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A civil liability law publication for officers, jails, detention
centers and prisons
ISSN 0739-0998 - Cite this issue as: 2018 JB June
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First Amendment
Medical Care (3 cases)
Prison Litigation Reform Act: “Three Strikes” Rule
Prisoner Discipline
Prisoner Restraint
Prisoner Suicide
Search: Visitors
Voting
AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, 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.
- 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.
First Amendment
****Editor's Case Alert****
A prisoner’s right not to be forced to serve as a prison informant or provide false information to prison officials is protected by the First Amendment. A federal appeals court, however, upheld summary judgment on the basis of qualified immunity to the defendants in a First Amendment retaliation lawsuit by a plaintiff prisoner who claimed that his constitutional rights were violated when he was put on a restricted status known as Involuntary Protective Custody for over six months because he refused the demands of prison guards to act as a snitch, or to falsify his account of a minor incident in the commissary. The appeals court ruled that the defendants were entitled to qualified immunity because the court had not previously recognized the particular speech and speech‐related activity as protected by the First Amendment. Burns v. Martuscello, #15-1631, 2018 U.S. App. Lexis 12123 (2nd Cir.).
Medical Care
A prisoner became dizzy after receiving his medication one evening, then vomited and lost consciousness, hitting his head when he fell. Three hours passed before he was taken to a nearby hospital. He thought he might have received the wrong medication. Doctors stapled a deep laceration and found him to have suffered a serious concussion. His deliberate indifference claims against the officer who distributed the medication were rejected, as his actions were, at worst, a mistake, not rising to the level of deliberate indifference. After discovery, the trial court, through the magistrate, granted the remaining defendants (a nurse and a supervisor) summary judgment. A federal appeals court ruled that the matter could proceed to appeal, even though the officer was dismissed before he had an opportunity to consent to the disposition of the case by a magistrate. There was no final judgment until after the state (representing the defendants) filed its consent and the officer was a prison employee who stood in exactly the same position as the other two defendants for purposes of legal representation. DaSilva v. Rymarkiewicz, #16-1231, 2018 U.S. App. Lexis 10315 (7th Cir.).
A prisoner claimed that prison officials and correctional administrators were deliberately indifferent to a painful tumor that was growing on his neck and took actions that prevented him from filing a timely lawsuit on that claim. In screening the case, a trial judge dismissed it for impermissibly joining two unrelated sets of claims against different defendants. The prisoner moved for reconsideration under Federal Rule of Civil Procedure 59(e), arguing that his claims were not unrelated. The trial judge denied the motion, stating that Rule 59(e) does not permit reconsideration of a non-final order of dismissal, and entered a judgment ending the case.
A federal appeals court reversed, ruling that the trial judge misunderstood his discretion to consider the reconsideration motion. Though Rule 59(e) did not apply, a trial judge may reconsider an interlocutory order at any time before final judgment. The judge should have done so, and reading the complaint “generously,” the claims were related, so further proceedings were required. Terry v. Spencer, #17-2331, 2018 U.S. App. Lexis 10784 (7th Cir.).
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After a pretrial detainee died, his successor-in-interest filed a federal civil rights lawsuit claiming inadequate medical care. A federal appeals court overturned summary judgment for the defendants, finding that the trial court improperly applied a standard of review looking to see whether there had been a subjective deliberate indifference to the detainee’s serious medical problems, rather than an objective deliberate indifference. This incorrect legal standard necessitated further proceedings. Gordon v. County of Orange, #16-56005, 2018 U.S. App. Lexis 10977 (9th Cir.). |
Prison Litigation Reform Act: “Three Strikes” Rule
Prior precedent in the D.C. Circuit held that under the “three strikes” rule of the Prison Litigation Reform Act (PLRA), a trial court’s decision to decline to exercise supplemental jurisdiction over state law claims does not count as a strike against a prisoner seeking to proceed as a pauper in later litigation. A federal appeals panel, based on that ruling, has now held that it was not a strike under the PLRA when a trial court in effect, though not in its exact terms, declined to hear state law claims in situations where a federal statute, 28 U.S.C. 1367, would authorize it to resolve the issue. Accordingly, the appeals court granted the plaintiff's petition to proceed as a pauper on appeal and remanded with instructions for the trial court to do the same, as the plaintiff did not have “three strikes.” Ladeairous v. Sessions, #15-5324, 884 F.3d 1172 (D.C. Cir. 2018).
Prisoner Discipline
A prisoner challenged a trial court’s dismissal of his lawsuit arising out of the incident that led to his disciplinary hearing as barred for lack of subject matter jurisdiction under Heck v. Humphrey, #93-6188, 512 U.S. 477, 114 S. Ct. 2364 (1994), which as extended by Edwards v. Balisok, #95-1352, 520 U.S. 641 (1997) strips a district court of jurisdiction in a § 1983 suit brought by an imprisoned plaintiff “if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity’” of a punishment that “deprive[d] him of good-time credits,” also referred to as gain time. A federal appeals court vacated the judgment, ruling that the lawsuit was not barred by Heck. In this case, the plaintiff was punished and lost good time, but his 42 U.S.C. 1983 suit, if successful, would not necessarily imply that his punishment was invalid. The court explained that, because success in this section 1983 suit would not necessarily be “logically contradictory” with the underlying punishment, the suit was not barred by Heck. The essence of the prisoner’s claim was that an officer used excessive force against him, and that could be true even if the prisoner did lunge at the officer, which was the basis of his punishment, Dixon v. Pollock, #16-15040, 2018 U.S. App. Lexis 10215 (11th Cir.).
