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Lethal and Less Lethal Force
Oct.11-13, 2010 – Las Vegas

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Dec. 13-15, 2010 – Las Vegas

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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: 2010 JB April (web edit.)
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This publication highlighted 355 cases or items in 2009.
This issue contains 25 cases or items in 17 topics.


Monthly Law Journal Article
(PDF Format)
Broader Acceptance of Routine Strip Searches
to Combat Contraband
2010 (4) AELE Mo. L. J. 301



AELE Seminars:

Lethal and Less Lethal Force
Oct.11-13, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

Click here for further information about all AELE Seminars.


     Some of the case digests do not have a link to the full opinion.

False Imprisonment

     Former detainees in a jail claimed that they were wrongfully kept in custody for periods of time ranging from twenty-six to twenty-nine hours after a court had ordered their releases. A federal appeals court held that the Los Angeles Sheriff's Department was entitled to summary judgment in their federal civil rights lawsuit, as the department's "many affirmative efforts" to attempt to remedy the problem indicated that there was no policy amounting to deliberate indifference to the detainees' rights. Mortimer v. Baca, #07-55393 2010 U.S. App. Lexis 2500 (9th Cir.).


     A pretrial detainee's claim that jail officials violated his right of access to the courts by opening his legal mail 15 times outside of his presence was non-meritorious. Most of his letters were correspondence with a court, which were not subject to secrecy, and as to the alleged opening of his correspondence with attorneys, he did not claim that it had resulted in any detriment to his legal claims. The opening of his legal mail outside of his presence also did not show any violation of his rights of free speech and free association. In light of the fact that only one letter was actually marked as mail from an attorney, opening it, standing alone, did not show a continuing practice of opening privileged mail. Harrison v. County of Cook, #09-1747, 2010 U.S. App. Lexis 2703 (Unpub. 7th Cir.).

Medical Care

    A female prisoner in California resided in a community-based correctional facility, along with her infant daughter. She filed a lawsuit against the state, the private company operating the facility, and various employees of the other defendants for physical injuries her daughter allegedly suffered and her own emotional distress from the defendants' alleged failure to provide medical treatment for the child's serious respiratory infection. The state and state employees were entitled to immunity from liability for negligence and negligent and intentional infliction of emotional distress concerning the prisoner under a state statute. Her daughter, however, was not a prisoner, so no such immunity was available on claims against the state and state employees concerning her injuries. The private company and its employees were not entitled to governmental immunity. Lawson v. Sup. Ct., #D055396, 2010 Cal. App. Lexis 14 (Cal. App.).

     A prisoner who hurt his back while incarcerated claimed that an 18-month delay in ordering surgery constituted deliberate indifference to his serious medical needs. A federal appeals court disagreed, noting that the defendants actively pursued an "involved" course of treatment that included pain medication, various tests, and, ultimately, the provided surgery. Pursuing less invasive treatments at first, as well as trying to transfer the prisoner to a better equipped facility were not indications of deliberate indifference. Moore v. Guzman, #08-16420, 2010 U.S. App. Lexis 1370 (Unpub. 11th Cir.).

     While taking a shower at a county detention center approximately four and a half hours after his arrest, a 16-year-old male collapsed into unconsciousness. He was immediately given medical attention, and taken to a hospital, but died ten days later from the impact of acute cocaine intoxication. Rejecting claims of deliberate indifference, the court found no evidence that either the arresting or processing officers had any reason to be aware of the decedent's need for medical attention prior to his collapse. Brown v. Middleton, #08-1937, 2010 U.S. App. Lexis 931 (Unpub. 4th Cir.).

     There was insufficient evidence on which to base a claim that a doctor had provided a prisoner with inadequate medical care. The doctor did see and treat the prisoner after he suffered a fall and complained about back pain. The failure, at that time, to order an MRI test did not rise to the level of deliberate indifference. While the prisoner claimed that the doctor improperly cancelled his physical therapy appointments after only one visit, records showed that it was the prisoner's own refusal to attend three other appointments that led to the therapy sessions being cancelled. As for an alleged 10-month delay in undergoing a liver biopsy, a medical assistant, who believed that the prisoner did not meet established criteria for the procedure, did not act with deliberate indifference. This action was also based, in part, by conflicting opinions from consulting physicians as to what the proper course of treatment was. The court also rejected a retaliation claim, as there was no connection shown between the prisoner filing a grievance and the delay in ordering the biopsy. Victor v. Milicevic, #08-1772, 2010 U.S. App. Lexis 990 (Unpub. 2nd Cir.).

