a resisting subject. Mace may be used for "self-defense, defense of a third person, or to subdue a violently resisting subject" but not to "threaten, to elicit information or persuade people to comply with orders" once they are handcuffed or otherwise properly in custody. The regulations on use of pepper spray further state that it may be used when an aggressor has failed to comply with an officer's verbal instructions and a warning has been given, but may not be used in "anticipation against mere verbal threats of violence or resistance."

     In this case, the plaintiff claimed that force was used against her by two officers in violation of these policies at a time when she was not resisting. She claimed that she was trying to "calm and protect" her sister, when she was suddenly thrown to the ground, and buried under officers, as well as choked and maced without warning.

     The appeals court found that there were several material issues of fact about whether two of the officers used excessive force, including whether their acts were defensive in nature, "or motivated by anger," and whether they were necessary to maintain order or instead "excessive reactions by frustrated officers," as well as whether the amount of force used was appropriate in the situation they faced. The plaintiff also disputed issues concerning whether she failed to comply with orders the officers gave her in the cell, and whether she was actively resisting them, as well as whether or not a warning was issued before the use of the pepper spray.

    The appeals court, however, found no basis for claims against supervisory personnel who were present. The plaintiff provided no evidence that those supervisors were deliberately indifferent, the court found, or that they tacitly authorized any excessive force. It also rejected claims against the county, since the plaintiff did not argue that any of the county's policies were themselves unconstitutional or caused her injuries, but rather that the officers violated her rights when they violated the policies in various ways.

     Johnson v. Blaukat, No. 05-3866, 2006 U.S. App. Lexis 16091 (8th Cir.).

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

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Prisoner Discipline

Prisoner claiming that he was improperly retaliated against by being falsely disciplined for having written a letter and filed a prior lawsuit against prison staff members was not required to "establish" either the legal or factual elements of his claim in his complaint, but merely say enough to provide the defendants with adequate notice of his claim. Prisoner's federal civil rights lawsuit was not barred by finding, by prison disciplinary board, that his statements in his prior letter and lawsuit were false.

     A Wisconsin prisoner claimed that after he wrote a letter and filed a lawsuit complaining about alleged abuse by prison staff members, those he accused retaliated by issuing "bogus" conduct reports and arranging for him to suffer discipline.

     The prisoner spent 300 days in segregation, and lost 25 days of recreation privileges. The trial court dismissed the prisoner's lawsuit for failure to state a claim, stating that his complaint was lacking because he failed to set out all of the "elements" of a retaliation claim, including that his original complaints against the prison staff had been truthful, reasoning that if they were not, there is no constitutional right to lie.

     The trial court stated that the plaintiff prisoner had to do more than "allege" the elements of his claim, but rather "establish" or "demonstrate" in his complaint that his original speech was truthful. The trial judge reasoned that he could not do that because the prison disciplinary board had found his accusations to be false, and he was bound by that unless that determination was first set aside, citing Edwards v. Balisok, 520 U.S. 641 (1997) and Heck v. Humphrey, 512 U.S. 477

     A federal appeals court disagreed, finding that the trial court's analysis "went wrong at the first step."

     In complaints in federal court, a plaintiff only pleads "claims" (grievances) rather than the legal theories and factual specifics, the appeals court stated.

     The appeals court held that the "truth" of a prisoner's prior statements is not among the things that must be pled "with particularity" in a complaint, and a complaint cannot, therefore, be dismissed for omission of that allegation. In this case, the plaintiff's grievance and subsequent complaint was enough to put the defendants on notice of what he was suing about, and "no more is required."

     Support of the allegations is established later, in response to motions for summary judgment or at trial, the court noted.

     On the issue of whether the decision of the prison disciplinary board concerning the falsity of the prisoner's prior complaints was binding, the appeals court found that Wisconsin courts do not treat the factual conclusions of a prison disciplinary board (or any other state agency) "as beyond the power of a court to examine." While the prisoner could not prevail in the case without proving that he was right and the board wrong, he did not need to provide "proof" of this when simply filing his complaint.

