AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for Jails, Prisons and Detention Facilities
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Monthly Law Journal Article: Prisoners
and Sexually Explicit Materials, 2010
(2) AELE Mo. L. J. 301.
Monthly Law Journal Article: Retaliation Against Prisoners for Protected First Amendment Expression, 2010 (3) AELE Mo. L. J. 301.
A federal trial
court has struck down as unconstitutional, in violation of the First Amendment,
a Pennsylvania law, the Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304,
which authorized the state's Attorney General, local prosecutors, and the
victims (including families) of personal injury crimes to bring civil actions
seeking to enjoin conduct by an offender "which perpetuates the continuing
effect of the crime on the victim," as well as recover attorneys'
fees. The law was enacted in response to a college's selection of plaintiff
Mumia Abu-Jamal, convicted of the murder of a police officer, as its commencement
speaker. The speech was delivered via a recording. "The court concludes
that the challenged statute betrays several constitutional requirements;
the enactment is unlawfully purposed, vaguely executed, and patently overbroad
in scope. However well-intentioned its legislative efforts, the General
Assembly fell woefully short of the mark. The result is a law that is manifestly
unconstitutional, both facially and as applied to plaintiffs." The
enforcement of the statute was enjoined. Abu Jamal v. Kane, #1:14-cv-2148,
2015 U.S. Dist. Lexis 55250, 43 Media L. Rep. (BNA) 1679 (M.D. Pa.).
Prisoners on death row in Missouri challenged the constitutionality of the state's lethal-injection protocol, which was altered to use a single drug rather than a combination of three (an anesthetic, a paralyzing agent, and a drug to stop the heart) when the first drug became unavailable. While the challenge was pending, the protocol was revised from the drug propofol to compounded pentobarbital, and the plaintiffs amended their complaint to allege that the new drug constituted cruel and unusual punishment and that the defendants were deliberately indifferent to their medical need for their executions not to inflict gratuitous pain. The plaintiffs failed to meet their burden of showing that the use of the drug rose to the level of "sure or very likely" to cause serious harm or severe pain. They also failed to show that they had a First Amendment right to disclosure of information about the identities of the pharmacy that compounds the drug and its suppliers. Zink v. Lombardi, #14-2220, 2015 U.S. App. Lexis 3550 (8th Cir.).
A federal trial court has declined to dismiss a lawsuit filed by the ACLU, other advocacy groups, journalists, and a prisoner incarcerated for the murder of a police officer as well as four other prisoners, challenging the constitutionality of a Pennsylvania law, the Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304, which authorizes the state's Attorney General, local prosecutors, and the victims (including families) of personal injury crimes to bring civil actions seeking to enjoin conduct by an offender "which perpetuates the continuing effect of the crime on the victim," as well as recover attorneys' fees. The law was enacted in response to a college's selection of plaintiff Mumia Abu-Jamal, convicted of the murder of a police officer, as its commencement speaker. The speech was delivered via a recording. The lawsuit asserts that the statute violates the First Amendment rights of offenders, as well as of others to hear their speech. The court ruled that the plaintiffs have standing to sue the state Attorney General, as she had not said that she would not seek to enforce the law, making it credible that it might be applied against some of the plaintiffs. A District Attorney who stated that he would not seek to enforce the statute pending a court determination of its constitutionality, however, was dismissed as a defendant. Abu Jamal v. Kane, #1:14-cv-2148, 2015 U.S. Dist. Lexis 27633 (M.D. Pa.).
A prisoner claimed that he had been granted parole but that it was rescinded because he was facing pending disciplinary charges and had been placed in a restrictive housing unit as a result. He claimed that these actions were retaliatory for having filed a grievance against an officer. These actions did not violate his due process rights because the misconduct determinations, his time placed in the restrictive housing unit, and his parole recission, did not, either alone or in combination, create an atypical and significant hardship in relation to the ordinary incidents of prison life. But the prisoner did adequately allege a retaliation claim against a particular officer by claiming that when he refused to confess to a particular charge and instead filed a grievance against this officer, he was placed in administrative custody in retaliation. Fantone v. Latini, #13-3611, 2015 U.S. App. Lexis 2470 (3rd Cir.).
The wife of an inmate claimed that her visitation privileges with him were terminated in retaliation for her exercising her First Amendment rights by engaging in public protests asserting that the Department of Corrections was violating the rights of her husband and other prisoners then on a hunger strike. While a reasonable jury could find that the motivation for the termination, in part, might have been to retaliate for her role in the protests, it was also motivated by legitimate concerns about the security and safety of inmates and staff members. The defendant officials were entitled to qualified immunity for both the period of time during the hunger strike and after it ended, as the decision to terminate visitation rights was made while the hunger strike was ongoing and was lawful when it was made. Jackson v. Humphrey, #14-10183, 2015 U.S. App. Lexis 469 (11th Cir.).
A federal prisoner filed a lawsuit claiming that he had been placed in administrative detention for 60 days in unlawful retaliation in violation of the First Amendment for filing a claim under the Federal Tort Claims Act (FTCA), as well as a claim of failure to protect in violation of the Eighth Amendment based on an assault on him by another prisoner. The trial court granted summary judgment for the defendants, based on the plaintiff's alleged failure to exhaust available administrative remedies before suing, as required by the Prison Litigation Reform Act, 42 U.S.C. 1997e(a), as well as a ruling that the plaintiff's Eighth Amendment claim was barred by his decision to file a FTCA claim regarding the assault. A federal appeals court vacated the trial court's ruling, holding that the failure to exhaust available administrative remedies should be excused because of specific allegations that one of the defendants intimidated him from pursuing a grievance by a threat to transfer him to another facility where she said he would be attacked and placing him in a special housing unit after he filed his FTCA claim, and that the FTCA claim did not bar the Eighth Amendment claim because the FTCA claim was dismissed by the trial court for lack of subject matter jurisdiction and there was no judgment on the claim. Himmelreich v. Fed. Bureau of Prisons, #13-4212, 766 F.3d 576 (6th Cir. 2014).
A man civilly committed as a sexually violent person and residing in a Treatment and Detention Center claimed that his First Amendment rights to free speech were unreasonably restricted when he was denied access to certain video games and movies, specifically unrated media. Rejecting this claim, an intermediate state appeals court found that the defendant Center had legitimate security and rehabilitative interests in promoting a therapeutic environment and that this interest was promoted by barring the plaintiff's access to games or movies that could encourage antisocial behavior or sexual deviance. Schloss v. Jumper, 2014 IL App (4th) 121086, 2014 Ill. App. Lexis 379.
A prosecutor filed felony charges against a correctional officer who took his cell phone inside a facility in violation of departmental policies and Illinois law, making 30 calls from work. Another officer spread the news of this to fellow employees. A casework supervisor called the prosecutor, urging him to drop the charges and let the matter be handled in the employee disciplinary process. Internal affairs learned of this and investigated the supervisor, who was reprimanded and suspended for five days. He sued, claiming he was subjected to unlawful retaliation for protected speech. A federal appeals court upheld a ruling that the defendants were entitled to qualified immunity from liability as no clearly established rights were violated. Further, the plaintiff had not proven his case as a matter of law. His speech was not constitutionally protected since the interests in maintaining workplace order and security outweighed the plaintiff's interests in expressing his opinion on a work-related prosecution. Volkman v. Ryker, #12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).
Two Pennsylvania newspapers sued seeking expanded access to prisoner executions. They asserted that various restrictions on access imposed by correctional officials violated the First Amendment right to report on matters of public interest. A settlement was reached allowing witnesses, such as reporters, to see and hear inside the execution chamber from the moment the prisoner enters until the time he or she is declared dead. The settlement serves the right of officials to turn off the sound system if the inmate attempts to make malicious or threatening remarks aimed at the witnesses. The Philadelphia Inquirer v. Wetzel, #12-cv-01817, U.S. Dist Ct. (M.D. Pa. Oct. 18, 2013).
A man civilly committed as a sexually violent person claimed that the facility's director violated his First Amendment freedom by enforcing a policy limiting all residents from copying a newsletter he had produced that was critical of conditions, policies, and personnel at the facility and which he claimed had previously had a disruptive effect. After the litigation had begun, but before the trial court granted summary judgment for th defendant director, a new and stricter policy was adopted. The federal appeals court vacated the ruling, holding that the trial court should consider the constitutionality of the revised policy along with the previous one, to avoid "piecemeal adjudication." Pesci v. Budz, #12-11144, 2013 U.S. App. Lexis 19446 (11th Cir.).
Summary judgment was properly granted for a defendant prison official on a prisoner's unlawful retaliation claim. The prisoner's action in serving the prison official with a lawsuit summons and complaint on behalf of another prisoner was not constitutionally protected activity either on the basis of the right of access to the courts or the First Amendment. Blaisdell v. Frappiea, #10-16845, 2013 U.S. App. Lexis18782 (9th Cir.).
A prisoner claimed that he had been disciplined in retaliation for writing a letter to fellow inmates asking them to work together in support of his class action lawsuit against prison administrators. He claimed that this violated his First and Fourteenth Amendment rights. Summary judgment was entered for the defendants on the First Amendment claims but summary judgment was entered for the prisoner on a due process claim. After a jury trial on damages at which the prisoner was awarded nominal and punitive damages, the parties reached a settlement providing that the prisoner would receive $11,000, plus attorneys' fees and costs. The prisoner then attempted to appeal the summary judgment against him on the First Amendment claim. The appeals court ruled that this issue was barred by the settlement agreement. Jones v. McDaniel, #10-16658, 2013 U.S. App. Lexis 11676 (9th Cir.).
An intermediate California appeals court ruled that a prisoner had a First Amendment right to read a sexy violent werewolf thriller novel about a woman named Iris who kills werewolves every time there is a full moon, but then falls in love with one and is designated by a group of witches as the "chosen one," destined to save humanity. Prison officials had confiscated the novel, "The Silver Crown" by Mathilde Madden, (not to be confused with the same author's "The Silver Collar") as contraband. The appeals court judges reviewed the full 265 pages of the book and gave a two-page detailed plot summary. Rejecting the determination that the book was obscene and could be barred, the court relied on an expert witness university professor that the book had literary value. The judges also rejected the argument that the violence in the book was likely to incite prison violence, finding that it was no more violent than nightly television programming prisoners were allowed to watch or another book already in the prison library. In re Andres Martinez, #A134400, 2013 Cal. App. Lexis 430.
A federal district court judge ruled that a county jail that adopted a rule that restricted incoming and outgoing personal inmate mail to only postcards was unconstitutional under the First Amendment. The court ruled that it violated the rights of the inmates themselves, individuals who write to them, and the publishers of the Prison Legal News publication. The interest in keeping contraband out of the facility and reducing costs in screening mail did not outweigh the free speech rights involved. Prison Legal News v. Columbia County, #3:12-cv-00071, 2013 U.S. Dist. Lexis 58669 (D. Ore.).
A federal trial court has struck down a Nebraska state law barring registered sex offenders from using the Internet for most purposes, including social media. The court said that by severely limiting "even benign" uses of the Internet, the law raised First Amendment, due process, Fourth Amendment and ex post facto issues. The law, the judge found, did not leave open ample alternative channels for communication of information. A portion of the statute that applied to those registered as sex offenders but who were not on probation, parole, or court monitored supervision violated the Fourth Amendment. The court said the law wrongly bars offenders "from using an enormous portion of the Internet to engage inexpressive activity." and "potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors." Further, the law "is not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services. The risk posited by the statute is far too speculative when judged against the First Amendment." Doe v. State of Nebraska, #8:09CV456, 2012 U.S. Dist. Lexis 148770 (D. Neb).
A prisoner checked two books out of a prison library and also was permitted to purchase one book. Each of these books had the text of the "Ten-Point Program" of the Black Panther Party from the 1960s. After the prisoner copied the points of the program out on a sheet of paper, which was spotted by an officer, he was given 90 days in segregation for possession of gang literature, based especially on Point 9of the program calling for "freedom for all Black men" in prisons and jails. A federal appeals court rejected his First Amendment claim. While the prisoner argued that the "Ten-Point Program" could not be the basis for a security concern because it was already in books allowed in the prison library and allowed for prisoners to purchase, the court noted that prison librarians "cannot be required to read every word of every book to which inmates might have access to make sure the book contains no incendiary material." Even if a librarian had decided that a book containing the material did not, as a whole, constitute gang literature, that would not have barred a disciplinary proceeding against a prisoner who copied incendiary passages from it. The belief by prison officials that the prisoner could use the Ten-Point Program to enlist a prison gang was not so implausible that it could be dismissed as groundless. The program could be viewed by prison officials as an incitement to violence by black prisoners. The court did, however, order further proceedings on the prisoner's claim that his due process rights were violated by the fact that prison officials failed to notify prisoners that they were not to copy certain passages from books they checked out from the library or were allowed to buy. Toston v. Thurmer, #11-3914, 2012 U.S. App. Lexis 15966 (7th Cir.).
