December 2017 Jail and Prisoner Law Bulletin

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Jan. 22-25, 2018 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, 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: 2017 JB December
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CONTENTS

Digest Topics
False Imprisonment

First Amendment

Medical Care: Mental Health

Prison Litigation Reform Act: Exhaustion of Remedies

Prison Litigation Reform Act: “Three Strikes” Rule (2 cases)

Prisoner Suicide (3 cases)

Sex Offenders

Resources

Cross_References

AELE Seminars:

Jail and Prisoner Legal Issues

Jan. 22-25, 2018 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Click here for further information about all AELE Seminars.

MONTHLY CASE DIGEST

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

Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
Access to cases linked to www.findlaw.com may require registration, which is free.

False Imprisonment

A woman was indicted by a grand jury, arrested, and taken to jail, where she remained for 96 days to be brought before a judge. Denying a pre-trial detainee access to the courts for a prolonged period violates basic procedural due process, so a federal appeals court reinstated her excessive detention claim. Jauch v. Choctaw County, #16-60690, 2017 U.S. App. Lexis 21029 (5th Cir.).

First Amendment

A prisoner filed a federal civil rights lawsuit claiming that his First Amendment rights were violated when he was allegedly disciplined for threatening to start civil litigation as well as file a criminal complaint against prison officials. Such threats to sue and file criminal complaints, so long as not baseless, are protected by the First Amendment. Dismissal of the complaint concerning initiating civil litigation was improper, but qualified immunity applied to the claim about filing a criminal complaint because that right was not previously clearly established. Entler v. Gregoire, #14-35053, 872 F.3d 1031 (9th Cir. 2017).

Medical Care: Mental Health

A jail detainee received medical treatment for a burn that she suffered from setting her seatbelt on fire while trying to escape a police car following her arrest. She claimed that the medical treatment was inadequate, as a result of which she required skin grafting surgery after her release. She also claimed that she was illegally deprived of her psychiatric medicine for about two weeks while detained. A federal appeals court overturned summary judgment for the defendants in part, finding that a reasonable jury could find that one doctor knew or should have known of the plaintiff’s need for psychiatric medication as shown by a nurse’s notation, yet failed to take steps to ensure that she received it. There was also evidence that psychiatric social workers knew or had reason to know that she had serious psychiatric needs that required treatment and that there was a risk that she would begin experiencing symptoms of depression and bipolar disorder days before she could expect to receive any medication to treat those conditions. Richmond v. Huq, #16-2560, 872 F.3d 355 (6th Cir. 2017).

Prison Litigation Reform Act: Exhaustion of Remedies

A trial court dismissed a federal civil rights lawsuit for failure to exhaust available administrative remedy as required by the Prison Litigation Reform Act, 42 U.S.C. 1997e(a). A federal appeals court reversed, holding that while the plaintiff was incarcerated when he began his lawsuit, he was free when he filed his amended complaint, so he was not then a “prisoner” as defined by the statute, so the exhaustion of remedies requirement did not apply to him. Jackson v. Fong, #15-15547, 870 F.3d 928 (9th Cir. 2017).

Prison Litigation Reform Act: “Three Strikes” Rule

A federal appeals court overturned the trial court’s dismissal of a prisoner’s lawsuit alleging deliberate indifference to his serious medical needs under the “three strikes” rule of the Prison Litigation Reform Act. Because the plaintiff alleged a total lack of hepatitis treatment and the resulting onset of cirrhosis, his complaint fell within the imminent-danger exception to the three strikes provision. Mitchell v. Warden Nobles, #16-12043, 873 F.3d 869 (11th Cir. 2017).

A prisoner had been in solitary confinement for eight years, and was facing continued solitary confinement for the next ten years. He was diagnosed with intermittent explosive disorder, schizoaffective disorder, and other conditions that made him dangerous to others. He claimed that the isolation, heat, and restricted airflow in solitary confinement aggravated his psychological problems and his asthma. He sought to proceed in his lawsuit as a pauper, but this was denied after he conceded that at least three of his prior suits or appeals had been dismissed as frivolous, malicious, or failing to state a claim. A federal appeals court vacated the dismissal of his suit, citing “imminent harm” exception to the three strikes rule. The plaintiff argued that the conditions of his confinement made him attempt to harm himself, that he had twice tried to commit suicide, and had engaged in self-mutilation. His history, coupled with the prison’s diagnosis of his condition, made his allegations plausible. Sanders v. Melvin, #17-1938, 873 F.3d 957 (7th Cir.).