     Further, the appeals court stated, Heck and Edwards only bar lawsuits by prisoners whose grievances implied the invalidity of ongoing custody and who have the opportunity of challenging that through collateral attack, such as habeas corpus, in either state or federal court. It found that Heck and Edwards do not apply when no such collateral attack on a disciplinary finding is available--either because the plaintiff's custody has expired, or because he was never "in custody" as a result of the contested actions. Disciplinary segregation, the appeals court said, and/or a reduction of the amount of recreation are not a form of "custody," so that Heck and Edwards in this case were "beside the point."

     While the plaintiff prisoner argued that his letter and original lawsuit involved truthful accusations, for which he was punished, the defendants argued, and the prison disciplinary board found, that his accusations were false and malicious. If the prisoner was right, the appeals court found, then the defendants violated his constitutional rights by penalizing protected speech. If, on the other hand, the defendants were right, and the prisoner's initial accusations and lawsuit involved lies, then the immediate lawsuit is frivolous, the appeals court reasoned.

     If the prisoner was lying in the past, then he would know that he has no right to recover now. While the trial court evidently "did not relish" the need to resolve this disagreement, that decision is "essential," according to the appeals court.

     The appeals court warned the plaintiff prisoner, however, that if the prisoner loses the immediate lawsuit, it could only be because he "was lying then and is lying now," rendering the lawsuit frivolous, and subjecting the prisoner to such sanctions as losing the privilege of litigating future lawsuits as a pauper and/or financial sanctions. While finding the dismissal of the lawsuit improper, therefore, it warned him that he should think about "these possibilities before deciding to continue this litigation."

     Simpson v. Nickel, No. 05-4686, 450 F.3d 303 (7th Cir. 2006).

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

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Sexual Assault

Federal appeals court orders a new trial in lawsuit by prisoner claiming that housing unit manager improperly denied his request for protective custody after his cellmate allegedly raped him, resulting in multiple subsequent rapes. Trial judge improperly told the jury, in response to their question, that there was "no evidence presented" about prior complaints about the defendant denying requests for protective custody, rather than instructing them that their question was irrelevant, after which the jury quickly found for the defendant.

     An inmate incarcerated by the Missouri Department of Corrections at the Algoa Correctional Center claims that he was raped on multiple occasions by a cellmate. He claimed that, after the first attack, he sought protective custody from the housing unit manager, but that this request, and at least two subsequent similar requests for protective custody were denied, leading to further rapes.

     The prisoner filed a federal civil rights case alleging that this alleged failure to adequately protect him violated his Eight Amendment and Fourteenth Amendment rights. The jury, during deliberations, asked the trial judge whether there had been "any past complaints" against the defendant unit manager for denying protective custody requests. Over the plaintiff's objection, the trial judge instructed the jury that "no evidence was presented" regarding past complaints against the unit manager for denying protective custody requests. The jury then returned a verdict in favor of the defendant shortly after receiving that answer.

     On appeal, the plaintiff prisoner argued that the trial judge erred when it failed to explain to the jury in its response to the question that whether there were past complaints against the Defendant was irrelevant to reaching its verdict. The judge had specifically told the jury that:

     The appeals court noted that, when answering a jury's question, a trial judge must be careful not to "inject an irrelevant issue into the case." If the jury seems to be discussing an irrelevant issue, then the court "should disabuse the jury of its mistaken belief that an irrelevant matter is important to its verdict. "

     In the immediate case, both parties on appeal evidently agreed that evidence of past complaints about the defendant were "irrelevant," but the court's response to the jury's question, stating that "no evidence was presented" on the issue, implied that evidence of past complaints would have been relevant. The appeals court found a reasonable likelihood, accordingly, that the jury interpreted this answer to mean that the absence of evidence about past complaints made it less probable that the defendant failed to respond to the plaintiff's request for protective custody in this case.

     While the exact statement made by the court may have been "factually accurate," the appeals court reasoned, the "substance" of what the jury was asking about was irrelevant, so that is what they should have been told. Indeed, the appeals court noted, had the plaintiff attempted to introduce evidence of prior "bad acts" by the defendant, he very likely would have been barred from doing so, as the issue in the case was what the defendant did in the immediate case, not what he may or may not have done to someone else.

     Under these circumstances, the appeals court reversed the jury's verdict, and ordered a new trial.

     Conley v. Very, No. 05-2650, 2006 U.S. App. Lexis 15548 (8th Cir.).