     Further proceedings were required to determine whether a nurse acted with deliberate indifference in allegedly refusing to see the plaintiff prisoner, despite being aware of her symptoms that were consistent with serious heart problems. The trial court also erred in refusing to consider the plaintiff's offered expert witness testimony regarding the relationship between her vomiting and her heart condition. Gayton v. McCoy, #08-2187, 593 F.3d 610(7th Cir. 2010).

Prison and Jail Conditions: Asbestos

     A federal prisoner sought damages for injuries allegedly stemming from exposure to asbestos while working as an electrician for the prison's custodial maintenance services during his incarceration at Leavenworth. He claimed that proper protective measures were not taken. Claims against individual defendants under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., (FTCA), were properly dismissed, as only the U.S. government can be a defendant under that statute. The defendant government argued, however, that the plaintiff's exclusive remedy for work related injuries were under the Inmate Accident Compensation Act. 18 U.S.C. Sec. 4126. Under that statute, federal prisoners who suffer a work-related injury and who still suffer a residual physical impairment as a result, can submit a claim for compensation within 45 days of his release date. If he has fully recovered at that time, however, he can make no such claim. The statute also allows for claims for wages actually lost by the prisoner while prevented from doing his work assignment due to his injury. Because of this statute, the appeals court concluded, FTCA claims against the federal government were also properly dismissed. The fact that the inmate had a lengthy sentence, and might die before he is within 45 days of his release date did not alter the result. The Inmate Accident Compensation Act, however, does not preclude the prisoner from bringing individual capacity federal civil rights claims against federal prison employees for alleged deliberate indifference to a serious risk of harm from exposure to asbestos or other work-relat6ed injuries, so those claims were reinstated. Smith v. U.S., #07-3242, 561 F.3d 1090 (10th Cir. 2009).

Prison Litigation Reform Act: Attorneys' Fees

     A Nebraska prisoner attempted to send drawings of a marijuana leaf and a bare-breasted woman to his mother and to a communist group, the "Maoist Internationalist Movement." When prison officials prevented him from doing so, he sued, claiming a violation of his First Amendment rights. The trial court directed a verdict in the prisoner's favor, awarded him nominal damages of $1, and ordered two defendants to pay approximately $25,000 in attorneys' fees. The appeals court rejected the defendants' defenses of failure to exhaust available administrative remedies and mootness as not properly preserved for appeal.  It also upheld a determination that the prisoner, since he was awarded nominal damages, was a prevailing plaintiff, entitled to an award of attorneys' fees. But the appeals court also held that 42 U.S.C. Sec. 1997e(d)(2) of the Prison Litigation Reform Act limited the award of attorneys fees to 150% of the damages awarded, or $1.50, since no injunctive or declaratory relief was awarded. Keup v. Hopkins, #09-1079, 2010 U.S. App. Lexis 4538 (8th Cir.).

Prisoner Assault: By Inmates

     Reinstating a prisoner's claim that correctional officers failed to protect him against assault by another inmate, a federal appeals court noted that the prisoner sufficiently alleged that the first officer observed the fight and failed to intervene, and that the second officer was aware that the other inmate had a grudge against him but still sent him into the housing unit to pick up supplies. He also claimed that a third officer was present in the unit when the attack occurred, and it could be reasonably inferred that his failure to respond showed deliberate indifference. Brown v. N.C. Dept. of Corrections, #08-8501, 2010 U.S. App. Lexis 525 (Unpub. 4th Cir.).

Prisoner Assault: By Officers

     The bulk of the evidence presented did not support a prisoner's claim that a corrections officer used excessive force against him. Affidavits from a fellow prisoner stating that he saw the officer use force against the plaintiff were "conclusory." Even if these affidavits had been admitted into evidence, they would not have established that the force used was excessive, and the officer himself admitted to having used force against the plaintiff. The refusal to grant the prisoner's request for an appointed lawyer was not improper, when the record showed that the prisoner had competently and adequately represented himself, and that the issues in the case were not complex. Huynh v. Baze, #07-11296, 2009 U.S. App. Lexis 6034 (5th Cir.).

****Editor's Case Alert****  

     The U.S. Supreme Court held that a federal appeals court incorrectly dismissed a prisoner's complaint that a correctional officer used excessive force against him based on a determination that his allegedly resulting injuries were "de minimus" (minimal). Such claims of the use of excessive force against prisoners, under the principles set forth in Hudson v. McMillian, #90-6531, 503 U.S. 1 (1992), should be decided based on the nature of the force used rather than the extent of the injuries. In this case, the prisoner asserted that the officer, acting without provocation, responded to his request for a grievance form by snatching him off the ground, slamming him into a concrete floor, and then proceeding to punch, kick, knee, and choke him, until another officer intervened. These actions allegedly resulted in a bruised heel, lower back pain, increased blood pressure, migraine headaches, dizziness, and psychological trauma. The legal standard for whether the force employed was excessive, the Court noted, was not the extent of the injuries, but whether the force was "applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Wilkins v. Gaddy, #08-10914, 2010 U.S. Lexis 1036.