Prisoner Restraint
****Editor's Case Alert****
A man sentenced to 30 days for civil contempt for failing to appear at a child support enforcement hearing collapsed in his cell. An overhead camera recorded officers and medical staff responding to the lethargic and unbalanced detainee, with blood and saliva coming from his mouth, trying to stand. The officers told him to “stay down,” pulled him from the cell, and placed him face down on the floor. Despite a jail policy banning the placement of restrained inmates in a prone position and a medic’s appeal to handcuff him in front, he was handcuffed behind his back and restrained face down. He died following a 22-minute struggle during which he continually said that he could not breathe.
In a federal civil rights lawsuit over the death, the trial court denied the defendants’ motion for summary judgment on qualified- and statutory-immunity grounds. A federal appeals court upheld this result. Because the detained was sanctioned outside the criminal context (civil contempt), the Fourteenth Amendment governed. The appeals court rejected an argument that, as long as they acted without reckless or malicious intent, the officers could apply any degree of force. Existing precedent gave them notice that it “[w]as unconstitutional” to create asphyxiating conditions by “forcibly restraining an individual in a prone position for a prolonged period” when that individual posed no material threat. Because the finding regarding the defendants’ “knowledge of a substantial risk of serious harm” was based on the detainee’s complaints about his inability to breathe, the qualified immunity inquiry was sufficiently individualized. Hopper v. Plummer, #17-3175, 2018 U.S. App. Lexis 9113, 2018 Fed. App. 71P (6th Cir.).
Prisoner Suicide
An arrestee was taken to a hospital because of an irregular heartbeat. He tried to escape and stated that he wanted the officers to take his life so that he would not be sent back to prison. He appeared determined to be suicidal. After being treated by psychiatrists and showing improvement, he was released and transported to a city detention facility. Two days later, he was moved to a medical unit, suffering from detoxification from heroin use, congestive heart failure, hypertension, and diabetes. An officer was assigned to monitor the arrestee in his cell via closed-circuit television.
She last saw him pacing by the shower area at 9:05 a.m. Within the next 14 minutes, she discovered that he had hanged himself, using his ripped hospital gown. The trial court dismissed federal civil rights claims by his estate. A federal appeals court upheld this result, ruling that the complaint failed to allege that the officer knew that the arrestee presented a suicide risk. There was no claim that any identifiable jail official had knowledge or suspected that the decedent was suicidal or was harming himself. The complaint also failed to allege any constitutional violation arising out of a municipal policy that would expose the city to liability. Whitney v. City of St. Louis, #17-2019, 2018 U.S. App. Lexis 9129 (8th Cir.).
Search: Visitors
The Massachusetts Department of Correction’s policy that visitors to correctional facilities would be subject to search by drug-detecting dogs was not inconsistent with the Department’s existing regulations, but was not exempt from the Administrative Procedure Act (APA), Mass. Gen. Laws ch. 31A, 1 et seq. A lawsuit sought to prevent the Department from implementing the new policy. The trial court denied the plaintiffs’ motion for a preliminary injunction, and the policy was then implemented. A second trial court judge entered judgment declaring that the Commissioner of Correction had the authority to establish the policy without having to comply with the procedural requirements of the APA. The highest court in the state remanded this case to the trial court for entry of a judgment declaring that the Department was required to, but did not, meet the requirements of the APA when it adopted this regulation, but also that the regulation, if properly adopted in conformance with the APA, would not conflict with existing Department regulations. Carey v. Commissioner of Corrections, #SJC-12369, 479 Mass. 367, 2018 Mass. Lexis 243 (2018).
Voting
Florida authorities appealed a trial court’s orders in favor of nine convicted felons who had finished their sentences and wanted their voting rights restored. A federal appeals court overturned the orders. The Fourteenth Amendment “expressly empowered” the states to abridge a convicted felon’s right to vote. Further, past binding precedent held that the Governor had “broad discretion” to grant and deny clemency, even when the applicable regime lacked any standards. And although a reenfranchisement scheme could violate equal protection if it had both the purpose and effect of “invidious discrimination,” the plaintiffs had not alleged -- let alone established as undisputed facts -- that Florida’s scheme had a discriminatory purpose or effect. Hand v. Scott, #17-11388, 2018 U.S. App. Lexis 10675 (11th Cir.).
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Statistics: Capital Punishment, 2016 - Statistical Brief by Elizabeth Davis, and Tracy L. Snell, Bureau of Justice Statistics (April 30, 2018 NCJ 251430).
Statistics: Correctional Populations in the United States, 2016 by Danielle Kaeble, and Mary Cowhig, Bureau of Justice Statistics (April 26, 2018 NCJ 251211).
Statistics: Probation and Parole in the United States, 2016 by Danielle Kaeble, Bureau of Justice Statistics (April 26, 2018 NCJ 251148).
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
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Click here for further information about all AELE Seminars.
Governmental Liability: Policy/Custom – See also, Prisoner Suicide
Prisoner Assault: By Officer – See also, Prisoner Discipline
Prisoner Death/Injury – See also, Prisoner Restraint
Retaliation – See also, First Amendment
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