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

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Work/Education Programs

An inmate doing work at or for a prison does not qualify as an employee under federal minimum wage laws, and is therefore not entitled to minimum wages for hours worked.

     A Texas prisoner filed a lawsuit claiming that he was entitled to earn the federal minimum wage under the Fair Labor Standards Act (FLSA), 29 U.S.C. §201, for work he did as a "drying machine operator" in the laundry at a prison. The trial court dismissed the lawsuit as frivolous and for failing to state a claim.

     The prisoner appealed, arguing that he meets the test for status as an employee under the FLSA, and that the FLSA fails to specifically exempt prisoners from its coverage.

     A federal appeals court noted that past case law has established that forcing a prisoner to work without pay does not violate the Constitution, and that the failure of a state to specifically sentence a prisoner to "hard labor" does not alter this rule.

     A prior case held that prisoners who were not sentenced to hard labor, who worked outside of a jail for a private firm were employees of the private firm entitled to minimum wages. See Watson v. Graves, 909 F.2d 1549 (5th Cir. 1990), but a subsequent case ruled that inmates working inside a prison for a private enterprise were not FLSA employees of the private company. Alexander v. Sara, Inc., 721 F.2d 149 (5th Cir. 1983).

     The appeals court commented that until now it had not expressly ruled on the question of whether there is any FLSA employment relationship between a prison and its inmates working in and for the prison.

     The U.S. Court of Appeals for the Fifth Circuit joined other federal appeals court in ruling that prisoners doing prison work are not the prison's employees under the FLSA, and therefore are not entitled to federal minimum wages.

     The plaintiff prisoner further argued that the system of employing inmates was "discriminatory," but the court found that he had failed to identify the "victims" of the alleged discrimination or the grounds for the alleged discrimination.

     Loving v. Johnson, No. 05-10679 2006 U.S. App. Lexis 16968 (5th Cir.).

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Noted In Brief

Chemical Agents

     The use of a chemical agent to extract a prisoner from his cell did not violate his rights when it was used only after he repeatedly disobeyed orders to come out by himself. Eccleston v. Oregon, No. 04-36122, 168 Fed. Appx. 760 (9th Cir. 2006).

Defenses: Eleventh Amendment Immunity

     The waiver of sovereign immunity by Pennsylvania under state law for dangerous conditions on governmental property did not apply to a Pennsylvania prisoner's lawsuit against the state in federal court asserting a state law negligence claim for injuries he allegedly suffered when his Achilles tendon was torn by a pipe protruding from his cell floor. The statute containing the waiver itself said that it did not waive the state's Eleventh Amendment immunity, preventing it from being sued for damages in federal court. Prisoner also failed to show that prison officials acted with deliberate indifference to his serious medical needs following his injuries, as required for a federal civil rights claim. Brooks v. Beard, No. 05-3196, 167 Fed. Appx. 923 (3rd Cir. 2006).

Defenses: Qualified Immunity

     In a prisoner's lawsuit claiming that prison officials violated his First Amendment rights by refusing to allow him to organize an atheist study group, federal trial court finds that defendant officials were entitled to qualified immunity from liability for damages since it was not clearly established at the time of the denial, 2002, that atheism was a "religion," and the prisoner did not tell the defendants that he was a member of any non-theistic belief system, such as secular humanism, which had previously been held to be protected by the First Amendment's free exercise of religion clause. Kaufman v. McCaughtry, No. 03-C-027, 422 F. Supp. 2d 1016 (W.D. Wis. 2006).

First Amendment

     First Amendment challenge by a class of prisoners to a federal Bureau of Prisons program statement and institutional policy barring the showing of unedited R-rated movies to inmates rejected. The prohibition was rationally related to legitimate governmental interests in promoting the rehabilitation of prisoners. Prisoners had adequate alternative means to exercise their First Amendment rights, including access to G, PG, and PG-13 rated films, as well as R-rated films that had been edited for television. Jewell v. Gonzales, No. 97-408, 420 F. Supp. 2d 406 (W.D. Pa. 2006).

Medical Care

     Correctional officials did not violate prisoner's Eighth Amendment rights by stopping his treatment for Hepatitis C when they found that he no longer tested positive for the virus. Scheckells v. Goord, No. 04 Civ. 7776, 423 F. Supp. 2d 342 (S.D.N.Y. 2006).