Prisoner Death/Injury

     A prisoner sought damages against the State of New York for injuries he allegedly suffered while working at a prison laundry. He claimed that a machine was malfunctioning and that maintenance people showed him and other inmates working there how to start the machine from the inside of its top lid, pushing a toggle switch or maneuvering wires inside the top of the machine. When he took laundry out of the machine, he was allegedly electrocuted. The court ruled that there was evidence that the State had known that the machine had not been working properly for months before the incident, but had done nothing to remedy the problem. The State's negligence was a proximate cause of the plaintiff's injuries, but the prisoner did have some responsibility for his injuries. He was placed in the "untenable position" of having to obey direct orders to remove the laundry, and face the possibility of being injured. The inmate was 15% liable, and the State was 85% liable. A trial will determine the amount of damages to be awarded. Giles v. New York, #110952, 2009 N.Y. Misc. Lexis 3600 (Ct. of Claims).

Prisoner Discipline

     A prisoner was disciplined for possession and distribution of contraband, specifically a booklet entitled "The Politics of Parole." which appeared to have been published by an officially sanctioned prisoner's group that he belonged to, the "Long Termers Committee," although it may not have been properly approved by the group. The booklet, which the prisoner was the principal author of, criticized parole policies and practices, and stated that the Parole Board was prone to corruption and political influence. A federal appeals court found that the rules concerning contraband and smuggling, under which the prisoner was sanctioned, were unconstitutionally vague. The rule concerning contraband was addressed to possession of an unauthorized item, the court noted, and did not address organizational activity, or distribution of materials within the facility. The rule about smuggling concerned sending materials into or out of the facility. There was no indication that materials such as the pamphlet, which arguably violated the inmate organization's internal bylaws (because not officially approved), were contraband. While the prisoner might have been able to be sanctioned under other rules for violating the bylaws, the contraband rule did not clearly cover the pamphlet. Further, the pamphlet, if simply created and possessed by the prisoner himself, without it claiming to be an official publication of the committee (which requires approval of a staff advisor) would not have violated any prison rules. The rules against contraband and smuggling, the court further reasoned, also gave "almost complete enforcement discretion" to prison officials. The rules cited failed to give the prisoner notice that his actions were forbidden, and it was clearly established that he had a right not to be punished under one set of rules that did not apply, even if the same conduct might arguably violate other rules, so the defendants were not entitled to qualified immunity. Farid v. Ellen, #07-4057, 593 F.3d 233 (2nd Cir. 2010).

Prisoner Suicide

     Officers transporting a woman to a jail for civil protective custody witnessed her attempting to choke herself by wrapping a seatbelt around her neck, screaming that they should kill her or she would take her own life. They failed to either take her to a hospital or report the incident to jail personnel. She was released and then detained again. During the second detention, which was less than 48 hours after the suicide threat, she hung herself in her cell. A reasonable jury could find that the officers acted with deliberate indifference to the decedent's serious medical needs so that they were not entitled to qualified immunity. The city could also potentially be liable for failing to adequately train the officers on suicide prevention and reporting, but claims relating to alleged failure to discipline the individual officers were properly rejected. Conn v. City of Reno, #07-15572, 2010 U.S. App. Lexis 729 (9th Cir.).

     A mental health patient at a state hospital was on leave from the hospital to attend a family funeral, and was arrested for theft and battery after getting separated from his mother. During booking at the jail, it was noticed that he had laceration scars on his neck and wrist, and he admitted having attempted suicide during the previous month. Jail personnel arranged for him to continue receiving medication he was taking to inhibit suicidal thoughts. He was placed on suicide watch for a time, but taken off it after he allegedly denied having suicidal thoughts. He was again placed on suicide watch after refusing his medication, and after a blade was found missing from his razor. When he was later again taken off suicide watch, he used a bed sheet to hang himself from the bars on his cell window. Summary judgment was upheld for defendant jail officials in a lawsuit over his death, as the evidence presented was insufficient to meet the "high hurdle" of deliberate indifference to the risk of suicide required for liability. A settlement of $75,000 was reached on official capacity claims against the sheriff. Minix v. Canareccii, #09-2001, 2010 U.S. App. Lexis 4025 (7th Cir.).

