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Abortion and Procreation

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

     A federal prisoner had a prostate operation performed by a doctor who was not a Federal Bureau of Prisons (BOP) employee. He later noticed that the amount of his ejaculate was reduced, and the doctor diagnosed him with retrograde ejaculation, advising that a specific medication should be prescribed to heal a hole opened up during the laser surgery, in order to prevent the prisoner's ejaculate from going into his bladder. The prisoner was afraid that without the recommended treatment, he might experience impotence. The BOP declined to provide the medication, taking the position that treatment of a sexual dysfunction is not "medically necessary." It also stated that medical providers should not talk to inmates about ejaculation, "since it is a prohibited sexual act." The trial court held that the prisoner's claims could survive summary judgment because the prisoner had alleged that retrograde ejaculation could make him sterile and that prisoners had a fundamental right to preserve their procreative abilities for possible use after their release from custody. A federal appeals court reversed, finding that the defendants were entitled to qualified immunity. No clearly established law guaranteed a prisoner's right to treatment for infertility, erectile dysfunction, or retrograde ejaculation. Michtavi v. Scism, #14-4104, 2015 U.S. App. Lexis 21553 (3rd Cir.).

Disability Discrimination: Prisoners

    A prisoner had a work assignment as a stockman in food services. Three months after a work-related injury, he was fired for medical reasons, specifically damage to his prosthetic leg. He sued prison administrators for disability discrimination in employment under Title II of the Americans with Disabilities Act (ADA). A federal appeals court upheld summary judgment for the defendants, ruling that Title II of the ADA is inapplicable to a claim of employment discrimination by a prisoner in a prison job. Neisler v. Tuckwell, #15-1804, 807 F.3d 225 (7th Cir. 2015).

Freedom of Information

     An Arkansas prisoner claimed that a state freedom of information law violated due process and equal protection by only allowing incarcerated felons such as himself to request public records through an attorney. Based on that restriction, a police department employee denied his request for information concerning a person he had assaulted. A federal appeals court rejected the equal protection claim, finding the restriction rationally related to conserving government resources and to preventing the unlawful use of the information to harass or threaten a witness or victim, both legitimate governmental purposes. The due process claim was rejected since the prisoner had not shown that he would suffer any actual injury as a result of the denial of the request. Holt v. Howard, #14-3064, 806 F.3d 1129 (8th Cir. 2015).

Gang Activity

     A California prisoner challenged a decision by state correctional authorities to "validate" him as an associate of the Mexican Mafia gang, which then led to his transfer to a Security Housing Unit (SHU) for an indeterminate time. An appeals court found that the warden did not establish a direct link between the prisoner's actions while participating in a prison disturbance and orders from another prisoner shown to be a Mexican Mafia associate. While the actions were consistent with those orders, without evidence that he did so to comply with orders from that specific person, the trial court properly ordered his gang validation expunged and his residency in the SHU terminated. In re Martinez, #A142502, 42 Cal. App. 4th 299, 2015 Cal. App. Lexis 1026.

Prison Litigation Reform Act: "Three Strikes" Rule

      A prisoner was entitled to proceed as a pauper in an appeal from the dismissal of a complaint that arguably constituted his third "strike" under the "three strikes rule" of the Prison Litigation Reform Act, since it was not a strike upon a "prior" occasion. A fourth case that the prisoner lost did not constitute a "strike" as it was not dismissed as frivolous or for failure to state a claim. Because the trial judge in that prior case considered evidence submitted by the defendant, the decision should be considered a grant of summary judgment, rather than a "strike." Richey v. Dahne, #12-36045, 807 F.3d 1202 (9th Cir. 2015).

Prisoner Assault: By Inmate

     An Illinois prisoner sued three prison officials for failing to protect him from an attack by his cellmate, who stabbed him with a pen. A federal appeals court reversed summary judgment for the defendants. If a jury believed the prisoner's allegation that he alerted each of the defendant's of his cellmate's threats to stab him, a reasonable jury could find that they were aware of the danger posed to him. Gevas v. McLaughlin, #13-1057, 798 F.3d 475 (7th Cir. 2015).