     Prison administrators were not shown to have known of prisoner's requests for medical treatment for back pain prior to his initial doctor's appointment, so they could not be said to have acted with deliberate indifference to a serious medical need. Mayo v. Snyder, No. 05-1775, 166 Fed. Appx. 845 (7th Cir. 2006).

     Prison nurses' alleged failure to use gloves when giving an inmate medications was insufficient to establish a claim for cruel and unusual punishment under the Eighth Amendment. Plaintiff prisoner also failed to show that prison medical personnel acted with deliberate indifference in denying him a wheelchair, given evidence that the inmate "exaggerated" his purported inability to walk, and the absence of specific records identifying a reason for his supposed difficulty doing so. Todd v. Walters, No. 05-1020, 166 Fed. Appx. 590 (3rd Cir. 2006).

     Even if the treatment provided for a prisoner's Hepatitis C and other complaints were arguably inadequate, they were not so seriously inadequate as to be shocking to the conscience so as to constitute deliberate indifference to serious medical needs. Evidence showed that the denial of medication for the Hepatitis C was based on a determination that such treatment would be adversely impacted by the plaintiff's prior drug use. Macleod v. Kern, No. CIV. A.03-11483, 424 F. Supp. 2d 260 (D. Mass. 2006).

     Even if prescription medication prisoner was given for his asthma caused gastrointestinal bleeding, there was insufficient evidence that prison doctors knew that use of the medicine created an unacceptable risk of such injuries but ignored that risk. Holman v. Horn, No. 05-3824, 170 Fed. Appx. 1 (7th Cir. 2006).

     An alleged four-month delay in performing surgery for the repair of a prisoner's broken arm was not deliberate indifference to a serious medical need, even when it allegedly resulted in the need to re-break the arm and free a compressed nerve. A doctor exercised medical judgment in deciding that a cast would promote the proper healing of the arm, and the injury to the nerve was not an "inevitable" result of this decision. Haley v. Feinerman, No. 04-3823, 168 Fed. Appx. 113 (7th Cir. 2006).

Personal Appearance

     State prison's grooming policy did not violate a Rastafarian prisoner's rights to religious freedom under either the First Amendment or the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Sec. 2000cc by punishing him for his religious practice of wearing his hair and beard uncut. The policy furthered compelling governmental interests in inmate identification, inmate health, staff safety, and institutional security, and the proposal that a religious exception to the policy be granted was not workable. Ragland v. Angelone, No. 7:02 CV 00786, 420 F. Supp. 2d 507 (W.D. Va. 2006).

Prison Litigation Reform Act: Exhaustion of Remedies

     Federal trial court properly granted summary judgment to prison officials on the basis of plaintiff prisoner's failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). While the prisoner filed a grievance, he failed to direct it to the proper facility even though he was informed of the policies concerning where grievances should be sent. Additionally, the prisoner provided no justification for why he delayed filing his grievance for a three-year period. Smith v. Collins, No. 05-1535, #05-1535, 167 Fed. Appx. 830 (2nd Cir. 2006).

Prisoner Assault: By Inmate

     Prisoner failed to show that a prison employee knew that his cellmate posed a serious risk of harm to him, and therefore could not impose liability on him for injuries suffered in an attack by the cellmate. Pickett v. Hartung, No. 05-15406, 168 Fed. Appx. 226 (9th Cir. 2006).

     Prison officers did not act with deliberate indifference in having a prisoner with "mental problems" become another inmate's cellmate. The officers knew that he had been taking his medication, and had been screened and cleared for housing in the general population. There was no evidence that the officers knew that the inmate's new cellmate posed a substantial risk of injury to him, so that they could not be held liable for a subsequent physical assault. Jones v. Beard, No. 04-3669, 145 Fed. Appx. 743 (3rd Cir. 2005).