Public Protection

     A county was accused of violating the civil rights of a man killed by a mentally ill man released from custody after a 72-hour confinement. The county allegedly failed to provide the detainee with psychiatric medications during that period. The plaintiffs claimed that such medication would have diminished the detainee's assaultive behavior, and that denying him the medication amounted to having "weaponized" him and unleashing him on the public, resulting in the decedent's death. A federal appeals court found that the killing was simply "too remote" a consequence of the county's actions to serve as a basis for liability. There were no facts indicating that the county was aware of the mentally ill man's access to a gun or any propensity toward homicide. While his arrest was for home invasion and assaultive behavior, he had not previously shot anyone or carried a weapon. The murder was therefore unpredictable instead of legally foreseeable. Moore v. County of Milwaukee, #08-3621, 2009 U.S. App. Lexis 13917 (7th Cir.).


     A Muslim prisoner sued over a denial of the right to attend group religious services while he was on cell restriction. An appeals court found that his request for an injunction was moot, since state officials had amended the policy at issue to allow inmates on cell restriction to attend such services. The court also upheld the dismissal of claims for individual capacity damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1(a), holding that such claims were not allowable under the statute. Any claims for official capacity damages under the statute, whether compensatory or punitive, were barred by sovereign immunity. The plaintiff prisoner pointed to no clearly established case law that rendered the restriction unreasonable, so the individual defendants were entitled to qualified immunity on federal civil rights claims under 42 U.S.C. Sec. 1983. Jones v. Alfred, #09-40256, 2009 U.S. App. Lexis 26040 (Unpub. 5th Cir.).

     A prisoner failed to show that his right to a religiously required kosher food diet had been denied, when there was "undisputed evidence" that rabbis advising facility officials had repeatedly concluded that a kosher food preparation area there was satisfactory. Boles v. Dansdill, #09-1145, 2010 U.S. App. Lexis 724 (Unpub. 3rd Cir.).

     A formerly civilly committed patient claimed that a facility's prohibition on encoded writing violated his right to religious freedom as his religion required him to keep his thoughts separate from "sinners." He objected to the confiscation, after a search of his cell, of personal journals written in code to prevent others from reading them. He claimed that the prohibition violated both his First Amendment rights and his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1(a). Upholding summary judgment for the defendants, a federal appeals court found that the plaintiff failed to show a substantial burden on his religious practice, since it was mere speculation that others confined to the facility might obtain and read his journals if they were not in code. Desimone v. Bartow, #09-2541, 2009 U.S. App. Lexis 26687 (Unpub. 7th Cir.).


     A jury returned a verdict in favor of prison officials on an inmate's claim that they removed him from his prison law library job in retaliation for his protected First Amendment activities of filing grievances and civil rights lawsuits and helping other prisoners do so. On appeal, this result was upheld. The trial court properly denied a motion to bar evidence that the prisoner was removed from his prison job because officials suspected him of stealing copy paper. This evidence was relevant to their defense that their actions were not retaliatory for protected activity. While testimony about information prison officials received from a confidential informant was hearsay, it was not offered to show the truth of the accusation that the prisoner stole paper, but merely that the officials suspected that he had and acted on the basis of that suspicion. Hale v. McMillen, #09-2737, 2010 U.S. App. Lexis 2249 (Unpub.3rd Cir.).

Segregation: Administrative

     A pretrial detainee claimed that jail employees violated his due process rights by transferring him from the general population to a segregation unit without a hearing. Upholding summary judgment for the defendant employees, a federal appeals court found that the detainee failed to show that the employees acted to punish him. Their asserted rationale for the segregation was promoting the safety of those in the jail, and the safety of the general public. Despite the detainee's rejection of this rationale, he failed to present anything in the record that disputed it. The detainee had allegedly threatened an officer, and could not adequately contest the legitimacy of segregating him for trying to solicit the officer's murder. Love v. Kirk, #09-1943, 2010 U.S. App. Lexis 830 (Unpub. 7th Cir.).

