November 2019 Jail and Prisoner Law Bulletin

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Jail and Prisoner Legal Issues
Jan. 13-16, 2020 - Orleans Hotel, Las Vegas

Investigation, Management, and Use of Lethal and Less Lethal Force

May 4-7, 2020 - 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: 2019 JB November
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CONTENTS

Digest Topics

Access to Courts/Legal Info

Disability Discrimination: Prisoners

Drug Abuse and Screening

Firearms Related

Governmental Liability: Policy/Custom

Medical Care (2 cases)

Medical Care: Mental Health (2 cases)

Sex Offenders

Resources

Cross_References

AELE Seminars:

Jail and Prisoner Legal Issues
Jan. 13-16, 2020 - Orleans Hotel, Las Vegas

Investigation, Management, and Use of Lethal and Less Lethal Force

May 4-7, 2020 - 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.

Access to Courts/Legal Info

The California state constitution and a state statute guarantees indigent prisoners a right of meaningful access to the courts to pursue civil lawsuits. An intermediate state appeals court ruled that a discretionary measure available to protect that right is the appointment of a lawyer, which the trial judge had discretion to do. As the trial court’s denial of a motion to appoint a lawyer for the plaintiff prisoner in his medical malpractice case against a prison doctor and nurse practitioner was not based on an :informed exercise” of its discretion, further consideration was ordered.

The decision as to whether to appoint a lawyer was governed by a three-step test set forth in Apollo v. Gyaami, #A118431, 167 Cal.App.4th 1468, 85 Cal Rptr. 3d 127, 2008 Cal App. Lexis 1719 and Wantuch v. Davis, #B079141, 32 Cal.App.4th 786, 39 Cal. Rptr.2d 47 (1995). The trial court also has discretion to appoint an expert witness to testify for the prisoner. Finally, the appeals court ruled that an indigent civil litigant may argue on appeal that the right of meaningful access to the courts provides a basis for appointing a lawyer despite not raising that argument in the trial court. Smith v. Ogbuchi, #F075882, 2019 Cal. App. Lexis 721, 2019 WL 3711758.

Disability Discrimination: Prisoners

A Pennsylvania prisoner suffers from myasthenia gravis, a neuromuscular disease that limits his ability to see, walk, speak, and lift. When he arrived at the prison, he was given an accessible shower stall, a cell closer to the medical and dining halls, and was provided with leg braces. He was later moved to a Restrictive Housing Unit, which was not equipped with disabled-accessible showers. He was not granted access to an accessible shower nor was he escorted to the infirmary shower facilities.

After he filed an unsuccessful grievance, he was moved to a handicapped-accessible cell but was not provided access to a shower. When he was taken to a shower that was not handicapped-accessible, the hot water worsened his symptoms, so he tried to leave the shower room. As there were no rails or safety bars, he slipped and was knocked unconscious. As a result of his injuries, he is now confined to a wheelchair, suffering from headaches and back pain. After pursuing another unsuccessful grievance, he sued for disability discrimination under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA).

A federal appeals court overturned the dismissal of the lawsuit. Providing showers for prisoners is a “program, service, or activity” under the ADA and the RA. The plaintiff adequately alleged that he was denied a shower “by reason of” a disability and that the prison was deliberately indifferent in failing to provide him with an accessible shower. Furgess v. Pennsylvania Dept. of Corrections, #18-1758, 2019 U.S. App. Lexis 23680 (3rd Cir.).

Drug Abuse and Screening

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

Five prisoners serving sentences for possession of small amounts of marijuana in California prisons argued that these sentences should be set aside as their actions were no longer a crime in the state. A California intermediate appeals court has ruled that the possession of less than one ounce of cannabis in prison in the state is not a felony, although possession is still prohibited by prison rules. As part of the process of legalizing the recreational use of marijuana in the state, voters eliminated criminal sanctions for possession of less than an ounce of marijuana and retained criminal sanctions for possessing more than an ounce or for smoking or ingesting it in prison.

