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Access to Courts/Legal Info

     The plaintiff prisoner failed to show that he suffered any "actual injury" from correctional officials' alleged actions denying him the right of access to the courts. He could not show that the alleged actions caused him to miss any court deadlines or resulted in the rejection or loss of a legal claim. Pressley v. Beard, No. 07-4150, 2008 U.S. App. Lexis 4208 (3rd Cir.).

     Despite a prisoner's mental impairment, there was sufficient evidence that he was able to represent himself, since the papers he had submitted to the court showed a clear understanding of what claims he wanted to present. The prisoner was therefore, not entitled to an appointed lawyer to pursue his claims, but was entitled to additional time to submit a memorandum in support of his claims, while acting as his own lawyer. Lucien v. Spencer, C.A. No. 07-11338, 2008 U.S. Dist. Lexis 11560 (D. Mass.).

     Federal appeals court reverses dismissal of federal prisoner's lawsuit against Bureau of Prisons for depriving him of meaningful access to the courts. The alleged failure of the defendants to provide him with legal research materials for Louisiana, North Carolina, California, and the District of Columbia was claimed to have prevented him from pursuing constitutional claims concerning prior state criminal convictions which were the basis of an enhancement of his federal sentence. The prisoner adequately alleged that particular challenges to these prior convictions were hindered by the defendants' actions preventing him from knowing what the current law was in these jurisdictions. Anderson v. Bureau of Prisons, No. 05-30965, 2008 U.S. App. Lexis 3115 (5th Cir.).

     Texas detainee failed to show that limits on his access to the law library or to a typewriter resulted in any actual injury in pending court actions. The plaintiff, an alien, also asserted claims that an attorney for the U.S. Immigration and Customs Enforcement "and her ghost," the "reincarnated Jezebel Princess of Evil" appeared before him while he slept at night or showered, causing him mental distress. The court ruled that these claims were "obviously frivolous." The court also rejected claims that the prisoner had suffered unlawful retaliation for pursuing his claims against the attorney and her "ghost," since a retaliation claim cannot be based on underlying claims that are frivolous. Maringo v. McGuirk, No. 07-20163, 2008 U.S. App. Lexis 4720 (5th Cir.).

Damages: Punitive

     Prisoner was not entitled to a jury instruction on punitive damages in his lawsuit contending that correctional officials' serving of a pork substitute showed an unlawful preference for Muslim and Jewish prisoners since they rejected his own Hindu religious request for a modified diet. Even if his allegations were true, they did not allege conduct amounting to evil intent or reckless or callous indifference to his constitutional rights, and he was therefore not entitled to punitive damages. The jury awarded him $629 in damages against one defendant and $1 against a second, on equal protection claims. Patel v. Wooten, No. 07-1030, 2008 U.S. App. Lexis 3216 (10th Cir.).

Defenses: Statute of Limitations

     A prisoner knew of his alleged injuries from inadequate medical treatment when it occurred in 1994 and 1995, and even filed a state court medical malpractice lawsuit in 1996 based on the same conduct that was the basis for his federal civil rights lawsuit.  The current lawsuit, filed in 2007, was therefore time barred under a two-year Pennsylvania statute of limitations, and there was no evidence to support the "tolling" (extension) of the statute of limitations. Fullman v. Pa. Dept. of Corrections, No. 07-3967, 2008 U.S. App. Lexis 3401 (3rd Cir.).

DNA

     Ohio statute requiring a prisoner convicted of felonious assault to submit a DNA specimen for entry into state and national DNA index systems did not violate the prisoner's Fourth Amendment privacy right, and did not violate his Fifth Amendment privilege against self-incrimination, since DNA samples are not "testimonial" evidence, but rather "physical" evidence. Wilson v. Collins, No. 07-3428, 2008 U.S. App. Lexis 3730 (6th Cir.).