Prisoners convicted of sex crimes were kept incarcerated long after their sentences ended, remaining in state custody as sexually violent civil detainees. They claimed that their civil rights were violated because they were denied the ability to have face to face social opportunities with civil detainees in other pods of their facility and because they were not allowed to contact other civilly committed detainees using the facility's own internal mail system, instead being required to use the U.S. mail for that purpose. The limits on direct socialization were justified as a security measure. Due process did not require input from health professionals before restrictions were put on the in-person association opportunities of the detainees. There was no violation of First Amendment rights in requiring the plaintiffs to use the U.S. mail rather than the facility's internal mail system to communicate with other civil detainees. Lane v. Williams, #11-3373, 2012 U.S. App. Lexis 17922 (7th Cir.).
A prisoner convicted of terrorism-related crimes involving the 1998 bombing of the U.S. embassy in Kenya was subjected to special administrative measures forbidding him from receiving two Arabic language newspapers he had previously received and prohibiting him from corresponding with his nieces and nephews. A federal appeals court rejected a claim that these measures violated his First Amendment rights. The government's interestin restricting his rights was reasonably related to legitimate penological interests, and the prisoner had the burden of showing that there was no legitimate, rational basis for the increased communication restrictions. Given the belief that the prisoner had a "proclivity for violence" based on his conviction for acts of terrorism, the warden expressed the concern that “communications or contacts with persons could result in death or serious bodily injury to persons.” This was a rational basis for the restrictions. The restriction on the Arabic newspaper was similarly upheld as justified by the need to prevent him from receiving information and instructions in a manner difficult to detect. Al-Owhali v. Holder, #11-1274, 2012 U.S. App. Lexis 16401 (10th Cir.).
Correctional employees' actions in refusing to let prisoners receive five books that a non-profit corporation wished to distribute to them did not violate the First Amendment or due process. The books were properly banned as unacceptable based on discussions of racial conflicts in prisons and graphic descriptions of prison rape. The plaintiff failed to show that the policy under which these books were barred had no reasonable relationship to legitimate governmental objectives. Prison Legal News v. Livingston, #11-40128, 2012 U.S. App. Lexis 11108 (5th Cir.). Editor's note: The books rejected were Prison Masculinities, Don Sabo, et al., eds., (2001); The Perpetual Prison Machine: How America Profits from Crime, Joel Dyer (1999); Lockdown America: Police and Prisons in the Age of Crisis, Christian Parenti (2000); Soledad Brother: The Prison Letters of George Jackson, George Jackson (1970); and Women Behind Bars: The Crisis of Women in the U.S. Prison System, Silja J.A. Talvi (2007).
A prisoner not involved in a fight between two other inmates claimed he struck in the arm by a shotgun pellet fired by a guard was a nearby catwalk. He allegedly had to wait four days for medical attention, suffering significant pain in the interim. Right after the incident, a medical aide allegedly assured him that she would go and get medication and medical supplies for him, but did not return with it. He asserted a valid claim for excessive use of force, as there was sufficient evidence to support an inference that an officer acted maliciously in using deadly force against prisoners not involved in the fight. The delay in treatment supported a claim for deliberate indifference to a serious medical need. Claims against one officer concerning medical care were properly dismissed, as he summoned medical assistance as soon as he became aware of the prisoner's injury. The prisoner also stated a valid First Amendment claim, based on his assertion that he was transferred to another facility in retaliation for threatening to bring a grievance over the incident. Gomez v. Randle, #11-2962, 2012 U.S. App. Lexis 9656 (7th Cir.).
A prisoner sued correctional officers, claiming that they retaliated against him in violation of his First Amendment rights, transferring him to a higher security level facility because he participated in a class action lawsuit in state court on inmate property issues and aided other prisoners in filing grievances. The inmate's actions constituted protected activities, and were followed by an adverse event, his transfer. A federal appeals court upheld a trial court judgment in favor of two defendants found not to have engaged in unlawful retaliation but ordered further proceedings as to three other defendants to determine if they did. There was evidence that these three had been involved in the decision to make the transfer and may have been motivated by retaliatory motives. They had not adequately shown that they would have ordered the transfer in any event because of the inmate's "disruptive" behavior, as the record was devoid of any evidence of such behavior other than the protected activities and a memo written by a defendant whose bias was evident from her "acts of instructing other officers to fabricate misconduct tickets against him." The other two remaining defendants did not claim to have read that memo. King v. Zamiara, #09–2469, 2012 U.S. App. Lexis 10240, 2012 Fed. App. 146P (6th Cir.).
A man who completed his sentence for multiple sexual crimes against children was then civilly committed. The staff at the psychiatric facility to which he was sent seized CDs and DVDs numbering in the hundreds from him, and he claimed that they took too long before returning them after screening them for possible sexually explicit material, in violation of his First and Fourth Amendment rights. Staff members were entitled to qualified immunity from liability, since it was objectively reasonable to believe that their actions were legal. The interest of the state in security, order and treatment of the plaintiff outweighed any property interest the plaintiff had in quickly getting back his things or receiving a detailed explanation at the time of the seizure. The court also rejected the plaintiff's claim that some of his incoming non-legal mail was withheld. He had not shown that it was withheld without justification, and there was a strong interest in preventing him from obtaining inappropriate images which outweighed his weak interest in immediately receiving commercial mail seized for screening. Ahlers v. Rabinowitz, #10-1193, 2012 U.S. App. Lexis 7035 (2nd Cir.).
A prison did not violate the First Amendment, Eighth Amendment, or Fourteenth Amendment rights of a prisoner suffering from chronic medical conditions by refusing to permit him to possess copies of the books "Physician's Desk Reference," and "the Complete Guide to Drugs." While the prisoner argued that he should be allowed to have these books to learn about possible side effects to medications he was prescribed for his medical problems, it was reasonable to limit prisoner access to books about drugs. Munson v. Gaetz, # 11–1532, 2012 U.S. App. Lexis 4960 (7th Cir.).
Any humiliation which an inmate suffered when a correctional officer laughed and brushed his thigh against the inmate's while he was sitting on the toilet in his cell rather than leaving, was insufficient for an Eighth Amendment violation. The prisoner's claims, however, that officers threatened to hit him, to not bring him breakfast, and filed a false disciplinary charge against him, stated valid First Amendment retaliation claims if done because of his filing of various grievances. A retaliation claim was also adequately stated against a warden who allegedly was motivated by the prisoner's grievances to lie about him so that his parole would be denied. Watison v. Carter, #10–16778, 2012 U.S. App. Lexis 2818 (9th Cir.).
A prisoner sued over the allegedly excessive fees charged by a company providing telephone services to prisoners at a facility. The phone provider paid the prison 45% of the gross revenues provided. The federal appeals court ruled that the prison had no First Amendment obligation to provide any telephone services at all, and also had no obligation to do so at any "particular cost to users." Holloway v. Magness, #11–1455, 2012 U.S. App. Lexis 1961, (8th Cir.).
A Florida administrative regulation that prohibited prisoners from soliciting for pen pals did not violate the First Amendment and was reasonable. It was adopted for the legitimate purpose of preventing prisoners from making use of pen pal solicitation services to commit fraud. The rule did not prohibit prisoners from corresponding with a pen pal, but merely from advertising to solicit obtaining one. Florida prison officials permit one pen pal service to operate in its facilities because it does one-to-one matching between prisoners and non-prisoner pen pals, rather than circulating lists of prisoners and non-prisoners available as pen pals. This was believed to decrease the likelihood of scams "because an inmate does not receive a list with numerous individuals’ names, addresses, and contact information." Perry v. Department of Corrections, #11-10694, 2011 U.S. App. Lexis 25561 (11th Cir.).
A prisoner was not allowed to go to his plumbing crew work assignment, and was told that he fit the profile of an escape risk. He was further told, however, that he had not lost his job, but would be allowed to return to it after certain additional security precautions were in place. After he filed a grievance challenging his classification as an escape risk, he was terminated from his job. Given the sequence of events, he stated a viable claim that he was fired in retaliation for filing the grievance in violation of his First Amendment rights. Milligan v. Archuleta, #11-1218, 659 F.3d 1294 (10th Cir. 2011).
Wisconsin prison officials did not violate the First Amendment in preventing inmates from receiving copies of "The New Abolitionist," (subsequently renamed Wisconsin Prison Watch), a prison reform newsletter mailed to them, since the record showed that they could properly conclude that it contained "misleading information, encourages distrust of prison staff, and could potentially undermine the prison's rehabilitative initiatives." The plaintiffs failed to show that classifying the publication as harmful was unreasonable. Van Den Bosch v. Raemisch, #09-4112, 2011 U.S. App. Lexis 19031 (7th Cir.).
A prison education director had an inmate fired from his job as a clerk in the prison library. The prisoner subsequently filed a grievance against the education director, who filed a misconduct report against the prisoner a day later concerning the incident that led to the firing. Based on the timing of the misconduct report, as well as its "threadbare" nature, the prisoner stated a triable claim of unlawful retaliation in violation of his First Amendment rights against the education director. Greene v. Doruff, #10-3497, 2011 U.S. App. Lexis 20597 (7th Cir.)
A prison's prohibition on inmates advertising for pen pals or receiving information from publications and websites that publish such ads did not violate their rights under the First Amendment. The regulation was reasonably related to a legitimate objective of preventing inmates from committing fraud through the mail. Woods v. Commissioner of the Indiana Dept. of Corrections, #10-3339, 2011 U.S. App. Lexis 14732 (7th Cir.).
Prison personnel might be liable to a prisoner for violating his First Amendment rights by prohibiting him from receiving mail containing a comic book deemed too violent in its depicted story. While material that might incite violence may be screened out, the prisoner asserted that the comic book in question did no such thing. He noted that the comic book depicted stories that Japanese children watch on television, and argued that the prison allows other publications depicting violence, including wrestling, boxing, karate, and gun magazines. Kaden v. Slykhuis, #10-2751, 2011 U.S. App. Lexis 17747 (8th Cir.).
A prisoner was entitled to proceed with his claim that he was transferred to a restricted housing unit by a captain in retaliation for his First Amendment-protected activity of filing a grievance concerning a disciplinary charge the captain filed against him. There was evidence that the captain justified the transfer by claiming to have information that the prisoner was somehow responsible for a fight between other prisoners, but his failure to similarly transfer two prisoners known to have been involved in the fight supported the claim of a retaliatory motive. Washington-El v. DiGuglielmo, #10-2462, 2011 U.S. App. Lexis 5857 (Unpub. 3rd Cir.).
A "jailhouse lawyer" who claimed that he was transferred to an out-of-state prison in retaliation for his activities on behalf of other prisoners and for pursuing his own grievances failed to show that there was a causal relationship between these admittedly protected activities and his transfer. Instead, there was evidence that the transfer elsewhere was the result of the prisoner having accumulated a number of "separations," which the court characterized as "a term used to indicate the existence of a placement conflict counseling against assignment of one inmate to the same institution as another inmate or staff member." Hannon v. Beard, #10-1792, 2011 U.S. App. Lexis 11549 (1st Cir.).
An African-American prisoner in Michigan claimed that, after his transfer to a new facility, he encountered a correctional officer who remembered him from the first prison as a "litigant," and who allegedly subjected him to body searches, threats implying the possible use of physical violence, and racial epithets. A federal appeals court found that the prisoner alleged facts sufficient to create a genuine issue of fact as to whether he had been subjected to unlawful retaliation for his role in the litigation at his former facility, even though the officer who allegedly threatened him had not been a defendant in that lawsuit. Reynolds-Bey v. Spicer, #09-1472, 2011 U.S. App. Lexis 7660 (Unpub. 6th Cir.).
While there was evidence that the plaintiff prisoner had asthma, the record did not support his argument that his level of exposure to environmental tobacco smoke (ETS) in Michigan state prisons amounted to a serious threat to his health in violation of the Eighth Amendment, as opposed to "mere discomfort." His asthma was "relatively minor," and could be managed through the use of an inhaler and other medication. There also was insufficient evidence to support his claim that he was transferred to another facility, with allegedly worse ETS, in retaliation for complaining about ETS. Jones v. Caruso, #10-1515, 2011 U.S. App. Lexis 8729; (Unpub. 6th Cir.).
Upholding a jury's rejection of a prisoner's lawsuit banning his receipt of certain gift publications, a federal appeals court ruled that there was evidence from which the jury could find that that the private prison's policy was necessary to promote security and administrative interests. The jury was properly instructed that prisoners have a First Amendment right to receive mail and gift publications, but that a policy barring receipt of some such publications could be legal if reasonably related to legitimate penological or correctional goals. Blaisdell v. Corr. Corp. of Am., #09-17795, 2011 U.S. App. Lexis 7600 (Unpub. 9th Cir.).