The state Attorney General urged the court to interpret the law to avoid an “absurd result” of decriminalizing marijuana possession in prison. The court declined to use rules of statutory construction to distort the “plain meaning” of a law intended to decriminalize the possession of a very small amount of marijuana, even in prison. By expressly providing that laws concerning smoking and ingesting marijuana in prison are not affected by the decriminalization of possession of less than an ounce of the drug, the court ruled, the drafters of the proposition and the voters demonstrated that they were aware of the prison population and chose to distinguish possession from consumption.

“A result is not absurd because the outcome may be unwise. Cognizant of the humble role of the courts in construing statutes, not rewriting them to subscribe to our version of sound public policy, we reverse the trial court’s denial of defendants’ petitions for relief.” The convictions are to be vacated as the conduct involved is no longer criminal under state law. California v. Raybon, #C084853, 36 Cal. App. 5th 111, 2019 Cal. App. Lexis 532, 2019 WL 2428766.

Editor’s Note: An entirely opposite result was reached by another district of the California Court of Appeals in People v. Perry, #A153649. 32 Cal.App.5th 885, 2019 Cal App. Lexis 170, 2019 WL 987915, review denied 2019 Cal. Lexis 4393 (2019), ruling that the change in law did not decriminalize the possession of small amounts of marijuana in prison. As these opinions are conflicting, there may later be a ruling from the California Supreme Court resolving the conflict. In any event, possession may still be the basis for disciplinary punishment for violating prison rules, even in areas of the state governed by the ruling in Raybon.

Firearms Related

Two Illinois prisoners who were struck by buckshot fired by guards over a crowded prison dining hall claimed that this violated their Eighth Amendment rights against cruel and unusual punishment. The defendants asserted that they fired the shots as a necessary warning to two other prisoners who were fighting and resisting the efforts of other guards on the floor, armed only with pepper spray, who were trying to break up the fight. The plaintiffs contended that the shots were fired after the fight had already broken up and, further, that the guards did not aim their shots at a “shot box” intended to prevent ricochets.

A federal appeals court overturned summary judgment for the defendants. It ruled that the force used was more than de minimus (minimal), and that the claimed facts would support findings of intent to make contact and of malice. While many facts were disputed, viewing the facts in favor of the plaintiffs for purposes of summary judgment, the force used was “grossly disproportionate” to the force that could plausibly have been thought needed. McCottrell v. White, #17-2295, 2019 U.S. App. Lexis 22411 2019 WL 3405098 (7th Cir.).

Governmental Liability: Policy/Custom

A pretrial detainee claimed that a deputy sheriff used excessive force against him in an unprovoked attack during a courtroom appearance. He was escorted in handcuffs and other restraints to a courtroom located within the city jail for a hearing. After he “politely addressed” the judge, he claimed, the judge began to respond, but the deputy, who had been standing directly behind him, suddenly without warning grabbed him, spun him around, and threw him face first into a nearby glass wall and metal post, causing him serious and permanent injuries. The incident was captured on video by courtroom cameras and the deputy was suspended for 30 days as a result.

Upholding a dismissal of municipal liability claims against the city/county, a federal appeals court found no evidence that the defendant municipality had a custom, policy, or practice of tolerating and ratifying the use of excessive force. The deputy’s actions, no matter how egregious, could not, standing alone, give rise to an inference that the municipality was at fault. The deputy’s shortcomings could have resulted from factors other than a faulty training program or other municipal deficiency. “To adopt lesser standards of fault and causation would open municipalities to unprecedented liability.” Waller v. City and County of Denver, #17-1234, 2019 U.S. App. Lexis 23328, 2019 WL 3543115 (10th Cir.).

Medical Care

An Illinois prisoner had an inguinal hernia first spotted in the 1990s, which apparently subsided. When it reappeared in the identical spot in 2011, he complained that it was extremely painful. He claimed that the prison medical personnel ignored his complaints and delayed giving him hernia-repair surgery. Instead they allegedly repeatedly forced him to fruitlessly push the herniated tissue back into his abdominal cavity. Finally, in 2014, he received a successful surgical procedure.