First Amendment

     Prison officials were entitled to qualified immunity in seizing, from a prisoner's cell, his written manuscripts, including novels, short stories, and artwork. The prisoner himself agreed that the officials had properly seized one of his stories as forbidden material under prison regulations because of its sexually explicit nature. While there were material issues of fact as to whether the defendants were justified in seizing the remaining materials, or whether that seizure violated the prisoner's First Amendment rights, since some of it was not sexually explicit, this was not clear to the defendants at the time of the seizure. Their actions, therefore, could constitute a reasonable mistake, which is inevitable in the context of limited resources and serious security concerns. The prisoner also could not have the appeals court address his complaint that the defendants had not complied with a trial court injunction requiring the return of his writings, when he failed to raise that issue with the trial court. Lee v. Carlson, No. 07-4093, 2008 U.S. App. Lexis 1572 (10th Cir.).

Medical Care

     Prisoner's claims against the Indiana Department of Corrections and its facilities for alleged inadequate medical care for failing to treat a painful injury were barred by the state's Eleventh Amendment immunity. The plaintiff failed to show that the Department's Commissioner had any personal involvement in health care decisions concerning him, requiring the dismissal of claims against the Commissioner. The court also dismissed claims against a private medical services provider whose employees provided medical care at the facility where the plaintiff was incarcerated, since he did not claim that its officials made any decisions concerning his alleged inadequate care or that the inadequate care resulted from its policies. The prisoner could not pursue his claims against the provider's doctors until he had identified them. The court also rejected the plaintiff's equal protection claim since he did not allege that he suffered treatment different from that provided to any other similarly situated individuals. Voss v. Ind. Depart. of Corrections, No. 3:07-CV-449, 2008 U.S. Dist. Lexis 8771 (N.D. IN.).

     Prisoner's claim that correctional employees improperly delayed transferring him for surgery after his gallstones condition was diagnosed was sufficient for him to pursue a lawsuit against the District of Columbia and its employees. Claims against a private prison contractor and its employees, however, were dismissed on the basis of the dismissal of a prior lawsuit against them. Brown v. D.C., No. 05-5320, 2008 U.S. App. Lexis 2254 (D.C. Cir.).

     While a prisoner claimed that his appendicitis had been misdiagnosed as a urinary tract infection, he did not allege that medical personnel intentionally provided him with incorrect and inadequate treatment. His claims, therefore, amounted to negligence, which was insufficient for a federal civil rights claim. Garrett v. University of Texas Medical Branch, No. 07-40421, 2008 U.S. App. Lexis 741 (5th Cir.).

Medical Care: Dental

     Prisoner's claim that correctional employees delayed providing him with the dentures he needed for eleven months, resulting in him suffering pain and difficulty in eating and chewing food was sufficient to present a genuine issue of material fact as to whether they were deliberately indifferent to a serious medical need. All of his teeth had been pulled except six bottom teeth, and he claims that the remaining teeth cut into his top gums, interfering with his sleep and with eating. Young v. Kazmerski, No. 07-2224, 2008 U.S. App. Lexis 4127 (3rd Cir.).

     Prisoner's claim against sheriff, chief deputy, and two jail employees, based on an alleged failure to take him to a dentist when his tooth began to hurt were dismissed when the prisoner did not personally ask them for dental care, and the lawsuit was against them only in their official capacities. The plaintiff failed to show that the alleged denial of dental care was caused by an unconstitutional policy. The plaintiff also failed to show that a jail nurse acted in violation of his constitutional rights when he agreed that she had provided some care and merely was not "pleased" with the care provided. Tucker v. Shepard, No. Civil  3:07CV465, 2008 U.S. Dist. Lexis 9307 (S.D. Miss.).

Prison and Jail Conditions: Sleeping Accommodations

     Prisoner's complaint that he suffered an arm fracture from falling from a bunk bed in his cell did not show that he had been deprived of the "minimal civilized measure of life's necessities" in violation of the Eighth Amendment. The defendants, in failing to provide a ladder with the bunk bed had "weighed the benefits" of such ladders against a possible risk that the ladders could be used as weapons or facilitate prisoner suicides. Connolly v. County of Suffolk, Civil Action No. 04-10835, 2008 U.S. Dist. Lexis 7572 (D. Mass.).

Prisoner Assault: By Inmates

     Federal trial court finds no evidence to support prisoner's claim that jail employees paid other prisoners or gave them cigarettes to attack him. Additionally, there was no evidence that the defendants knew that the plaintiff was at risk of assault but failed to protect him. Carr v. Head, No. 1:07CV180-03, 2008 U.S. Dist. Lexis 7809 (W.D.N.C.).