Trial court did not act improperly in dismissing prisoner's lawsuit claiming that prison officials failed to process his grievances and were deliberately indifferent to his serious medical needs, as well as failing to protect him against assault by other prisoners. The prisoner failed to exhaust his administrative remedies by filing a timely grievance regarding his medical care, and failed to present any evidence that guards were aware of any specific threats to him by other prisoners. His First Amendment claim concerning the defendants' forcible termination of his hunger strike was properly rejected since he had no First Amendment right to refuse medical treatment intended to save his life. Owens v. Hinsley, #09-3618, 2011 U.S. App. Lexis 5360 (7th Cir.).
A Wisconsin prisoner was denied receipt of a three-volume set of law books that he ordered through the mail and which cost $110. A prison rule restricted the receipt of any one item of property to a value of $75. The prisoner argued that the set constituted three items, each of which cost less than $75. A federal appeals court rejected the claim that denying him receipt of the set violated his First Amendment rights. Some defendants were not personally involved in the decision to withhold the books, while others were protected by qualified immunity, as the inmate had no clearly established right to receive the materials in violation of a rule about the monetary value of property received. Hohol v. Jess, #10-1280, 2011 U.S. App. Lexis 6138 (Unpub. 7th Cir.).
A prisoner claimed that he was denied medical treatment for his diabetes and Hepatitis C in retaliation for engaging in protected First Amendment activity of speaking out about prison health needs and seeking access to the courts. His complaint was dismissed under the "three strikes" provision of the Prison Litigation Reform Act. Reversing, a federal appeals court held that his claim fell within an "imminent danger" exception to the three strikes rule, since he claimed that he was still receiving improper care for retaliatory reasons. Vandiver v. Vasbinder, #08-2602, 2011 U.S. App. Lexis 6325 (Unpub. 6th Cir.).
An Arizona prisoner claimed that the confiscation of certain books violated his First Amendment and due process property rights. Rejecting these claims, a federal appeals court found that there was no viable due process claim as the loss of the property, while intentional, was "random and unauthorized." Additionally, he was offered a settlement amount for their loss, and his dissatisfaction with the amount did not render the post-deprivation remedy inadequate, since he could have filed suit in state court. The First Amendment claim was properly rejected as the confiscation of the books, besides being random and unauthorized, was not based on their content. The state Department of Corrections was entitled to Eleventh Amendment immunity from liability. Skinner v. Ariz. Dept. of Corrections, #09-16848, 2010 U.S. App. Lexis 21152 (Unpub. 9th Cir.).
A prisoner claimed that officials retaliated against him for filing grievances by placing him in administrative lockdown. The appeals court noted that an inmate is not required to show the favorable outcome of a disciplinary case if he is alleging a retaliation claim. As a result, the trial court abused its discretion in dismissing the claim as barred because the disciplinary conviction had not been reversed or otherwise set aside. The trial court also failed to address claims that the conditions in lockdown violated the Eighth Amendment, which also were not barred on that basis. Muse v. Sheriff's Dept., Ouachita Parish, #10-30521, 2010 U.S. App. Lexis 25953 (Unpub. 5th Cir.).
A prisoner housed in a cell with a window claimed that an officer refused, on five separate occasions, to turn on the lights in his cell at 7 a.m. as required by department policy, depriving him of artificial lighting in his cell during daylight hours for a total of eight hours over a seven-month period. After he filed grievances against the officer for this, the officer allegedly retaliated by calling the prisoner a "snitch" in front of other inmates, and filed a false disciplinary report against him. A federal appeals court found that the trial court erroneously dismissed the retaliation claim because the prisoner was not actually disciplined, as the retaliatory filing of false disciplinary charges is enough to be the basis for a retaliation claim. Falsely labeling the plaintiff a "snitch" in front of other prisoners could subject him to the risk of substantial harm at the hands of other prisoners, and supported both First Amendment and Eighth Amendment claims. Claims concerning the failure to turn on cell lights, which the prisoner claimed impeded his ability to do legal work, in violation of his First Amendment rights, were rejected. Williams v, Horner, #09-2927, 2010 U.S. App. Lexis 24463 (Unpub. 8th Cir.). Editor's note: A judge dissenting in part argued that the majority, in allowing the pursuit of the retaliation claim merely on the basis of a retaliatory filing of false disciplinary charges failed to impose a necessary condition that the retaliatory action be one that would chill a person of ordinary firmness from exercising his First Amendment rights, and noted that in this case, the warden dismissed the disciplinary charge against the prisoner.
A prisoner's claim that he was compelled to work outdoors uprooting tree stumps in freezing cold weather without safety instructions, protective gear, or gloves was sufficient to state a claim for violation of the Eighth Amendment, requiring the reversal of the trial court's dismissal of the lawsuit. The court also reinstated the prisoner's claim that he was penalized for questioning the work assignment and making preparations to sue, in violation of his First Amendment rights. Smith v. Peters, #10-1013, 2011 U.S. App. Lexis 955 (7th Cir.).
A detainee at a county jail claimed that a shift commander violated his First and Fourteenth Amendment rights by "threatening him." He had asked why the jail was on lockdown, and the shift commander allegedly said, "Top Secret, if I told you, I'd have to kill you." The prisoner claimed that this statement was not in jest, and that he feared for his life. When he filed a grievance concerning the incident, he was allegedly confronted by the shift commander, who accused him of trying to ruin her career, and warned him that she could make his stay "very uncomfortable" if he did not "back off." Instead of relenting, he filed a second grievance. He had no further contact with the shift commander, and suffered no adverse consequences. Upholding summary judgment for the defendant in the detainee's lawsuit, a federal appeals court found that the trial court properly determined that the shift commander's alleged "isolated comments, uncoupled from any adverse action, could not have deterred a reasonable person from exercising his First Amendment rights." Foster v. Powell, #09-2070, 2010 U.S. App. Lexis 24572 (Unpub. 7th Cir.).
A federal appeals court reinstated a federal prisoner's civil rights lawsuit over his transfer to a lock-down unit in another prison, since his claim that prison staff were being abusive in retaliation for his protected conduct of filing grievances was "at least plausible," and therefore should not have been dismissed as frivolous. Transfer to a more restrictive environment with fewer privileges would deter a "person of ordinary firmness" from exercising his right to file grievances, so the plaintiff adequately alleged that the transfer was retaliatory, and violated his First Amendment rights. Hill v. Lappin, #09-5575, 2010 U.S. App. Lexis 26261 (6th Cir.).
A prisoner transferred to a new facility filed "numerous formal grievances" concerning the conditions of his confinement, as well as grievances concerning the denials of those grievances. Finally, he filed a civil rights lawsuit against sixteen correctional employees, claiming that they had engaged in unlawful retaliation against him for protected conduct, such as pursuing his grievances and a prior lawsuit. The retaliation allegedly consisted of denying him proper housing, denying him the non-smoking, compatible cellmates he requested, failing to properly investigate or adjudicate his grievances, failing to provide him with required program services, and failing to provide institutional support for a favorable parole recommendation. He later added claims that one defendant also retaliated against him by firing him from inmate employment, preventing him from receiving outside work clearance, denying him access to mandatory program services, and having his typewriter improperly confiscated. Upholding summary judgment for the defendants, a federal appeals court found that the prisoner had failed to produce any evidence, beyond his "bare assertions," that any of the adverse actions taken against him were the result of unlawful retaliation. The denials of housing and cellmate requests, in particular, were found to be based on legitimate penological reasons. The prisoner was, in fact, transferred to a non-smoking unit, but was unsatisfied because some prisoners were violating the policy by sneaking cigarettes in. His two requests, that he be moved away from harassing cellmates and housed in a non-smoking unit, were essentially granted. The mere failure to allow the plaintiff to choose his own cellmates was not an action adverse enough to deter a person of ordinary firmness from exercising his constitutional rights. The denial of support for the prisoner's parole was based on his failure to fully accept responsibility for his crime, which involved traveling across state lines to have sexual relations with an underage girl. His termination from a job as a prison janitor occurred after his prior job as a "block runner" was discontinued, and was based on a poor performance evaluation and inappropriate demeanor. The prisoner himself expressed his wish not to be a janitor, and at one point refused to work. All other claims were similarly rejected, and in some instances, such as the confiscation of the typewriter, the prisoner failed to show that the individual named as the responsible defendant was actually involved in the action. Alexander v. Fritch, #10-2173, 2010 U.S. App. Lexis 20679 (Unpub. 3rd Cir.).
A Wisconsin inmate claimed that his First Amendment rights were violated by a prison policy denying prisoners access to commercially produced photos, and limiting to 50 the number of photos inmates may possess, as well as by prison officials' actions in not delivering to him a number of photos that he claimed were not within the definition of prohibited pornography, although they were "risque." A Wisconsin appeals court found that defendant officials were entitled to qualified immunity, as the prisoner had no clearly established constitutional right to receive commercially sold photos, or to possess in excess of 50 photos. The prison had a legitimate interest in conserving staff resources that would be needed to screen such photos, and there were alternate ways of prisoners seeing such things as celebrity photos, such as in magazine subscriptions. Examining the particular photos withheld, the court also concluded that the majority were properly withheld under rules prohibiting material that is pornographic or features nudity. Four photos, however, were improperly withheld under the pornography ban, prior to the ban on commercial photos being adopted, as they were found to be mere "swimsuit" pictures in which the swimsuits fully covered each model's pubic area, and areola. But because the swimsuits were "skimpy," and composed of thin fabric, and the models were provocatively posed, they came "so close" to pornography and nudity that a prison official might reasonably come "to a different conclusion" when reviewing them, so the individual defendants were also entitled to qualified immunity on this claim. Lacy v. Huibregtse, #2008AP1870, 2010 Wisc. App. Lexis 568 (Unpub. 4th Dist.).
The majority of a three-judge federal appeals panel rejected a prisoner's claim that a correctional employee had him transferred to a higher-level security facility in unlawful retaliation for having filed prison grievances, They agreed that filing such grievances constituted constitutionally protected activity, but found that the prisoner's assertions that the employee had "confronted" him about one such grievance was insufficient to show a cause and effect relationship between the filing of the grievance and the subsequent transfer, particularly as the prisoner failed to show that the employee was involved in any way in the decision to transfer him. A third member of the panel dissented, arguing that the prisoner's assertion that the employee told him that he would be returning to a higher security level, if true, could be used to infer that the employee had some involvement in the transfer decision. The close proximity in time between the confrontation with the employee and the transfer also might point to an act of retaliation, the dissenter contended. Cantley v. Armstrong, #09-1092, 2010 U.S. App. Lexis 17766 (Unpub. 6th Cir.).
A newspaper that reports on prison legal issues claimed that California prison officials violated its First Amendment rights by refusing to deliver its publications to some prisoners, and by refusing to deliver certain hardcover books that the publisher wished to send to prisoners. The parties reached a settlement agreement which included delivery of the publications to prisoners, and the payment of $65,100 in damages. Ultimately $458,000 in attorneys' fees and costs were also paid by the state. A federal appeals court has now upheld a trial court award of an additional $137,502.46 in attorneys' fees and costs for work done monitoring the state's compliance with the settlement agreement, including corresponding with inmates. Prison Legal News v. Schwarzenegger, #09-15006, 2010 U.S. App. Lexis 11690 (9th Cir.).
A Texas prisoner claimed that he obeyed an officer's orders to walk along the right side of a yellow line in an orderly manner, but that minutes later, he was approached in his cell and handcuffed by another officer for failing to follow the order. He was charged with a disciplinary offense of creating a disturbance, allegedly in retaliation for complaints his family had made about his treatment at the prison. The Texas Supreme Court agreed that the hearing officer properly declined to call, as a witness, the officer who handcuffed the prisoner, as he was not present at the time of the alleged misconduct. Also, there was no evidence that the disciplinary hearing resulted in any punishment that would be sufficient to deter the prisoner from the exercise of his First Amendment rights, so his retaliation claim failed. Institutional Division of Texas Dep't of Criminal Justice v. Powell. #08-0345, 2010 Tex. Lexis 480.
A prisoner claimed that a correctional officer had him removed from a job in the prison laundry in retaliation for a letter he wrote to the governor complaining about the officer. The retaliation claim was rejected, as there was no evidence refuting the officer's explanation that the prisoner was removed from the job at his own request because he felt "unsafe" there. Strope v. McKune, #09-3283, 2010 U.S. App. Lexis 11956 (Unpub. 10th Cir.).