Sexual Assault and Harassment

****Editor's Case Alert****  

     A county sheriff hired a deputy, who was a allegedly provided with little or no training. The deputy was first assigned duties as a jailer, and later as a "road deputy." During his last week on the job, after resigning to pursue a position with the state Department of Corrections, he encountered a female employee at a convenience store who asked his advice on some legal problems. She declined his offer to go on a date with him. Learning that she had several outstanding arrest warrants, and owed approximately $800 in fees and fines, he drove to the store on his last day on the job, arrested her, and transported her to the jail, telling her that he would not have done so if she had agreed to the date. At the jail, the deputy bet a jailer that he could get the arrestee to reveal her breasts. He then told the arrestee that he could get her fines reduced if she would show him her breasts, and she eventually complied. He then allegedly grabbed her exposed breast. She sued the deputy and the sheriff, claiming that the sheriff failed to properly train the deputy. The deputy was also arrested and pled guilty to second degree sexual assault. The deputy had received a policy manual, but had not been required to read it, and, in fact, did not read it. He was scheduled to attend a training academy, but had not yet attended it at the time of the incident. The trial court found the deputy liable, as well as the sheriff in his official capacity, while granting the sheriff qualified immunity in his individual capacity. A federal appeals court overturned the inadequate training liability, noting that there was no duty specified in state statutes for sheriffs to train subordinates not to sexually assault detainees, and that there had been no past pattern of such conduct by the sheriff's deputies that would have put him on notice about the need for such training. Additionally, since a reasonable officer would know that intentionally sexually assaulting a detainee was illegal, and the deputy admitted that he knew "that such conduct was impermissible," the plaintiff failed to show that the lack of training caused the assault. Parrish v. Ball, #08-3517, 2010 U.S. App. Lexis 2748 (8th Cir.).

Sexual Offenders

     A prisoner failed to show that his classification as a sex offender violated his due process rights. While the court stated that in some cases misclassification as a sex offender may violate due process if there is "stigma plus," (a "stigmatizing statement plus a deprivation of a tangible interest"), in this case the prisoner failed to establish even the threshold requirement of a reputation-tarnishing statement that was false. Additionally, under existing regulations, officials are not prohibited from considering "acquitted conduct" while assigning a needs score to determine the need for treatment as a sexual offender. The prisoner's convictions arose from acts he committed against a sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine years old. He was convicted of various violent acts, but acquitted of sexual assault. Burgos-Vega v. Lantz, #08-4748, 2010 U.S. App. Lexis 4261 (2nd Cir.).

Work/Education/Recreation Programs

     A Michigan inmate assigned physical plant maintenance duties was paid at a heightened pay scale of $3.04 a day instead of the standard inmate pay of $1.77 per day because a classification director noted that he had worked in numerous hazardous situations, he had a state certified mechanics license, he had a certificate of completion in auto mechanics from a local community college, and he had over 1,000 hours of training. Such a pay differential was authorized under a prison policy directive when a prisoner provides proof of having been licensed by a state agency to provide specific services. The director, after auditing prisoners' pay rates, reduced this prisoner's pay, finding that he was not using his license in the performance of his prison duties. The defendants were entitled to qualified immunity in the prisoner's due process claim over the lowering of his pay without notice or a hearing. It was not clearly established that he had a constitutionally protected property interest in a prison job a wages set by state regulations. Pickelhaupt v. Jackson, #08-2310, 2010 U.S. App. Lexis 2449 (Unpub. 6th Cir.).

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     Drug Abuse and Treatment: "Behind Bars II: Substance Abuse and America's Prison Population," by the National Center on Addiction and Substance Abuse at Columbia University (2010). This report states that 65% of all inmates meet the medical criteria for substance abuse addiction, but only 11% of them receive treatment for such addiction.

     First Amendment: "Prisoners' Rights. Dobbey v. Illinois Department of Corrections: A Small Piece of a Growing Policy Puzzle" by Ashley M. Belich, 5 Seventh Circuit Rev. 272 (2009) [Full Article] [Synopsis: 16 MB mp3]

     First Amendment: "First Amendment. Prisoners and Public Employees: Bridges to a New Future in Prisoners' Free Speech Retaliation Claims" by Matthew D. Rose, 5 Seventh Circuit Rev. 159 (2009) [Full Article] [Synopsis: 20 MB mp3]

     Statistics: Prison Prison Facts and Statistics website.


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

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

AELE Seminars:

Lethal and Less Lethal Force
Oct.11-13, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

Click here for further information about all AELE Seminars.

Cross References
Access to Courts/Legal Info -- See also, Mail
Access to Courts/Legal Info-- See also, Retaliation
Attorneys' Fees -- See also, Prison Litigation Reform Act: Attorneys' Fees
Diet -- See also, Religion (2nd case)
Federal Tort Claims Act -- See also, Prison and Jail Conditions: Asbestos
First Amendment -- See also, Retaliation
Mail -- See also, Prison Litigation Reform Act: Attorneys' Fees
Negligent or Inadequate Hiring, Supervision, Retention & Training -- See also, Sexual Assault and Harassment
Prisoner Death/Injury -- See also, Prison and Jail Conditions: Asbestos
U.S. Supreme Court Actions -- See also, Prisoner Assault: By Officers (2nd case)

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