Prisoner Discipline

     In a disciplinary proceeding concerning a prisoner's possession of purportedly religious documents found to be subversive, the notice provided to the prisoner was adequate to give him adequate due process notice despite failing to identify the specific documents which had been confiscated. The number of documents seized were not so many that the inmate would not have known that the hearing officer would examine all of them in determining guilt or innocence of the charges. Appeals court holds, however, that genuine issues concerning whether the failure to disclose the documents and confidential source information to the prisoner was justified barred summary judgment against him on his due process claim, requiring further proceedings. Samuels v. Selsky, No. 04-0097, 166 Fed. Appx. 552 (2nd Cir. 2006).

     Prisoner's claim that facility violated a state statute requiring that a discipline report be written within 48 hours of an incident, even if true, did not show a violation of his constitutional due process right to fundamental fairness in his disciplinary hearing. Sufficient evidence supported his conviction for possession of contraband, even though it was not found with him, when the contraband was marked with florescent dust, and the prisoner was found to have some of the dust on his hands. Dawson v. Bruce, No. 95,032, 134 P.3d 14 (Kan. App. 2006).

Prisoner Restraint

     The decision by a prison nurse to place a prisoner in four-point restraint was not shown to be retaliation for his prior lawsuits against other prison personnel, when there was no evidence that the nurse even knew of those lawsuits, and she was not named as a defendant in a lawsuit until after the incident. Ziemba v. Clark, No. 05-1613, 167 Fed. Appx. 831 (2nd Cir. 2006).

Prisoner Suicide

     The alleged absence of any mental illness in a pre-trial detainee who killed himself in a county jail did not bar a federal civil rights claim for deliberate indifference to serious medical needs, but neither the county nor an officer were deliberately indifferent, as they had no awareness of any major risk that the detainee would commit suicide. Taylor v. Wausau Underwriters Insurance Company, No. 04-C-1203, 423 F. Supp. 2d 882 (E.D. Wis. 2006).

     Dismissal of lawsuit over suicide of pretrial detainee was improper when the decedent's parents claimed that prison employees either knew or reasonably should have known that they should keep him under observation to prevent his suicide but did not do so, and also did not remove from his possession items which he could use to kill himself, such as the shoelace that he used to hang himself. Kulp v. Veruette, No. 04-3139, 167 Fed. Appx. 911 (3rd Cir. 2006).

Procedural: Jurisdiction

     New York federal trial court properly dismissed a lawsuit by an inmate claiming that the broadcast of professional football games in his Georgia prison violated his "civil and constitutional rights." The prisoner failed to show a specific federally protected right which was allegedly violated by these broadcasts, so there was no jurisdiction over his lawsuit on the basis of an issue of federal law. Further, the proper place for him to have filed his lawsuit was in a federal court in Georgia, not New York. Barber v. United States Attorney's Office for the Northern District, No. 05-2038, 166 Fed. Appx. 504 (2nd Cir. 2006).

Public Protection

     Montana Supreme Court overturns summary judgment for defendant county in lawsuit filed by a stabbing victim claiming that the failure of the county jail to require that his attacker begin serving a sentence on other offenses prior to the attack was negligence that caused his injuries. A court order existed requiring the attacker to begin serving his sentence prior to the date of the attack, establishing a special custodial relationship, and the county, under these circumstances, had a duty to protect some third parties from the offender. Further proceedings were ordered on whether the offender's intentional action in stabbing the plaintiff was unforeseeable. Prindel v. Ravalli County, No. 04-640, 133 P.3d 165 (Mont. 2006).


     Jewish prisoner's claim that the complete denial of his request for wine to drink while saying Sabbath prayers violated his right to religious freedom survived a motion for summary judgment by Bureau of Prisons' officials, because there was a genuine issue of fact as to whether the ban was the "least restrictive means" of furthering a compelling governmental interest in preventing intoxication of prisoners, as required by the Religious Freedom Restoration Act, 42 U.S.C. Sec. 2000bb-1(b) and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc. Sample v. Lappin, No. CIV. A.05-0596, 424 F. Supp. 2d 187 (D.D.C. 2006).

     Denial of a prisoner's request for a television set on which to watch church services did not violate his First Amendment rights to exercise his religion. Pepper v. Carroll, No. CIV.A. 05-84, 423 F. Supp. 2d 442 (D. Del. 2006).