While working as a computer lab tutor at a prison, an inmate reminded his supervisor that an outside contractor had recommended removing certain network restrictions. The prisoner contended that the authorization of the new network amounted to a misappropriation of government funds. Hours after the discussion, the supervisor told the inmate that he might not be able to keep his job. The prisoner was, in fact, terminated, but was reassigned to work as an education aide weeks later. His new job had the exact same pay grade as his former job. Upholding the rejection of the prisoner's First Amendment retaliation claim, the court found that even if the termination had been in retaliation for the exercise of a constitutional right, the prisoner had not suffered a constitutional violation, as his pay rate remained the same. Shelton v. Fox, #09-40264, 2010 U.S. App. Lexis 11016 (Unpub. 5th Cir.).
An inmate who had worked in a prison library claimed that the librarian unlawfully retaliated against him in violation of his First Amendment rights because he had criticized library policies. In response, the librarian allegedly initiated a series of false disciplinary actions against him as well as false work evaluations, disposing of his personal materials, and denying access to the library. The court ruled, however, that the prisoner's speech was unprotected by the First Amendment as a matter of law. With regard to his criticisms of the library's policies, he had openly challenged directives issued by the librarian in front of other inmate law clerks, which was inconsistent with legitimate penological interests, which was also true of the "confrontational" manner in which he complained about his personal material, interfering with prison discipline and order. Watkins v. Kasper, #08-3105, 2010 U.S. App. Lexis 6954 (7th Cir.).
Prison employees investigating reports that an inmate and others were planning to engage in assaults and a work stoppage, discovered the existence of an inmate petition. The plaintiff inmate was then accused of conspiring to circulate an unauthorized petition and assault staff members and other inmates. Found guilty of these charges, he was transferred to Wisconsin's highest security prison as a result. Rejecting First Amendment retaliation claims, the appeals court found that the punishment imposed was essentially for his role in a planned prisoner uprising, not the petition. Claims were also rejected against some defendants because of their lack of involvement in the seizure of the petition from another prisoner's cell or the filing of a conduct report against the plaintiff. The appeals court also found no evidence of any improper racial motivation for the actions taken against the inmate. Felton v. Ericksen. #09-2450, 2010 U.S. App. Lexis 4554 (Unpub. 7th Cir.).
A federal appeals court upheld a jury verdict finding that corrections officers did not retaliate against him in violation of his First Amendment rights. Further, the alleged conduct of confiscating his eyeglasses and verbally threatening him did not rise to the level of an Eighth Amendment violation, since there was no indication that these actions caused him sufficiently serious harm or injury. Felder v. Filion, #08-1767, 2010 U.S. App. Lexis 4680 (Unpub. 2nd 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.).
A prisoner claimed prison officials' actions in confiscating his fantasy role-playing "Dungeons and Dragons" game materials and banning the playing of the game violated his due process, equal protection, and First Amendment free speech rights. He disputed the assertion that playing the game promoted gang behavior, and argued, in fact, that doing so could promote rehabilitation. A federal appeals court, upholding the ban, found that prison officials could reasonably believe that playing the game could promote gang behavior, and undermine prison security, and that the game's structure mimicked gang structure. The burden was on the prisoner to refute those contentions, and he failed to adequately do so, Singer v. Raemisch, #07-3400, 2010 U.S. App. Lexis 1506 (7th Cir.).
A prisoner's statement that he would file and pursue a grievance against a prison employee if she failed to assist him in obtaining footlockers could be constitutionally protected conduct under the First Amendment, requiring the reinstatement of his dismissed First Amendment claim that the employee unlawfully retaliated against him by taking actions that subjected him to the possibility of receiving a major misconduct ticket. Pasley v. Conerly, #08-2132, 2009 U.S. App. Lexis 21364 (Unpub. 6th Cir.).
A federal appeals court upheld the award of $1 in compensatory damages and $2,500 in punitive damages to a prisoner on his claim that a disciplinary charge was filed against him in retaliation for his having filed a grievance against a correctional officer for allegedly cursing at him and threatening him. The trial court did not clearly err in determining that the officer would not have filed the disciplinary charge against the prisoner in the absence of a retaliatory motive. The disciplinary report accused the prisoner of having made false statements in his grievance. Haynes v. Stephenson, #08-3766, 2009 U.S. App. Lexis 27433 (8th Cir.).
An inmate who allegedly granted media interviews beyond the scope of the Bureau of Prisons' permission claimed that a county sheriff and the BOP director violated his First Amendment rights by denying him good time credits as a result of violating rules restricting such interviews. His home confinement was also revoked as a result of the rules violation. A federal court found that his free speech rights were not violated since there were legitimate penological interests in control of whom he came into contact with during his home confinement, and he did have other ways of communicating with the media. The court also rejected a due process claim, noting that he clearly violated a rule he agreed to in his electronic monitoring contract that required prior approval of all media interviews. Hatch v. Lippin, #09-11490, 2009 U.S. Dist. Lexis 93880 (D. Mass.).
A prison official was not entitled to summary judgment on a prisoner's claim that he violated his First Amendment rights by including, in his denial of a grievance, an admonition that the prisoner should be careful what he wrote on his grievances. There were legitimate factual issues as to whether this "chilled" the prisoner's rights and whether it was related to legitimate correctional goals. Brodheim v. Cry, #07-17081, 2009 U.S. App. Lexis 23721 (9th Cir.).
A prisoner claimed that he suffered an Eighth Amendment violation because prison employees verbally harassed him, tried to place him in a chow hall seating area where he could have been attacked by other prisoners, and "stared" at him for approximately five minutes when he was tied down to his bed wearing only boxer shorts, with his legs spread apart. Finding these claims frivolous, the court noted that he did not claim physical injury, did not show any indication of a use of excessive force, and did not show that a defendant made any comments to him of a sexual nature. The court also rejected the prisoner's First Amendment claims regarding the handling of his mail, finding that allegedly crossing out the Zip code on a letter he mailed did not amount to a constitutional violation, and that he suffered no harm from the alleged opening of his legal mail. Crownhart v. Sullivan, #08-1483, 2009 U.S. App. Lexis 21814 (Unpub. 10th Cir.).
The chronology of events surrounding a prisoner's transfer to a new facility was sufficient to assert a possible claim for retaliatory transfer against a deputy warden. The prisoner claimed that the defendant transferred him for filing a grievance against him. Williams v. Brown, #08-16230, 2009 U.S. App. Lexis 20193 (Unpub. 11th Cir.).
While there had been "some issues" concerning the plaintiff prisoner's allegedly excessive book requests through the prison library system, he failed to show that the defendant library director had anything to do with the problem, or that the defendant conspired with other prison employees to retaliate against him for filing a grievance, in violation of his First Amendment rights. Zulu v. Botta, #05-CV-6529, 2009 U.S. Dist. Lexis 40762 (W.D.N.Y.).
Prisoner failed to establish a denial of access to the courts based on failure to grant him requested library time when he could not show that he had suffered any actual injury to his ability to litigate his claims. He also failed to show that disciplinary actions taken against him was in retaliation for his pursuit of his claims. Bandey-Bey v. Crist, No. 08-2084, 578 F.3d 763 (8th Cir. 2009).
A prisoner's claim that he was disciplined for sending a note to another prisoner, which violated a legitimate regulation, was an insufficient basis for a claim of unlawful retaliation in violation of the First Amendment. The prisoner did allege sufficient facts to create a due process claim regarding the alleged denial of his right to call requested witnesses at his disciplinary hearing. He claimed that despite having requested these witnesses repeatedly before and during the hearing, an officer falsely wrote down that no witnesses were requested. No argument was presented that the witnesses were denied for reasons of institutional safety or other legitimate correctional objectives, and the requested witnesses appeared to have information relevant to the prisoner's claim that a correctional officer was spreading false rumors that h was a "snitch" and that some inmates had been bribed to testify falsely against him. Moulds v. Bullard, #08-10706, 2009 U.S. App. Lexis 18296 (Unpub. 11th Cir.).
When a prisoner gave advice to a fellow inmate about how to file a grievance, he was not engaged in constitutionally protected speech. His own filing of grievances, however, as well as his statements about his intention to file grievances against a treatment program assistant, were protected speech. The prisoner failed to show that the assistant retaliated against him because of the grievances, since his grievances were a response to her actions, not the cause of them. Coleman v. Beale, #07-CV-6219, 2009 U.S. Dist. Lexis 58465 (W.D.N.Y.).
While a prison guard's alleged action of displaying a noose could not reasonably have been interpreted by a prisoner as constituting a threat against him, and was not, therefore, cruel and unusual punishment, the trial court should not have dismissed the prisoner's claim that he was unlawfully retaliated against, including suffering the loss of his prison job, in response to his pursuit of a grievance over the incident. Dobbey v. Illinois Dept. of Corrections, #08-2828, 574 F.3d 443 (7th Cir. 2009).
While the plaintiff inmate asserted that false disciplinary reports, for which he was sanctioned, were filed against him in retaliation for his use of the grievance system, he produced no evidence of this except for the timing of the discipline, and did not show that his filing of grievances was a motivating or a substantial factor in the decision to file three misconduct reports against him. The defendants presented evidence that they had legitimate penological reasons for the filing of the reports. Toussaint v. Good, #08-3751, 2009 U.S. App. Lexis 14991 (Unpub. 3rd Cir.).
An inmate accused prison officials of violating his First Amendment rights by retaliating against him for writing a pamphlet that encouraged other prisoners to engage in work stoppages. Such work stoppages, the court stated, were deliberate disruptions of prison order, and restrictions on prisoners' rights to organize and petition were reasonable when inmate grievance procedures were available. Advocacy of such work stoppages were not entitled to First Amendment protection when less disruptive means of pursuing grievances were available. Pilgrim v. Luther, #07-1950, 2009 U.S. App. Lexis 14588 (2nd Cir.).
A prisoner claimed that subjecting him to a disciplinary hearing for using vulgar or indecent language in a note mailed to opposing counsel violated his First Amendment rights. Rejecting this claim, a federal appeals court found that the note, which was written on toilet paper, resembled a threat and showed a "completely unjustified" disrespect for authority. It used "unacceptably vulgar" language that would not be tolerated in the free setting. Imposition of discipline for writing the note helped correct behavior that would prejudice the prisoner when he left prison. Morgan v. Quarterman, #07-41064, 2009 U.S. App. Lexis 12325 (5th Cir.).
While book publishing, since it could result in the payment of royalties to the prisoner, did constitute a "business activity" under California law, the court, without further evidence, could not determine that a decision barring the prisoner from publishing his book furthered a substantial or important governmental interest unrelated to the suppression of his First Amendment expression. Further proceedings were therefore ordered on his First Amendment claims. Bretches v. Kirkland, #07-16022, 2009 U.S. App. Lexis 11750 (Unpub. 9th Cir.).
Massachusetts inmates challenged a state regulation that banned their receipt of sexually explicit publications or publications featuring nudity, as well as a correctional policy against displaying such materials in their cells. Rejecting the plaintiffs' First Amendment claims, the federal appeals court found that there was a rational connection between legitimate governmental interests and the means used to further them. Prison security concerns supported the cell display policy. Josselyn v. Dennehy, #08-1095, 2009 U.S. App. Lexis 12272 (1st Cir. Cir.).
A prisoner claimed that he suffered unlawful retaliation, in violation of his First Amendment rights, after he provided assistance in legal matters to other prisoners. The retaliation supposedly included deprivation of property, improper segregation, and interference with his right of access to the courts. A federal appeals court found that the plaintiff prisoner failed to show that the defendants' actions affected his ability to pursue his legal claims, or that the conditions in segregation imposed a major hardship. The court ordered further proceedings, however, on the claim that he was deprived of property in retaliation for his legal assistance to other inmates, and that he provided this assistance to try to protect constitutional rights or achieve social change, activities protected by the First Amendment. Taylor v. McSwain, #08-12238, 2009 U.S. App. Lexis 12858 (Unpub. 11th Cir.).
A federal prison rule that barred in-person meetings between reporters and prisoners confined in a special unit because they were sentenced to death did not violate equal protection, but was justified by the differing needs of security in different units. Additionally, press interviews could potentially turn some prisoners into celebrities, and increase prison tension. The First Amendment was not violated, given that uncensored outgoing correspondence directed to the media was allowed. Finally, since the ban on in-person media interviews was a blanket ban, it was viewpoint and content neutral. Hammer v. Ashcroft, #06-1750, 2009 U.S. App. Lexis 13804 (7th Cir.).
Rejecting a prisoner's claim that he had faced a false disciplinary charge in retaliation for his exercise of his First Amendment rights, the court ruled that any adversity suffered was minimal since the disciplinary charges were dropped after a week, no sanctions resulted, and the prisoner was afforded several opportunities to give his side of the facts to neutral persons. Starr v. Dube, #08-1322, 2009 U.S. App. Lexis 13552 (Unpub. 1st Cir.).