In his lawsuit claiming deliberate indifference to his serious medical needs, the trial court dismissed one defendant doctor on statute of limitations grounds and ultimately dismissed the case against the other defendants. A federal appeals court reversed with respect to one defendant, another doctor. Construing the disputed facts in the plaintiff’s favor, the court ruled, a reasonable jury could believe the prisoner’s testimony over the doctor’s insistence that his notes were complete, and could conclude that the doctor not only learned of the painful hernia in January 2013, but also explicitly refused to hear potentially relevant medical details and was “dismissive” about the pain involved. Wilson v. Wexford Health Sources, Inc., #18-2499, 2019 U.S. App. Lexis 22350, 2019 WL 3369100 (7th Cir.).

A prisoner who developed nasal polyps sued because the prison medical staff refused to authorize surgery, which he claimed was the only effective remedy. The trial court dismissed the case with prejudice as a sanction for the prisoner refusing to testify in a deposition conducted by one of the defendants. He claimed not to have received prior notice of the deposition, so he refused to be sworn or to answer questions.

A federal appeals court overturned the dismissal. It stated that while dismissal is sometimes the right sanction for a discovery violation, it is one of the harshest sanctions a court can use. Courts must be very careful before taking that step. If a party appears for his deposition (as he did here, as the facility took him there) but refuses to cooperate, the right procedure is to obtain a court order, directing him to be sworn and testify. Further, the prisoner was entitled at least to actual notice of the deposition. Evans v. Griffin, #17-1957, 2019 U.S. App. Lexis 23593, 2019 WL 3720917 (7th Cir.).

Medical Care: Mental Health

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

A federal appeals court overturned summary judgment for a defendant prison nurse on a prisoner’s claim that her conduct in the wake of his mental health crisis amounted to cruel and unusual punishment. Specifically, he claimed that she taunted him for failed suicide attempts and encouraged him to “try again.” The court ruled that the Eighth Amendment can apply to an extreme case where medical staff members use an inmate’s known psychological vulnerability to cause psychological anguish. Lisle v. Welborn, #18-1595, 2019 U.S. App. Lexis 23043, 2019 WL 3492163 (7th Cir.).

A prisoner sued a correctional officer, her supervisor, and the warden, asserting that the officer’s actions violated the Eighth Amendment prohibition of cruel and unusual punishment. He claimed that he suffered from PTSD, and asked the officer not to stand directly behind him so as to not trigger his symptoms, but she repeatedly refused to do so. Overturning a denial of qualified immunity to the defendants, a federal appeals court found that it did not violate clearly established constitutional law for non-medical correctional staff to refuse to provide a prisoner with what amounted to a medical accommodation that had not been ordered by medical staff. The need for that accommodation, the court stated, was not obvious to a layperson. Leiser v. Kloth, #17-3378, 2019 U.S. App. Lexis 23043, 2019 WL 3492163 (7th Cir.).

Sex Offenders

A federal law, the Sex Offender Registration and Notification Act (SORNA), enacted to combat sex crimes and crimes against children, requires a broad range of sex offenders to register and imposes criminal penalties for failure to do so. One provision of the law provides that the U.S. Attorney General has authority to decide whether the registration requirements apply to offenders convicted of crimes before SORNA was enacted and to specify rules for their registration if so required. The Attorney General issued a rule specifying that the registration requirements apply in full to pre-SORNA offenders.

A federal appeals court rejected a claim by a pre-SORNA offender that this provision of the law unconstitutionally delegated legislative power to the Attorney General. The U.S. Supreme Court upheld this ruling. Four justices found no violation of the nondelegation doctrine, and one other justice concurred in the decision, although with separate reasoning. Congress can give “substantial discretion” to executive agencies to implement and enforce the laws as long as it specifies an “intelligible principle” to which the person or body authorized to act is required to follow. The Supreme Court had already interpreted the law as requiring the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible. To “specify the applicability,” the Court ruled, did not mean “specify whether to apply SORNA” to pre-Act offenders but rather “specify how to apply SORNA” to pre-Act offenders. This delegation of authority was found to fall within constitutional bounds. Gundy v. United States, #17-6086, 138 S. Ct. 2116, 2019 U.S. Lexis 4183, 2019 WL 2527473.