Prisoner Suicide

A federal appeals court overturned summary judgment on claims against a psychiatrist and several nurses arising from the plaintiff prisoner’s alleged July 2014 suicide attempt. A genuine dispute existed as to whether the plaintiff attempted suicide on that date, and if he did, whether these defendants responded in a reasonable manner. At the same time, he failed to show that his psychiatric policy preferences were based on constitutional standards, and thus his preferences did not state a claim for a constitutional violation. The court also rejected his claims that the general course of his treatment by the medical defendants amounted to deliberate indifference. Grogan v. Kumar, #15-60678, 873 F.3d 273 (5th Cir. 2017).

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

A jail nurse interviewing an arrested traffic offender was told that he was “bipolar,” “paranoid,” had “panic attack[s]” and had a history of substance abuse. She noted the need for a mental health evaluation and for a referral for emergency treatment on discharge. He was returned to the general population. He later requested another meeting with the nurse and described himself as anxious, paranoid, tense, unable to sleep, and experiencing “severe rage.” She scheduled him for a later appointment with a nurse specializing in mental health, but the earliest possible appointment was not made because a deputy’s vacation made it difficult. He hung himself in the shower before the appointment was to take place. A federal appeals court upheld denial of qualified immunity to the jail nurse, finding that there was a triable issue of fact as to whether she violated the decedent’s clearly established right to sufficient treatment for a serious medical problem. Bays v. Montmorency County, 874 F.3d 264 (6th Cir. 2017).

A prisoner with substance abuse problems was serving a sentence at a halfway house. After he was discovered in possession of contraband, he was transferred to another facility where he was assessed and assigned to a unit that did not feature extensive or individualized supervision. In his cell, he made a noose from a bed sheet and committed suicide. His mother was given information that was incomplete and inaccurate, stating that her son had died at a different facility, an error repeated on his death certificate.

Over two years into her civil-rights suit, her attorney received a previously-undisclosed investigative report that contained statements by fellow inmates about a guard who allegedly refused the prisoner’s requests for psychiatric assistance and urged him to kill himself. Due to a clerical error, the disc containing those disclosures was misfiled, and not accessed until 10 months later. By that time, the complaint, premised on a knew-or-should-have-known theory of vulnerability to suicide, had been partially dismissed. A federal appeals court vacated a denial of a motion for leave to amend the complaint, finding that the denial was an impermissible exercise of discretion. Mullin v. Balicki, #16-2896, 2017 U.S. App. Lexis 22119 (3rd Cir.).

Sex Offenders

A registered sex offender served a one-year sentence for driving with a revoked license, which was to be followed by mandatory supervised release. On his release date, he submitted two proposed host sites, seeking approval for one of them. The Department of Corrections had not investigated the proposed sites, so a parole supervisor ordered his parole officer to issue a parole violation rather than release him.

The parole officer’s report contained false statements, including that electronic monitoring was a condition of the supervised release and that the Department had attempted to place him at a host site that would allow him to comply with the electronic monitoring requirement. As a result, he spent six more months in custody before being released because of good time credits. A federal appeals court upheld summary judgment in favor of the parole officer on the basis of qualified immunity. No court had previously held that the Fourth Amendment compels the release of sex offenders who lack lawful and approved living arrangements. Absent these arrangements, their continued detention does not violate clearly established rights. Smith v. Anderson, #16-2333, 2017 U.S. App. Lexis 21569 (7th Cir.).

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Resources

Disabilities: Management of Inmates With Disabilities, Program Statement #5200.05, Federal Bureau of Prisons (October 27, 2017).

Reference:

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

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

AELE Seminars

Jail and Prisoner Legal Issues

Jan. 22-25, 2018 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,