A prisoner failed to show a causal connection between his transfer, his loss of his bed after he was taken to a hospital for treatment, and his filing of a grievance over an incident in which he was allegedly "yanked" out of a shower and "paraded" naked back to his cell. The court therefore rejected his First Amendment retaliation claim. The court also found that the defendant correctional employees were entitled to qualified immunity on the prisoner's claim that the shower incident violate his Eighth Amendment rights, as he had no clearly established right not to have his naked body exposed in prison. Solan v. Ranck, #07-4571, 2009 U.S. App. Lexis 9987 (Unpub. 3rd Cir.).
An affidavit from another prisoner, which was the only evidence a plaintiff inmate showed of retaliation against him for filing a grievance, actually showed that officials were motivated to place him in administrative segregation by his dangerousness, not his grievance filing. They would have taken the same actions even if he had never filed the grievance, based on his gang affiliation and his long history of violent and abusive behavior. Denying the prisoner newspapers did not violate the First Amendment, but was an acceptable policy decision for officials trying to achieve legitimate goals. The court also rejected the claim that the prisoner's rights were violated by him being forced to wear a paper gown after he was found casting a string between cells to try to pass notes and other items. Soto v. Bertrand, #08-2540, 2009 U.S. App. Lexis 9901 (Unpub. 7th Cir.).
A prisoner did not have a right to review all the potentially inculpatory evidence before a disciplinary hearing began. Additionally, while he complained of not receiving certain documentary evidence at all, it was provided to him orally. His claim that he was denied the right to call witnesses was contradicted by the fact that he did, in fact, call a witness, and his failure to name any particular witness he was allegedly prevented from calling. His general attack on the hearing officer as "immoral, not impartial and not unbiased" was not supported by any particulars. There was, the court found, "some evidence" in the record to support disciplinary action against the prisoner, and no proof of a violation of his due process rights. The prisoner also failed to show that the incident report was filed against him in retaliation for his prior filing of a federal civil rights lawsuit, in violation of his First Amendment rights. Lasko v. Holt, #08-4216, 2009 U.S. App. Lexis 11482 (Unpub. 3rd Cir.).
A prison rule requiring inmates to put 10% of certain funds into a savings account to be paid to them on release was justified by a legitimate correctional interest in easing their transition back into society. The trial court improperly rejected, however, the prisoner's challenge to a ban on sexually explicit materials when he had standing to challenge the rule since he had such materials, which he mailed to the court to comply with a deadline to dispose of them, and there was an indication that he would have been subject to discipline had he not done so. Sperry v. Werholtz, #08-3274, 2009 U.S. App. Lexis 7931 (Unpub. 10th Cir.).
Prison regulations providing for censorship of sexually explicit material and materials promoting violence were not facially violative of the First Amendment, as they were intended to promote legitimate governmental interests. A prisoner could, however, pursue his claim that officials improperly applied the regulations to exclude publications that were not inflammatory. He could also pursue claims concerning a prohibition on publications because they contained posters, stickers, or other free items, since the defendant officials failed to state their justification for this prohibition, and the prisoner further claimed that it was unevenly applied, leading to improper content-based decisions. The defendants also failed to show why the suggested alternative of removing these items from the publications would be burdensome. Dean v. Bowersox; #08-1558, 2009 U.S. App. Lexis 8477 (Unpub. 8th Cir.).
A prisoner had no protected First Amendment right to make disrespectful comments about prison officials in his outgoing mail to them, calling them "evil," "unmerciful," and "inhumane." The court rejected the prisoner's claim that prison officials had unlawfully retaliated against him for his statements, in violation of his First Amendment rights. Huff v. Mahon, No. 08-6568, 2009 U.S. App. Lexis 3605 (Unpub. 4th Cir.).
Prisoner stated a viable First Amendment claim in alleging that prison officials retaliated against him for making a statement in support of a wrongful death lawsuit against them. Bridges v. Gilbert, No. 07-1551, 2009 U.S. App. Lexis 5129 (7th Cir.).
Prisoner failed to show that correctional defendants confiscated his property in retaliation for his previous filing of grievances, since he failed to show a causal relationship between the decision to confiscate the property and his prior actions. Royster v. Beard, No. 08-3353, 2009 U.S. App. Lexis 1364 (Unpub. 3rd Cir.).
A prisoner failed to show a sequence of events from which it could be inferred that allegedly false disciplinary charges were filed against him in retaliation for his filing of complaints against correctional personnel. Mahogany v. Rogers, No. 06-31144, 2008 U.S. App. Lexis 18635 (Unpub. 5th Cir.).
Even if one of the correctional officials were found to have entrapped a prisoner into a disciplinary violation, as he claimed, there was no showing that this was done in retaliation for the prisoner's testimony in a federal class action lawsuit against the correctional facility. Summary judgment for the defendants was therefore appropriate in the prisoner's First Amendment lawsuit. Clark v. Johnston, Case No. 4:07 CV 941, 2008 U.S. Dist. Lexis 101483 (N.D. Ohio).
There was a lack of evidence that a prison employee who filed a disciplinary report against a prisoner had knowledge of his prior federal civil rights lawsuit, justifying summary judgment on the prisoner's retaliation claims. Bennett v. Goord, No. 06-3818, 2008 U.S. App. Lexis 24441 (Unpub. 2nd Cir.).
> A Texas prisoner claimed that he had pseudofolliculitis barbae (PFB), a medical condition on the basis of which he was issued a clipper shave pass (CSP) which constituted permission not to shave and to maintain a 1/4" beard. He further claimed that prison employees improperly threatened him with disciplinary action for failing to shave, imposed discipline on him on that basis, and declined to renew his CSP in retaliation for his complaints. These claims were all rejected, as the record indicated that the discipline was imposed for failing to maintain a 1/4" beard, not for failure to be clean-shaven. He also failed to show that his medical condition was serious and posed a risk of substantial harm, or that he was subjected to retaliation. James v. Ramirez, No. 07-50674, 2009 U.S. App. Lexis 83 (Unpub. 5th Cir.).
> The cost of collect telephone calls placed by inmates to outside persons, which included a commission paid by the phone service provider to the New York State Department of Correctional Services, did not violate the First Amendment rights of the call recipients, when the cost was not so "exorbitant" as to interfere with their right to communicate with the inmates. Walton v. N.Y. State Dept. of Correctional Services, #504552, 2008 N.Y. App. Div. Lexis 9558 (A.D. 3rd Dept.).
A policy barring committed sex offenders from having access to sexual material relating to children did not violate their First Amendment rights. Possession of such material would undermine the treatment being provided to the plaintiff, who had been convicted of crimes against children. Stewart v. Richards, Case No. C08-5275, 2008 U.S. Dist. Lexis 83586 (W.D. Wash.).
Genuine factual issues existed as to whether an inmate was removed from his prison law library job in retaliation for filing a grievance concerning a federal prison camp's practice of taking pictures of visitors and allegedly opening his legal mail outside his presence. Nunez v. Renda, Civil No. 3:CV-05-1763, 2008 U.S. Dist. Lexis 86280 (M.D. Pa.).
A prisoner's conduct in filing grievances was activity protected by the First Amendment, and there was sufficient evidence to support an inference that the unit manager of his cell block was motivated by retaliation for such grievances in placing him in administrative custody and later transferring him to a different prison. The unit manager showed, however, that the same steps would have been taken for legitimate penological reasons, regardless of the inmate's grievances, so there was no showing that retaliation caused the administrative custody or transfer. The court also found no evidence that these actions were taken on the basis of the prisoner's religious affiliation. Holbrook v. Walters, No. 08-2080, 2008 U.S. App. Lexis 21679 (Unpub. 3rd Cir.).
Prisoner showed that officer filed a false disciplinary charge against him for filing a grievance against him for cursing and threatening the prisoner in violation of department policy. While the disciplinary charges were later dismissed, the prisoner suffered six days of isolation, during which he received showers only every three days and had restricted exercise privileges. He was awarded $1 in nominal damages, as he had not suffered any physical injuries. The prisoner was also awarded $2,500 in punitive damages for the officer's malicious disregard for his right to access the courts. Haynes v. Stephenson, Case No. 5:07CV00295, 2008 U.S. Dist. Lexis 81571 (E.D. Ark.).
There was a genuine issue of fact as to whether a correctional officer retaliated against him for filing grievances by writing up false disciplinary reports and intentionally closing a cell door on him, resulting in injury. Shaw v. Cowart, No. 07-14884, 2009 U.S. App. Lexis 23500 (Unpub.11th Cir.).
A prisoner could go forward with his claim that he suffered retaliatory action in connection with a transfer on the basis of his actions concerning a grievance, in violation of his First Amendment rights. The prisoner presented a plausible claim of retaliation on the basis of a memo requesting the transfer which was submitted outside of the normal procedure for such requests, and which spoke about his attempts to "create unrest" among other prisoners. Milligan v. Reed, Civil Action No. 06-cv-00911, 2008 U.S. Dist. Lexis 70864 (D. Colo.).
Prisoner adequately alleged that a correctional officer seized and destroyed his family photographs from his cell in retaliation for grievances that he had filed or threatened to file against the officer. The court rejected his cruel and unusual punishment, equal protection, and due process claims. Olmsted v. Sherman, No.08-cv-439, 2008 U.S. Dist. Lexis 67391 (W.D. Wis.).
Federal prisoner failed to show that the Ensign Amendment, 28 U.S.C. Sec. 530C(b)(6) violated his First Amendment rights in restricting his access to sexually explicit publications, specifically certain magazines and a book that were sent to him. Restricting such materials was reasonably related to legitimate penological interests in security and rehabilitation. The court did rule, however, that Federal Bureau of Prisons (BOP) Program Statement 5266.10, Sec. 7 was unconstitutional in allowing a rejected publication to be returned to the publisher before an administrative review was completed, and the enforcement of that Program Statement was enjoined. Jordan v. Sosa, Civil Action No. 05-cv-01283, 2008 U.S. Dist. Lexis 53006 (D. Colo.).
Federal appeals court upholds the rejection of a prisoner's claims that he faced retaliation for exercising his right of access to the courts both in filing his own lawsuits, and in providing legal advice to other prisoners. The court notes that providing legal advice to other prisoners is not entitled to any greater First Amendment protection than communication with fellow inmates on any other topic. The prisoner failed to show any specific harm that the alleged retaliation caused to the progress of his lawsuits. Gronquist v. Deshazer, No. 06-35024, 2008 U.S. App. Lexis 19856 (Unpub. 9th Cir.).
Trial court should not have dismissed a prisoner's lawsuit claiming that his First Amendment rights were violated when prison officials allegedly censored his outgoing mail and cited him for violating prison disciplinary rules by using offensive and vulgar racist language describing prison officials. The trial judge could not decide, on the basis of merely the pleadings, whether the actions taken furthered substantial governmental interests or went no further than needed to protect those interests. Barrett v. Belleque, No. 06-35667, 2008 U.S. App. Lexis 20087 (9th Cir.).
The record failed to show how a prison's limit of ten books in a prisoner's cell furthered safety and security interests. The appeals court ordered further proceedings on the prisoner's lawsuit challenging the removal of 57 books, including the Koran and other religious books, from his cell under the policy, claiming that this violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc et seq. Warren v. Pennsylvania, No. 07-3011, 07-3011, 2008 U.S. App. Lexis 17395 (Unpub. 3rd Cir.).
Prison officials failed to show that a regulation under which they confiscated a prisoner's magazine tear-outs of photographs was rationally related to legitimate objectives. The photo tear-outs were confiscated because they came from the prisoner's magazines, while, had those photos been part of a clipped article that arrived in the mail to the prisoner, they would not have been confiscated. The prisoner, therefore, could pursue his First Amendment claim, but the defendant officials were entitled to qualified immunity on a claim for damages because they acted pursuant to official prison policies, and those policies were not "patently" in violation of established constitutional rights. Brown v. Mason, No. 06-35766, 2008 U.S. App. Lexis 16725 (Unpub. 9th Cir.).
Prisoner failed to show that his transfer to another facility was in retaliation for his pursuit of grievances, or that his grievances were denied in retaliation, rather than because the defendant officials believed that they had no merit. Additionally, the defendants presented "plausible and independent" reasons for transferring him. It was also undisputed that he had previously requested a transfer, and that the transfer moved him 200 miles closer to his home. Alexander v. Forr, No. 06-4467, 2008 U.S. App. Lexis 18682 (Unpub. 3rd Cir.).