Prisoner Death/Injury

     A woman sued a number of individuals over the death of her son by heatstroke while he was incarcerated. The defendants filed an interlocutory appeal from the trial court's order deferring a ruling on their motion to dismiss the lawsuit on the basis of qualified immunity and ordering limited factual discovery. A federal appeals court found that it had no jurisdiction on the appeal, as the trial court's order indicated that the complaint was sufficient and that further factual development was needed to rule on the motion. The discovered ordered was narrowly limited to the facts needed for a ruling on the defense. Hinojosa v. Livingston, #14-40459, 807 F.3d 657 (5th Cir. 2015).

Prisoner Discipline

     A prisoner claimed that his First and Fourteenth Amendment rights were violated in the course of prison disciplinary proceedings. A correctional officer issued an incident report charging him with “Possession of Anything Unauthorized” for having another inmate's litigation document. The hearing officer modified the charge to “Conduct which Interferes with the Security or Orderly Running of the Institution," found him guilty, and ordered that he lose good time credits. He claimed that it violated due process that he was not informed in advance of the modification of the charges. After the hearing, however, an administrative appeal overturned the determination and restored his good time credits, so any procedural due process error was corrected through the administrative appeal process. Frank v. Schultz, #14-55890, 2015 U.S. App. Lexis 21556 (8th Cir.).

Sexual Assault

     A female inmate was handcuffed and in leg restraints in a holding cell in the medical unit of a Criminal Justice Center. Two detention officers on duty there were called away to assist with a medical emergency elsewhere. During their absence, a male inmate entered her unlocked holding cell and allegedly raped her. The female inmate sued the two officers individually, and the county sheriff individually and in his official capacity for allegedly acting with deliberate indifference to the risk of the rape in violation of the Eighth Amendment. The three defendants appealed from the denial of their motions for qualified immunity. The appeals court rejected the appeals by one detention officer and the sheriff in his individual capacity, because their appeals did not turn on discrete questions of law, but instead asked the appeals court to resolve questions of fact as to whether the officer knew the cell door was unlocked, and whether the sheriff was aware of the risk of sexual assaults based on alleged understaffing, the lack of video surveillance, and prior sexual assaults. Qualified immunity was granted to the second officer, however, as the plaintiff could not show that he violated a clearly established constitutional right, since this officer left the unit first and the plaintiff presented no evidence to contradict their statement that they did not know that the cell door was unlocked. Henderson v. Glanz, #14-5077, 2015 U.S. App. Lexis 22729 (10th Cir.).

Transsexual Prisoners

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

     A transsexual prisoner claimed that defendant prison officials acted with deliberate indifference to her serious medical needs by refusing to provide hormone replacement therapy for her Gender Identity Disorder (GID). The plaintiff's claims against the defendants in their official capacities were barred by sovereign immunity. The defendants in their individual capacities were entitled to qualified immunity because the evidence, even viewed in the light most favorable to the plaintiff, did not show an Eighth Amendment violation. The appeals court noted that "numerous" mental health professionals had evaluated the plaintiff, but that none of them reached a diagnosis of GID or stated that GID treatment was appropriate. The fact that the plaintiff disagreed with their medical judgment was no basis for a federal civil rights claim. Reid v. Griffin, #15-1678, 2015 U.S. App. Lexis 21926 (8th Cir.).

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     Federal Prison Policies: Electronic Cigarettes, Program Statement 006-2015, Federal Bureau of Prisons (Oct. 14, 2015).

     Federal Prison Policies: Escorted Trips, Program Statement 5538.07, Federal Bureau of Prisons (Dec. 10, 2015).

      Prison Rape: Investigating Sexual Assault and Sex Related Crimes in Confinement Settings: A Resource Guide for Criminal Investigators, National PREA Resource Center and International Association of Chiefs of Police (2015).

     Statistics: Correctional Populations in the United States, 2014, by Lauren Glaze, Danielle Kaeble, Todd Minton, and Anastasios Tsoutis, Bureau of Justice Statistics (December 29, 2015 NCJ 249513).

     Statistics: Disabilities Among Prison and Jail Inmates, 2011–12, by Marcus Berzofsky, Jennifer Bronson, and Laura Maruschak, Bureau of Justice Statistics (December 14, 2015 NCJ 249151).

  Reference:

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

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