     Trial court improperly dismissed inmate's lawsuit claiming that he was knowingly exposed to the risk of assault by other inmates when a guard allegedly told his cell mate that he was a child molester. These facts, if true, were sufficient to state an Eighth Amendment claim. Brown v. Narvais, No. 07-6120, 2008 U.S. App. Lexis 3769 (10th Cir.).

     Prisoner's claim that correctional officials ignored three requests that he be moved because of concerns about his safety, and that he was attacked by two other inmates and injured two weeks after his third request to be moved stated a claim for violation of his rights. Claims against the sheriff, however, were dismissed since the plaintiff did not claim that he had informed the sheriff himself of his safety concerns. The sheriff could not be held vicariously liable merely because he was the employer of the other defendants. Brewer v. McCoy, No. 07-1356, 2008 U.S. Dist. Lexis 7379 (C.D. Ill.).

     Prisoner attacked by another inmate failed to present evidence creating a genuine issue of material fact as to whether the defendant had information from which he should have foreseen the assault but failed to take action to prevent it. Thompson v. Sosa, No. 06-55871, 2008 U.S. App. Lexis 2141 (9th Cir.).

Prisoner Discipline

     Prison rule concerning possession of contraband was clear enough to provide prisoner with notice that his possession of twenty-nine identification card size photographs of himself violated the rule. Disciplinary determination against him was therefore upheld. Garcia v. Selsky, No. 502714, 2008 N.Y. App. Div. Lexis 1431 (A.D. 3rd Dept.).

     In a case where the decision of a prison disciplinary officer was reversed and the prisoner was released from segregation early, with his earned and good time credit restored, and his privileges returned within 30 days, the court rejects the prisoner's due process claims. Burse v. Bennett, Civil Action No. 4:06CV100, 2008 U.S. Dist. Lexis 9309 (S.D. Miss.).

     Because an award of damages for a prisoner on his due process claim concerning his disciplinary conviction would have implied the invalidity of that conviction, and that conviction had not yet been set aside, he could not pursue his claim for damages. Additionally, claims against officials of the Oklahoma Department of Corrections in their official capacity were barred by the Eleventh Amendment. Ali v. Dinwiddie, No. 07-CV-059, 2008 U.S. Dist. Lexis 8151 (N.D. Ok.).

Prisoner Suicide

     No evidence was presented from which a jury could reasonably find that jail officials acted with deliberate indifference to the risk that a detainee would commit suicide. While jail personnel knew that the detainee had "emotional issues," they acted reasonably in placing him in administrative segregation in order to better monitor him, in arranging for him to meet with a counselor with training in suicide risk assessment, and in relying on the counselor's determination that, while he may have been having "passive suicidal thoughts," it was not necessary to place him on suicide watch. Kulp v. Veruete, No. 06-4790, 2008 U.S. App. Lexis 4205 (3rd Cir.).

Procedural: Discovery

     Plaintiff prisoner was entitled to production of pictures of six correctional officers who were allegedly present when he claimed officers assaulted him, for the purpose of identifying his assailants in a federal civil rights lawsuit. Murphy v. West, No. 04-CV-6615, 2008 U.S. Dist. Lexis 8435 (W.D.N.Y.).

Religion

     Federal appeals court rejects Muslim prisoner's claims that his right to freedom of religion was impaired by the confiscation of his hardbound religious book and prayer rug. The confiscation of these materials was justified on the basis of legitimate concerns that the book could be disassembled to create a weapon, and that the rug could be used for the hiding of weapons or contraband. Pressley v. Beard, No. 07-4150, 2008 U.S. App. Lexis 4208 (3rd Cir.).

     When a prison official stated that she knew that prayer oil was recommended for use by Muslims in practicing their religion, this was sufficient for a Muslim prisoner to continue to pursue his claims under the Religious Land Use and Incarcerated Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc-1, but insufficient for his First and Fourteenth Amendment claims. The prisoner was not entitled to summary judgment on his RLUIPA claim, however, because he did not assert that the denial of access to the prayer oil caused a "substantial burden" on his practice of his religion. Claims against a second official were dismissed. Shidler v. Moore, No. 3:05-CV-804, 2008 U.S. Dist. Lexis 8872 (N.D. Ind.).