A Delaware inmate failed to show that he had been subjected to unlawful retaliation in violation of his First Amendment rights by having a misconduct report filed against him after he allegedly reported violations of prison rules in the kitchen where he was assigned to work, and by being subsequently disciplined and transferred following a finding of guilty on the charged infractions. The inmate failed to show that he had been engaged in constitutionally protected speech before he was fired from his kitchen job, since he only made informal verbal complaints about kitchen incidents, and failed to file any formal grievances or complaints. St. Louis v. Morris, Civ. No. 06-236, 2008 U.S. Dist. Lexis 57203 (D. Del.).
A prisoner in a private prison in Texas had a First Amendment right to write to the Wyoming Department of Corrections Director asking to be returned to Wyoming and complaining about the conditions of his confinement, and stated a valid claim against seven prison employees contending that they retaliated against him for doing so. He also asserted a valid claim for unconstitutional deprivation of his funds by alleging that he was fined $50 because he testified in another prisoner's disciplinary hearing. Pfeh v. Freudenthal, No. 07-10312, 2008 U.S. App. Lexis 12897 (Unpub. 5th Cir.).
Trial court improperly failed to recognize that a prisoner could have a First Amendment right to make "unflattering" statements to prison staff members in outgoing mail to his parents. The court should have analyzed whether the letters in question, which were allegedly censored and/or seized, fell within any identifiable categories of mail presented a threat to security and order. The court ordered further proceedings on the prisoner's claims concerning his personal correspondence, as well as on claims that he faced retaliation for statements made in the letters. Berenguel v. Bell, No. 07-10066, 2008 U.S. App. Lexis 13597 (Unpub. 5th Cir.).
A newspaper's refusal to accept a paid subscription from a prisoner based on a corporation policy against supplying subscriptions to prisoners did not violate his First Amendment rights, and the corporate action was not compelled by a city resolution that "urged" the corporation to adopt such a policy. Henderson v. Huibregtse, No. 07-2571, 2008 U.S. App. Lexis 12671 (Unpub. 7th Cir.).
Removal of a prisoner from his misconduct hearing by correctional officers and prison nurses did not violate his First Amendment rights. His statement at the proceeding that the hearing officer was a "foul and corrupted bitch" was not protected by the First Amendment and constituted "insolence" in violation of prison regulations, questioning the hearing officer's authority and the proceeding's integrity. The court also found that the amount of force used was minimal and reasonable under the circumstances. The prisoner also failed to show deliberate indifference to his medical needs for his minor cuts and lacerations. Lockett v. Suardini, No. 06-2392, 2008 U.S. App. Lexis 10359 (6th Cir.).
Mississippi jailers claimed that, after they witnessed a sergeant beating a prisoner, they were told to report the incident to a supervisor, but were fired one day after they filed the report, purportedly on unrelated charges of misconduct. Ordering further proceedings on the fired jailers' First Amendment claims, an appeals court found that there was a genuine issue of fact as to whether their action in filing the report was part of their official job duties, and therefore not protected speech under the First Amendment. The issue is whether or not language in a policy manual stating that jailers should report certain kinds of incidents showed that their actions in doing so was part of their job duties. The plaintiff jailers argued that the manual did not create any such duty to report incidents such as the beating. Williams v. Riley, No. 07-60252, 2008 U.S. App. Lexis 8990 (5th Cir.).
Prison officials were entitled to qualified immunity in seizing, from a prisoner's cell, his written manuscripts, including novels, short stories, and artwork. The prisoner himself agreed that the officials had properly seized one of his stories as forbidden material under prison regulations because of its sexually explicit nature. While there were material issues of fact as to whether the defendants were justified in seizing the remaining materials, or whether that seizure violated the prisoner's First Amendment rights, since some of it was not sexually explicit, this was not clear to the defendants at the time of the seizure. Their actions, therefore, could constitute a reasonable mistake, which is inevitable in the context of limited resources and serious security concerns. The prisoner also could not have the appeals court address his complaint that the defendants had not complied with a trial court injunction requiring the return of his writings, when he failed to raise that issue with the trial court. Lee v. Carlson, No. 07-4093, 2008 U.S. App. Lexis 1572 (10th Cir.).
Prisoner's placement in and retention in administrative custody for eleven years did not violate his constitutional rights. His status was reviewed every ninety days, and the committee reviewing that status repeatedly recommended that he remain in administrative custody status for security and safety reasons, based on his history of serious misconduct, which included participation in a prison riot and multiple assaults. The prisoner failed to show that his continued administrative custody interfered with his First Amendment rights, since he failed to identify a non-frivolous claim that his status prevented him from presenting. He also claimed to show that the conditions of his confinement violated his rights. Gans v. Rozum, No. 07-3750, 2008 U.S. App. Lexis 4744 (3rd Cir.).
Federal appeals court overturns trial court decision upholding federal Bureau of Prisons policy preventing death row inmates from engaging in face-to-face interviews with members of the media or from discussing other inmates with the media. The appeals court found that there were genuine material facts in dispute as to whether the policy was based on security concerns or merely was a pretext for preventing death row inmates from expressing their views to the public. Also at issue was whether there was a legitimate reason for treating death row inmates different from other inmates. Hammer v. Ashcroft, No. 06-1750, 2008 U.S. App. Lexis 808 (7th Cir.).
Prisoner's claim that he was improperly disciplined for sending a copy of a letter to a prison internal affairs unit, in violation of his First Amendment rights, is rejected by appeals court. The letter sought information about how to pursue his claims in state court against a prison official. The official considered the letter to be a threat because he worked in the unit where the copy of the letter was sent. The appeals court ruled that prison officials did not act unreasonably in viewing the sending of the copy of the letter as a "veiled threat" against the official, or in seizing the prisoner's legal papers after he filed a prison grievance, which was an attempt to circulate a petition, in violation of prison rules. May v. Libby, No. 05-1473, 2007 U.S. App. Lexis 27796 (7th Cir.).
Discipline of correctional employees because of their association with a motorcycle club did not violate their First Amendment or due process rights to freedom of intimate association or expressive association. The court found that the motorcycle club memberships were not expressive association "on matters of public" concern, and that those memberships also were not intimate relationships provided protection under the constitution. Additionally, law enforcement agencies believed that the motorcycle club in question engaged in criminal acts. Piscottano v. Murphy, No. 05-3716, 2007 U.S. App. Lexis 29541 (2nd Cir.).
Prison officials were not entitled to dismissal of prisoner's claims that they violated his First Amendment rights to freedom of religion and freedom of speech in refusing to mail 13 letters he tried to send to Baptist churches and ministers to seek prayer partners and religious pen pals. These actions were taken to enforce a rule barring correspondence soliciting or advertising for "money, goods or services," including seeking pen pals. Prison officials, in the trial court, failed to offer any explanation of the reason for the rule or what governmental interest it was advancing. While they might yet justify the rule and their actions, they had failed, to date, to do so, as a result of which the dismissal of the case was premature. Adamson v. McDonough, No. 06-12579, 2007 U.S. App. Lexis 28969 (11th Cir.).
Court upholds Massachusetts state regulation banning all sexually explicit publications and items from prisons. The rule banned the receipt, possession, and display of almost all materials with nude or semi-nude images or other sexually explicit content, except in a medical, educational, or anthropological context. The court ruled that there was a rational relationship between the rule and the legitimate interest that correctional facilities had in safety and rehabilitation. Under the rule, publications were individually reviewed to determine whether their content fell within the scope of the ban. Moses v. Dennehy, No. 06-10164, 2007 U.S. Dist. Lexis 85359 (D. Mass.).
Prisoner presented evidence from which a reasonable jury could find that major misconduct charges were brought against him in retaliation for his filing of prison grievances, in violation of his First Amendment rights, so that the defendant prison employees and officials were not entitled to qualified immunity. Scott v. Stone, No. 06-1622, 2007 U.S. App. Lexis 26624 (6th Cir.).
Prisoner failed to provide any supporting evidence for his allegation that he was served tainted food in retaliation of his pursuit of prior litigation, or that his snack food was tampered with. Ali v. Suchocki, No. 06-5160, 2007 U.S. App. Lexis 26233 (3rd Cir.).
Prisoner who claimed that he was subjected to an order to strip in a public hallway, a strip search, and a disciplinary proceeding, all as part of a campaign of harassment in retaliation for his exercise of his right of access to the courts could not recover compensatory damages when he failed to allege a physical injury as required under 42 U.S.C. Sec. 1997e(e). His vague claim on appeal that he suffered a wrist injury through unspecified events at some unspecified time was inadequate to alter the result. Further, the prisoner failed to show a constitutional violation as there were no facts showing an intent to retaliate for the exercise of his First Amendment rights. Samford v. Staples, No. 06-20717, 2007 U.S. App. Lexis 26851 (5th Cir.).
Requiring an inmate to participate in a sex offender treatment program, which required him to attend explicit group discussions of a sexual nature and view certain images, did not violate his First Amendment rights, based on the "vital" public and governmental interest in rehabilitation of convicted sex offenders. Additionally, even if an individualized sex offender treatment program existed which would have met the plaintiff's objections, it would have "unduly depleted" the prison's resources to provide it. The court failed to rule on the prisoner's objection to participation in the program under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc et. seq. on the basis of the defendants' claim that they had not had sufficient opportunity to respond to that claim. Schnitzler v. Reisch, No. Civ. 06-4064, 2007 U.S. Dist. Lexis 72938 (S.D.).
Bureau of Prisons regulation prohibiting a prisoner from publishing an article under a byline, 28 C.F.R. Sec. 540.20(b) violates the First Amendment, and was not essential for any particular security objective. The regulation was overbroad in discouraging all outgoing correspondence with the news media. Jordan v. Pugh, No. 02-cv-01239, 2007 U.S. Dist. Lexis 58231 (D. Co.).
There was a genuine issue of fact as to whether a prison employee who moved an inmate from the first to the second floor did so in retaliation for the prisoner having previously filed grievances and a lawsuit, requiring further proceedings on his First Amendment claim. Cross v. Dretke, No. 06-40513, 2007 U.S. App. Lexis 17207 (5th Cir.).
Prisoner failed to show that he was subjected to unlawful retaliation after he filed a grievance against an officer. The officer filed a misconduct report against him, which provided information concerning a fight between the inmate's children and the officer's children at school. The prisoner failed to show that the subsequent proceedings, which resulted in him being put into administrative custody and transferred, constituted unlawful retaliation. First, there was evidence that the officer had no involvement in what occurred after filing the report, and that institutional stability and safety required the separation of the officer and prisoner after the fight between their children occurred. Davis v. Pennsylvania State, No. 06-5188, 2007 U.S. App. Lexis 17819 (3rd Cir.).
A correctional regulation which prohibited an inmate's use of "abusive, obscene, or inappropriate language" did not violate a Pennsylvania prisoner's rights, and punishment of a prisoner for using such language in a prison form and a letter to a prison employee was proper, even if those documents allegedly were part of the prisoner's attempts to redress prison staff "malfeasance." Corliss v. Varner, No. 06-2328, 2007 U.S. App. Lexis 22202 (3rd Cir.).
Prisoner's claim that he was subjected to retaliation and a "fabricated" misconduct complaint for expressing an opinion about which television channel inmates would watch was properly dismissed as frivolous. A First Amendment retaliation claim could not be based on this, as expressing such an opinion was not protected speech. Wilson v. Budgeon, No. 07-1607, 2007 U.S. App. Lexis 22086 (3rd Cir.).
Seizure without a hearing of prisoner's materials concerning fantasy role-playing games, on the basis that materials of this sort had the potential of promoting "gang mentality and an interest in escape" did not violate either prisoner's due process of First Amendment rights. Post-deprivation remedies available were adequate to protect any possible due process rights, and the prison's policy was reasonably related to curbing gang activity and protecting institutional safety and security. Singer v. Frank, No. 05-C-1040, 2007 U.S. Dist. Lexis 55663 (E.D. Wis.).
While the working conditions in the prison commissary were "perhaps uncomfortable," they did not violate the plaintiff prisoner's Eighth Amendment rights against cruel and unusual punishment. The prisoner also failed to show that he was improperly transferred from his commissary job in retaliation for his grievances against his supervisors. Toolasprashad v. Wright, No. 06-3784, 2007 U.S. App. Lexis 19875 (3rd Cir.).
A Florida prisoner failed to show that prison officials altered his work assignment in retaliation for his pursuit of grievances, in violation of his First Amendment rights. Brown v. Mache, No. 07-10034, 2007 U.S. App. Lexis 12326 (11th Cir.).
Prisoner could proceed with his First Amendment claim that a housing lieutenant falsely accused him of misconduct, causing his placement in a special housing unit in retaliation for his having filed a grievance against the lieutenant. Rivera v. Selsky, No. 9:05-CV-0967, 2007 U.S. Dist. Lexis 23064 (N.D.N.Y.).