     New York city corrections department did not violate the rights of a Catholic inmate by prohibiting him from attending Protestant Bible study classes unless he changed his religious affiliation to Protestant, even though the jail failed to offer Catholic Bible study classes. There was no violation of equal protection, as a Catholic chaplain was available to meet with inmates individually for Bible study. Policy allowing inmates to participate in only one religion, which they could choose, was the least restrictive available means of achieving a compelling interest in limiting the movement of prisoners for the purpose of maintaining order. Spavone v. City of New York, No. 04 Civ. 8136, 420 F. Supp. 2d 236 (S.D.N.Y. 2005).

Sexual Offender Programs & Notification

     Prisoner's claim that officials violated his due process rights by requiring him to agree to take anti-psychotic medications specified by a program coordinator of a sex offender treatment program as a condition of parole was not frivolous, and should not have been dismissed on that basis. The prisoner stated a possible claim for infringement on his liberty interest in avoiding the unwanted administration of anti-psychotic medications. Bundy v. Stommel, No. 05-1099, 168 Fed. Appx. 870 (10th Cir. 2006).

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     Court Documents: U.S. v. Barnes, et al. Grand jury indictment of guards at a federal detention facility in Florida on claims arising out of purported trading of contraband with female inmates for sexual favors. (U.S. District Court for the Northern District of Florida, June 20, 2006).

     Reports: Confronting Confinement, report of the National Commission on Safety and Abuse in America's Prisons. (June 8, 2006). The report addresses dangerous conditions of confinement - violence, poor health care, and inappropriate segregation - that can also endanger corrections officers and the public; lack of political support for labor and management; weak oversight of correctional facilities; and serious flaws in the available data about violence and abuse. Among 30 practical reforms, the Commission recommends: A re-investment in programming for prisoners to prevent violence inside facilities and reduce recidivism after release. Changing federal law to extend Medicaid and Medicare reimbursement to correctional facilities and ending prisoner co-pays for medical care, reforms necessary to protect the public health. Reducing the use of high-security segregation, which can actually cause violence, and ending the release of prisoners directly from these units to the streets, which contributes to recidivism. Increased investment at state and local levels to recruit, train, and retain skilled, capable workers at all levels. Expanding the capacity of the National Institute of Corrections to work with states and localities to create a positive institutional culture in corrections facilities. Creating an independent agency in every state to oversee prisons and jails and changing federal law to narrow the scope of the Prison Litigation Reform Act. Developing standardized reporting nationwide on violence and abuse behind bars so that corrections officials, lawmakers, and the public can have reliable measures of violence and monitor efforts to make facilities safer.

     Reports: Treated Like Trash: Juvenile Detention in New Orleans Before, During, and After Hurricane Katrina, report of the Juvenile Justice Project of Louisiana. (May 2006). A report on conditions in New Orleans Louisiana juvenile detention facilities.


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

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

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Cross References

Featured Cases:

Chemical Agents -- See also, Prisoner Assault: By Officers
Drug Abuse and Screening -- See also, Medical Care (1st case)
First Amendment -- See also, Inmate Property
First Amendment -- See also, Prisoner Discipline
Governmental Liability: Policy/Custom -- See also, Medical Care (1st case)
Mail -- See also, First Amendment
Mail -- See also, Inmate Property
Medical Care -- See also, Disability Discrimination: Prisoners
Prisoner Assault: By Inmate -- See also, Sexual Assault
Prisoner Assault: By Officer -- See also, Medical Care (2nd case)
Religion -- See also, Inmate Property
Supreme Court Actions -- See also, First Amendment
Supreme Court Actions -- See also, Prison Litigation Reform Act: Exhaustion of Remedies

Noted In Brief Cases:

Defenses: Sovereign Immunity -- See also, Defenses: Eleventh Amendment Immunity
First Amendment -- See also, Defenses: Qualified Immunity
First Amendment -- See also, Prisoner Restraint
Medical Care -- See also, Defenses: Eleventh Amendment Immunity
Medical Care -- See also, Sexual Offender Programs & Notification
Medical Care: Mental Health -- See also, Sexual Offender Programs & Notification
Parole -- See also, Sexual Offender Programs & Notification
Prisoner Death/Injury -- See also, Defenses: Eleventh Amendment Immunity
Religion -- See also, Defenses: Qualified Immunity
Religion -- See also, Personal Appearance
Religion -- See also, Prisoner Discipline (1st case)

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