     In a lawsuit by a Jewish prisoner complaining that he was denied access to a succah (a booth in which Jews eat and carry out other activities during the celebration of a particular religious holiday) and a tape recorder he claimed he needed to practice his religion, a federal district court rejects the defendants' claims that the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Secs. 2000cc to 2000cc-5 was unconstitutional. The court found that the RLUIPA was a legitimate use of the power of Congress under the Spending Clause, U.S. Const. art. I, Sec. 8, cl. 1, and that the State of South Dakota, in accepting federal funds, waived any claim that it was immune from lawsuits for money damages, pursuant to the Equalization Act, 42 U.S.C. Sec. 2000d-7(a)(1). Under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, however, the prisoner was only entitled to nominal damages on the denial of the requests to use a succah and a tape recorder, and failed to show that state officials violated the RLUIPA in denying other requests he made to use incense, oils, herbs, and certain other items to purportedly practice his religion. Sisney v. Reisch, No. Civ. 03-4260, 2008 U.S. Dist. Lexis 9832 (D.S.D.).

     Prisoner presented insufficient evidence to show that he was placed in administrative custody or kept there on the basis of or in retaliation for his religious beliefs. The record showed that the actual reason for his administrative custody was his "potential involvement" in an assault on another inmate, and that he was subsequently placed in disciplinary custody for breaking institutional rules, followed by a return to administrative custody based on claims that he was a threat to others and ordered assaults on other inmates. The prisoner also failed to argue that the conditions of his confinement imposed a substantial burden on his exercise of his religion. Brown v. Dept. of Corrections, Pa., No. 07-4194, 2008 U.S. App. Lexis 3455 (3rd Cir.).

     The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc et seq. became "clearly established law" when it was signed into law, so that prison officials were required to follow the law, and were not entitled to qualified immunity for allegedly confiscating several religious publications received by the plaintiff prisoner prior to when the U.S. Supreme Court issued a decision in 2005 definitively declaring that the RLUIPA was constitutional. The confiscations took place in May and June of 2003, and in November of 2003, a panel of the U.S. Court of Appeals ruled that the RLUIPA was unconstitutional, a ruling later rejected by the Supreme Court. The court noted that the Sixth Circuit decision occurred after the alleged actions, and therefore could not be used by the prison officials to obtain qualified immunity at a time when the statute was "presumptively constitutional." Figel v. Overton, No. 06-2199, 2008 U.S. App. Lexis 3311 (6th Cir.).

     Even though a rehabilitation program called the Alternatives to Violence Program was "rooted in" Quaker philosophy, it was a secular rather than religious program, so that the recommendation, by a prison, that a prisoner participate in the program did not violate the Establishment of Religion clause of the First Amendment. Bader v. Wren, Civil No. 06-CV-137, 2008 U.S. Dist. Lexis 6952 (D.N.H.).

     County sheriff and chief jailer were not entitled to summary judgment on prisoner's claim that they violated his religious freedom rights by refusing to let him bring his Bible to a jail's day room, since there were disputed issues of fact as to what they had done, and no justification was provided for the alleged refusal. Grissom v. Cole, No. 3:06-CV-00037, 2008 U.S. Dist. Lexis 7169 (E.D. Ark.).

Segregation: Administrative

****Editor's Case Alert****

     Prisoner's placement in and retention in administrative custody for eleven years did not violate his constitutional rights. His status was reviewed every ninety days, and the committee reviewing that status repeatedly recommended that he remain in administrative custody status for security and safety reasons, based on his history of serious misconduct, which included participation in a prison riot and multiple assaults. The prisoner failed to show that his continued administrative custody interfered with his First Amendment rights, since he failed to identify a non-frivolous claim that his status prevented him from presenting. He also claimed to show that the conditions of his confinement violated his rights. Gans v. Rozum, No. 07-3750, 2008 U.S. App. Lexis 4744 (3rd Cir.).