California prisoner stated a possible First Amendment claim by alleging that correctional officers confined him to his quarters and destroyed two of his "recycled art statutes" in retaliation for his having filed a grievance against two other correctional officers. The alleged conduct, however, did not violate his Eighth Amendment rights, and also did not violate his due process rights since he did not have a liberty interest in avoiding confinement to his quarters, and the destruction of the statutes, allegedly his property, was not "authorized." Davis v. Calif. Dept. of Corrections, No. 1:06-cv-01062, 2007 U.S. Dist. Lexis 26507 (E.D. Cal.).
Prisoner allowed to amend his lawsuit to further explain his claim that he was suspended from a softball league and a hobby craft program in retaliation for having filed grievances, in violation of his First Amendment rights. The court found that his lawsuit did not adequately establish due process claims, because he had no protected liberty interest in remaining in the recreational programs from which he had been suspended. Bigbee v. Nalley, No. 07-C-71, 2007 U.S. Dist. Lexis 25336 (W.D. Wis.).
Prisoner did not establish a First Amendment claim when he failed to show a connection between the alleged retaliation against him and the grievances he had previously filed. Bartelli v. Galabinski, No. 06-1545, 2007 U.S. App. Lexis 8853 (3rd Cir.).
Evidence supported a jury determination that a prison supervisor fired inmate from his prison job and filed a false disciplinary report against him for filing a grievance against him in violation of his First Amendment rights. Appeals court upholds award of nominal damages of $1 and punitive damages of $500 against the supervisor, but finds no basis for liability against other defendants, including the prison warden, administrative review board member, a grievance officer, and a prison counselor, since there was no evidence that they were personally responsible for the actions against the plaintiff. Henderson v. Johnson, No. 04-CV-3037, 2007 U.S. Dist. Lexis 17900 (C.D. Ill.).
Male prisoner failed to show a violation of Fourth Amendment privacy rights or 8th Amendment rights based on female correctional officers' alleged intentional observation of him in the shower or in his housing unit nude or in various undressed states, but the court ordered further proceedings on his claims that he was subsequently "ogled" multiple times in retaliation for his pursuit of grievances over the observations. The court dismissed claims based on a correctional officers alleged actions in informing inmates and staff members that the plaintiff was a homosexual, child molester, and/or rapist. Morris v. Newland, No. CIV S-00-2794, 2007 U.S. Dist. Lexis 15725 (E.D. Cal.).
In a prisoner's lawsuit claiming that correctional officers made threats of physical violence against him, as well as threats of disciplinary action, to deter him from filing grievances, an officer's statement that "something drastic" would occur if the prisoner continued filing grievances, and a second officer's statement that the prisoner should "learn to play the game or have a boot put in your ass" could be found by a reasonable jury to be threats of violence aimed at retaliating against the prisoner for engaged in protected First Amendment activity. Pittman v. Tucker, No. 06-11454, 2007 U.S. App. Lexis 381 (11th Cir.). [N/R]
Prisoner failed to show that retaliation against him for testifying against an officer, in violation of his First Amendment rights, was the reason he was placed in administrative detention and then transferred to another facility. These events occurred after the officer filed disciplinary charges against the inmate when he discovered a diagram of the facility's kitchen in the prisoner's cell. Gay v. Shannon, No. 06-1325, 2006 U.S. App. Lexis 31742 (3rd Cir.). [N/R]
Even if a prisoner's letters to the governor were constitutionally protected First Amendment activities, he failed to show that he had been transferred in retaliation for writing them, when his "poor behavior," including three acts of misconduct, provided a sufficient basis for his transfer. Jerry v. Williamson, No. 06-1606, 2006 U.S. App. Lexis 31325 (3rd Cir.). [N/R]
A federal prisoner's First Amendment rights were not violated by an increase in the long-distance telephone rates at federal prisons. Prisoners had no right to any specific rate for their phone services. Court also rejects equal protection claims since there was no showing that the plaintiff was treated differently than other prisoners, or that there was a discriminatory purpose for the difference in rates between international and domestic long distance rates charged. Harrison v. Federal Bureau of Prisons, No. 1:06cv1182, 2006 U.S. Dist. Lexis 90646 (E.D. Va.). [N/R]
Prison officials failed to show a rational relationship between rehabilitative goals for the plaintiff prisoner and actions denying him access to eight specific publications withheld under a federal statute and regulations, the Ensign Amendment, 28 U.S.C. Sec. 530C(b)(6) and 28 C.F.R. Sec. 540.72 prohibiting the use of prison funds to distribute commercial materials featuring nudity or which were sexually explicit. Prisoner could proceed with his lawsuit challenging the constitutionality of the statute and regulations under the First Amendment. Jordan v. Sosa, No. 05-CV-01283, 2006 U.S. Dist. Lexis 82037 (D. Colo.). [N/R]
Evidence showed that prisoner's property was not destroyed in retaliation for his filing of a grievance over it being confiscation, but instead because prison officials believed it to be contraband. Buehl v. Beard, No. 03-1313, 2006 U.S. Dist. Lexis 68642 (W.D. Pa.). [N/R]
Publisher of periodical with articles about prison legal issues, largely written by prisoners, failed to show that it suffered a constitutional injury from a Florida Department of Corrections regulation barring inmates from receiving pay for their writing to pursue a federal civil rights claim under the First Amendment. It failed to show, for instance, that the regulation had any impact on its ability to continue to publish the periodical. Prison Legal News v. Decker, No. 05-14738, 2006 U.S. App. Lexis 25377 (11th Cir.). [N/R]
Prisoner stated a viable claim for violation of his First Amendment rights in alleging that a correctional officer filed a baseless disciplinary charge against him in retaliation for his having supplied an affidavit supporting another inmate's grievance. The fact that the disciplinary report against the plaintiff prisoner was ultimately withdrawn merely showed that he was not subjected to greater harm, and did not eliminate his claim against the officer for initially filing the charge and for refusing to withdraw it. Zarska v. Higgins, No. 05-3204, 171 Fed. Appx. 255 (10th Cir. 2006). [N/R]
Prison rule barring prisoners from talking to each other while in the dining hall did not violate their rights to free speech, due process of law, or constitute cruel and unusual punishment. Hendrickson v. McCreanor, #05-4340, 2006 U.S. App. Lexis 24906 (3rd Cir.). [2006 JB Nov]
Prison officials were entitled to qualified immunity in former prisoner's lawsuit claiming that they improperly restricted his ability to subscribe to certain newspaper, magazine, and newsletter publications based on his classification status, which was based on his behavior, as their actions did not violate any clearly established right. Calia v. Weholtz, No. 05-3201, 426 F. Supp. 2d 1210 (D. Kan. 2006). [N/R]
Prisoner stated a valid claim for retaliation in violation of his First Amendment rights by alleging that he was intentionally transferred to a facility lacking rehabilitation programs as punishment for his having filed a lawsuit challenging the failure of correctional officials to provide him with rehabilitation programs ordered by a court for treatment of psychological and psychiatric problems. The claim did not challenge the defendants' right, in general, to transfer the prisoner, but rather asserted that they did so, in this instance, for an improper motive. Price v. Wall, No. Civ. A. 05-3898, 428 F. Supp. 2d 52 (D.R.I. 2006). [N/R]
Prisoner's allegation that a federal correctional officer retaliated against him for his intention to file a grievance against him by taking actions leading to the prisoner's administrative segregation stated a viable claim for violation of the First Amendment. Johnson v. Sadzewicz, No. 05-71083, 426 F. Supp. 2d 635 (E.D. Mich. 2006). [N/R]
New Jersey failed to show that it had a reasonable basis, related to prison safety and security, in opening prisoners' legal mail outside of their presence. Inmates have a First Amendment interest in being present when incoming legal mail is opened by prison employees. Terrorist attacks of 9/11/2001, and incidents that fall of transmission of anthrax through the mail were not sufficient, years later, to support the continuation of a policy adopted as an emergency procedure. Jones v. Brown, No. 03-3823, 04-4426, 2006 U.S. App. Lexis 21601 (3d Cir.).[2006 JP Oct]
Jail guard's speech on alleged abuse of inmates was on a matter of public concern, protected by the First Amendment, and there were factual issues as to whether he was subjected to harassment in retaliation for exercising that First Amendment right. Fairley v. Andrews, No. 03C5207, 430 F. Supp. 2d 786 (N.D. Ill. 2006). [N/R]
Muslim prisoner who claimed he suffered retaliation from prison officials for complaining about alleged religious discrimination failed to show that the alleged "retaliation" resulted in any harm, barring his claim. Court further finds that the prisoner's employment by the California Prison Industry Authority did not make him an "employee" for purposes of a Title VII claim under the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e. Wade v. Cal. Dept. of Corrections, No. 05-15653, 171 Fed. Appx. 601 (9th Cir. 2006). [N/R]
Pennsylvania prisoner failed to present evidence from which a reasonable jury could conclude that he was fired from his prison kitchen job in retaliation for having filed grievances against his supervisor. The evidence showed that complaints about his work performance were present before he filed any grievances. Williams v. Meyers, No. 03-3938, 165 Fed. Appx. 201 (3rd Cir. 2006). [N/R]
U.S. Supreme Court overturns an appeals court decision that a prison policy forbidding certain very dangerous and "recalcitrant" prisoners access to newspapers, magazines, and photographs violated the First Amendment as a matter of law. Policy was justified by prison officials' legitimate interest in providing such prisoners with incentives for improvement of their behavior. Beard v. Banks, No. 04-1739 2006 U.S. Lexis 5176. [2006 JB Aug]
North Dakota state prison rules prohibiting inmates from possessing property, such as religious magazines, received from other prisoners, and classifying such "passed-on" property as contraband, upheld as reasonable. Larson v. Schuetzle, No. 20050418, 712 N.W.2d 617 (N.D. 2006). [2006 JB Aug]
Prisoner claiming that he was improperly retaliated against by being falsely disciplined for having written a letter and filed a prior lawsuit against prison staff members was not required to "establish" either the legal or factual elements of his claim in his complaint, but merely say enough to provide the defendants with adequate notice of his claim. Prisoner's federal civil rights lawsuit was not barred by finding, by prison disciplinary board, that his statements in his prior letter and lawsuit were false. Simpson v. Nickel, No. 05-4686, 450 F.3d 303 (7th Cir. 2006). [2006 JB Aug]
In a prisoner's lawsuit claiming that prison officials violated his First Amendment rights by refusing to allow him to organize an atheist study group, federal trial court finds that defendant officials were entitled to qualified immunity from liability for damages since it was not clearly established at the time of the denial, 2002, that atheism was a "religion," and the prisoner did not tell the defendants that he was a member of any non-theistic belief system, such as secular humanism, which had previously been held to be protected by the First Amendment's free exercise of religion clause. Kaufman v. McCaughtry, No. 03-C-027, 422 F. Supp. 2d 1016 (W.D. Wis. 2006). [N/R]
The decision by a prison nurse to place a prisoner in four-point restraint was not shown to be retaliation for his prior lawsuits against other prison personnel, when there was no evidence that the nurse even knew of those lawsuits, and she was not named as a defendant in a lawsuit until after the incident. Ziemba v. Clark, No. 05-1613, 167 Fed. Appx. 831 (2nd Cir. 2006). [N/R]
First Amendment challenge by a class of prisoners to a federal Bureau of Prisons program statement and institutional policy barring the showing of unedited R-rated movies to inmates rejected. The prohibition was rationally related to legitimate governmental interests in promoting the rehabilitation of prisoners. Prisoners had adequate alternative means to exercise their First Amendment rights, including access to G, PG, and PG-13 rated films, as well as R-rated films that had been edited for television. Jewell v. Gonzales, No. 97-408, 420 F. Supp. 2d 406 (W.D. Pa. 2006). [N/R]
Prisoner's allegation that he was transferred to a less desirable job assignment in retaliation for filing grievances was insufficient to show a violation of his First Amendment rights, but his assertion, if true, that he was transferred to an inferior and more dangerous prison for retaliatory reasons did state a claim. Morris v. Powell, No. 05-40578, 2006 U.S. App. Lexis 12033 (5th Cir.). [2006 JB Jul]
Prison officials, in preventing inmate from mailing out a copy of an internal investigation report concerning his escape attempt, violated his First Amendment rights, when the report had been properly obtained through discovery in a criminal case, and was available to the public in the court files of both the criminal prosecution and the prisoner's civil rights lawsuit. Arnett v. Markel, No. 5-04-0082, 845 N.E.2d 752 (Ill. App. 2006). [2006 JB Jul]
Federal appeals court allows class action challenging conditions of confinement for civilly committed "Violent Predators" in California to proceed on most claims, including claims involving procedural and substantive due process, privacy, excessive force, access to courts, unlawful retaliation for grievances or lawsuits, and forced medication in non-emergency situations. Hydrick v. Hunter, No. 03-56712, 2006 U.S. App. Lexis 13497 (9th Cir.). [2006 JB Jul]