Sex Offender Programs and Notification

     Requirement that Texas prisoner register as a sex offender did not violate his double jeopardy, ex post facto (no retroactive enhancement of punishment), due process, or Eighth Amendment rights. Additionally, since he was currently incarcerated for failing to register, he could not pursue a federal civil rights lawsuit challenging the registration requirement until the incarceration had been reversed or declared invalid, as an award in the lawsuit would imply the invalidity of his current conviction. Hall v. Attorney General of Texas, No. 07-40157, 2008 U.S. App. Lexis 3595 (5th Cir.).

Sexual Assault

****Editor's Case Alert****

     Evidence was present from which a jury could find that a sheriff was aware of conditions in the county jail which were likely to result in the sexual assault of the plaintiff, a female detainee. The evidence included facts about two prior alleged sexual assaults on female prisoners by male correctional officers. These prior assaults were held, in the prior case of Gonzales v. Martinez, #31348, 403 F.3d 1179 (10th Cir. 2005) to be the product of "unconstitutional jail conditions maintained through the deliberate indifference" of Sheriff Salazar, the defendant in the immediate case. The plaintiff in the immediate case was allegedly sexually assaulted in the jail twice in December of 2001, three years after the prior two assaults. Summary judgment for the defendant sheriff was therefore reversed. Tafoya v. Salazar, No. 06-1191 2008 U.S. App. Lexis 3740 (10th Cir.).

Telephone Access

     In a pending lawsuit against prison officials accusing them of "discrimination," "deliberate indifference," and "negligence," the plaintiff prisoner asked for a court order requiring that she be granted four free telephone calls a month, instead of the two free calls from the prison she was already provided. She contended that she would use two of the four calls to call her attorney. The motion was denied, as the court found that the prisoner failed to show that other prisoners were allowed to make such calls to their lawyers that were not included in their monthly allotment of free calls. Bell v. Wallace, Civil Action No. 07-cv-00496, 2008 U.S. Dist. Lexis 9613 (D. Colo.).

Therapeutic Programs

     The federal Bureau of Prisons failed to provide a valid rationale for categorically excluding prisoners convicted of offenses involving the carrying or possession of firearms or explosives from eligibility for early release under 18 U.S.C. Sec. 3621(e) if they successfully completed a residential substance abuse program. Such a rationale, the court found, was required under 5 U.S.C. Sec. 706. The court found that the BOP's promulgation of its final rule on the matter was "arbitrary and capricious" in the absence of a stated rationale for categorical exclusion of a "class of nonviolent offenders" from being eligible for early release. The appeals court ordered the trial courts, in the consolidated cases, involving petitions for writs of habeas corpus filed by prisoners excluded from eligibility, to "grant the habeas corpus petitions." Arrington v. Daniels, No. 06-35855, 2008 U.S. App. Lexis 3510 (9th Cir.).

Work/Education/Recreation Programs

     Sheriff and jailer were entitled to summary judgment in detainee's lawsuit claiming that he had not received any recreation time for weeks at a time. The sheriff maintained that such recreation was provided to all prisoners twice a week, but that the plaintiff did not always use the time provided. The prisoner also failed to present evidence showing that his weight and muscles dropped drastically during his four months at the jail. Hafner v. Limoges, No. Civ. 06-4039, 2008 U.S. Dist. Lexis 9346 (D.S.D.).

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     Annual Report: Federal Prison Industries, Inc. Annual Financial Statement, Fiscal Year 2007, Audit Report 08-10, March 2008 (Commentary and Summary Only). Office of the Inspector General, U.S. Department of Justice.

     Annual Report: Federal Bureau of Prisons Annual Financial Statement, Fiscal Year 2007, Audit Report 08-09, March 2008 (Commentary and Summary Only). Office of the Inspector General, U.S. Department of Justice.

     Medical Care: The Federal Bureau of Prison's Efforts to Manage Inmate Health Care, Audit Report 08-08, February 28, 2008. Office of the Inspector General, U.S. Department of Justice.

     Report:  One in 100: Behind Bars in America, 2008, by The Pew Center on the States, Pew Charitable Trusts. March 2008. A report which covers the growth of prison population and facilities in the U.S., the growth of prison costs, and the length of prison stays, and related issued.

Reference:

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

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