Designation of prisoner as someone associated with a gang, which kept him in a secure unit, did not violate his First Amendment rights of freedom of association nor his procedural due process rights under the Fourteenth Amendment. Adequate due process was provided by notice of his impending "gang validation," together with an interview. Photographs of prisoner posing with other inmates, some of whom were already validated gang associates and one of whom was a validated gang member provided sufficient evidence for his designation. Stewart v. Alameida, No. C-03-4021, 418 F. Supp. 2d 1154 (N.D. Cal. 2006). [N/R]
Prisoner failed to show that a search of his cell and the confiscation of legal papers he possessed which belonged to other prisoners was unlawful retaliation for his exercise of his First Amendment rights in issuing a subpoena to the prison warden in a pending case. Peterson v. Lucero, No. 04-2318, 165 Fed. Appx. 657 (10th Cir. 2006). [N/R]
Prisoner failed to establish a valid claim for racial discrimination. While he filed grievances stating that "racism is prevailing" at the correctional facility, and accusing white employees of being "racist" and "hateful," he failed to allege that he had suffered any "specific hardships" as a result of such racism. He also failed to show that he had been punished for prior lawsuits and grievances or that an officer filed false disciplinary reports against him, in violation of his First Amendment rights. Jackson v. Madery, No. 04-1805, 158 Fed. Appx. 656 (6th Cir. 2005). [N/R]
Requirement that prisoner's exhaust available administrative remedies before filing a lawsuit over prison conditions applies to a claim by a prisoner in a privately run prisoner over the alleged confiscation of several magazines by a prison employee. Roles v. Maddox, No. 04-35280, 2006 U.S. App. Lexis 5037 (9th Cir.). [2006 JB Apr]
Wisconsin prison properly barred inmate from possessing books he claimed were essential for the practice of his "Odinist" religion, when they were found to advocate white supremacist violence. Borzych v. Frank, No. 05-3907, 2006 U.S. App. Lexis 5278 (7th Cir.). [2006 JB Apr]
First Amendment right of prisoners to receive gift publications was not "clearly established" in the middle of 2000, when a Kansas state prison rule barred such receipt, so that prison officials were entitled to qualified immunity from damages in lawsuit filed by inmates and the non-profit publisher of a periodical focusing on legal issues of interest to prisoners. Prison Legal News, Inc. v. Simmons, No. 02-4054, 401 F. Supp. 1181 (D. Kan. 2005). [N/R]
Texas prisoner stated a viable claim of unlawful retaliation against correctional officer who allegedly repeatedly harassed and threatened him with physical abuse for refusal to work as a prison informant, and for failing to supply the names of prison employees allegedly involved in drug trafficking. David v. Hill, No. C.A.C-04-673, 401 F. Supp. 2d 749 (S.D. Tex. 2005). [N/R]
A prison's complete ban on all mail between a prisoner and his attorney-friend, based on the prisoner being suspected of engaging in a prohibited paralegal business with the friend was overbroad and risked chilling the prisoner's access to the courts and counsel. A preliminary injunction against the ban was therefore granted. Evans v. Vare, No. 3:05-CV-3CR, 402 F. Supp. 2d 1188 (D. Nev. 2005). [N/R]
Censorship of a prisoner's outgoing mail under a Wisconsin regulation on the basis that it was believed to contain "encoded" references to gang activities did not violate his free speech rights. Koutnik v. Brown, No. 04-C-911, 396 F. Supp. 2d 978 (W.D. Wis. 2005). [N/R]
Male prisoner's claim that female guard made him strip naked and masturbate for her enjoyment, if true, was a violation of his privacy rights, but not "cruel and unusual punishment," since he only suffered minimal injury. Prisoner also claimed he was retaliated against for complaining about this treatment, in violation of his First Amendment rights. Boxer X v. Harris, No. 04-13083, 2006 U.S. App. Lexis 2008 (11th Cir.). [2006 JB Mar]
Correctional officer's alleged conduct of repeatedly groping or caressing a prisoner's chest, genitals and buttocks during a pat search, if true, constituted a sexual assault which would violate the Eighth Amendment, so that he was not entitled to qualified immunity. Further, the officer's alleged retaliation against the prisoner for complaining by planting evidence against him and filing a misbehavior report against him, if true, would violate the prisoner's First Amendment rights. Rodriguez v. McClenning, No. 03 Civ. 5269, 399 F. Supp. 2d 228 (S.D.N.Y. 2005). [N/R]
Prisoner failed to show that he was reassigned from a boiler-room job to a "hoe" squad and forced to work in dirty clothes and in cold weather in retaliation for his filing of grievances and complaints. The evidence showed, the court ruled, that he was actually reassigned for legitimate reasons, including the prisoner's connections to white supremacist groups and the risk of escape posed by his prior escape from another facility. Breshears v. Brown, No. 04-41749 150 Fed. Appx. 323 (5th Cir. 2005). [N/R]
If, as former Illinois prison warden claimed, she had no policymaking function and no discretionary authority, then her alleged termination based on her Republican political affiliation would demonstrate the violation of her clearly established First Amendment rights. Appeals court rejects, however, plaintiff's due process claim as she had no constitutionally protected property interest in continued employment as a state prison warden. Kiddy-Brown v. Blagojevich, No. 04-2283, 408 F.3d 346 (7th Cir. 2005). [N/R]
Pennsylvania Supreme Court upholds constitutionality of regulations prohibiting prisoners from receiving incoming publications found to be obscene, as well as of statute criminalizing the importation of such publication into prisons or their possession by prisoners. Inmates' lawsuit challenged the withholding of Penthouse magazine and several others available to the general adult public. Payne v. Commonwealth Dept. of Corrections, J-83-2004, 871 A.2d 795 (Pa. 2005). [2005 JB Dec]
Prisoner was properly excluded from attendance at religious ceremony which was attended by Catholic Cardinal and the Governor of New York, and placed in administrative segregation during the event. Prisoner had expressed hostility towards the Cardinal, and announced his intention of attending the ceremony despite his exclusion and "confronting" the Cardinal for failing to assist him in challenging his conviction. Prison officials' actions did not violate his First Amendment rights. Gonzalez v. Narcato, No. 01CV6102, 363 F. Supp. 2d 486 (E.D.N.Y. 2005). [2005 JB Dec]
Correctional officer was properly denied summary judgment on prisoner's claim that he had him transferred to another facility in retaliation for his complaint about the officer to his supervisors concerning the officer's alleged refusal to authorize the payment of funds from the prisoner's account to pay his lawyer for work in connection with his criminal appeal. If true, this would be violative of his First Amendment right of access to the courts. Siggers-El v. Barlow, No. 03-2291, 412 F.3d 693 (6th Cir. 2005). [2005 JB Nov]
Plaintiff assistant wardens of Illinois state prisons are policymaking officials and therefore can be fired by the governor on the basis of their political affiliation. Riley v. Blagojevich, 04-3085, 2005 U.S. App. Lexis 20631 (7th Cir.). [2005 JB Nov]
Gang members had no First Amendment right to belong to gangs, so their transfer to the "highest security" prison in Illinois, even if in "retaliation" for gang activity, was not improper. Federal appeals court reinstates, however, claims concerning whether adequate due process was provided for prisoners transferred there, and whether certain prisoners were transferred in retaliation for having pursued grievances and/or litigation concerning their conditions of confinement. Westefer v. Snyder, No. 03-3318, 2005 U.S. App. Lexis 19217 (7th Cir.). [2005 JB Oct]
Trial court improperly dismissed prisoner's lawsuit against probation officer claiming that his placement in a detention facility was a violation of his rights when there were court orders requiring that he be placed in a halfway house for his alleged probation violation. The lawsuit was not barred by the rule in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) when it only challenged his confinement in one facility instead of another, and did not challenge either the duration or fact of his confinement. Taylor v. U.S. Probation Office, No. 03-5370, 409 F.3d 426 (D.C. Cir. 2005). [N/R]
Requiring prisoner who had filed numerous frivolous grievances to have his grievances screened by a grievance coordinator for frivolousness before allowing them to be filed did not violate his First Amendment rights or deny him access to the courts. No constitutional right to "unfettered access" to prison grievance process. Walker v. Michigan Department of Corrections, #04-1347, 128 Fed. Appx. 441 (6th Cir. 2005). [2005 JB Sep]
Prisoner's lawsuit against federal prison warden reinstated on claims that his rights were violated by prohibition on him calling his stockbroker to order that stock be sold if the price started falling. Prisoner also stated a viable First Amendment claim based on refusal to allow him to buy a book on computer programming. King v. Fed. Bureau of Prisons, No. 03-2431, 2005 U.S. App. Lexis 14092 (7th Cir.). [2005 JB Sep]
Prisoner's claim for alleged mental anguish and emotional distress arising out of a dispute with correctional officials over the alleged retaliatory withholding of two pornographic magazines by the prison mail personnel could not be pursued, in the absence of physical injury under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e). He claimed that the retaliation occurred because he filed a previously lawsuit against prison employees. Geiger v. Jowers, No. 04-10299, 404 F.3d 371 (5th Cir. 2005). [N/R]
California prison regulation barring inmates from possessing sexually explicit materials does not violate either the U.S. or California Constitutions or a state statute. Snow v. Woodford, No. D043702, 2005 Cal. App. Lexis 565 (Cal. App. 4th Dist. 2005). [2005 JB Jun]
Prisoner's question to work supervisor concerning pay for prisoners laid off from prison sewing shop was not speech on a matter of public concern for which he had First Amendment protection against retaliatory action. McElroy v. Lopac, No. 03-3257, 2005 U.S. App. Lexis 5611 (7th Cir.). [2005 JB Jun]
Prison policy that barred prisoners placed in long term security unit based on their past behavior from possessing any newspapers or magazines except for religious or legal publications, and that further barred possession of family photos, was subject to First Amendment challenge. Appeals court panel overturns trial court decision upholding policy without trial. Banks v. Beard, No. 03-1245, 399 F.3d 134 (3d Cir. 2005) [2005 JB Jun]
Even if a letter from a legal advocacy group (the "Innocence Project of Minnesota") to a prisoner was protected as "legal mail," the alleged mistaken opening of the letter outside of the presence of the prisoner was not a violation of his First Amendment rights since it was an isolated incident and did not interfere with his right of access to the courts. The prison employee opening it believed that the group who sent the letter did not qualify as a legal advocacy group. Additionally, correspondence from a city police department and the North Dakota Department of Corrections was not constitutionally protected legal mail. Moore v. Schuetzle, No. A4-01-038, 354 F. Supp. 2d 1065 (D.N.D. 2005). [N/R]
Prison officials could not punish an inmate for writing a letter to a private company informing them of what he believed to be an illegal program planned at the prison which would damage its business as a supplier to the facility. The statements, while critical or unflattering, did not damage institutional security, and punishing him for their content would violate the First Amendment. Gandy v. Ortiz, No. 04-1225, 122 Fed. Appx. 421 (10th Cir. 2005). [2005 JB May]
Prisoner's federal civil rights lawsuit challenging his discipline as a violation of his First Amendment rights should not have been dismissed for failure to exhaust available administrative remedies. Federal appeals court rules that he did exhaust his administrative remedies when his appeal of his denied grievance was rejected as untimely. The Prison Litigation Reform Act's exhaustion requirement, the court holds, does not bar consideration of a prisoner's claims when his administrative appeal was denied on state law procedural grounds. Ngo v. Woodford, No. 03-16042, 2005 U.S. App. Lexis 4809 (9th Cir. 2005). [2005 JB May]
State prison's policy of opening and inspecting prisoners' legal mail outside their presence in order to detect presence of contraband, particularly anthrax, was a violation of their First Amendment rights, but defendant officials were entitled to qualified immunity. Because of the "uncertainties" created by terrorist attacks on September 11, 2001, reasonable prison officials could have been unclear about the fact that their conduct violated the prisoners' rights. Allah v. Brown, No. CIV. 02-5298, 351 F. Supp. 2d 278 (D.N.J. 2004).[N/R]
Ban on non-subscription bulk mail and catalogs was not rationally related to a legitimate penological interest and therefore violated the First Amendment, but correctional officials were entitled to qualified immunity. Prison Legal News v. Lehman, No. 03-35608, 397 F.3d 692 (9th Cir. 2005) [2005 JB Apr]
California State Department of Corrections administrative bulletin banning sexually explicit materials depicting frontal nudity did not violate a prisoner's First Amendment rights. Correctional officials properly sought to reduce sexual harassment of female guards and prevent the development of a hostile work environment and also enhance prison security. Further, depriving prisoners of such sexually explicit materials did not impose an "atypical and significant hardship" in relation to the "ordinary incidents of prison life," and was therefore not a violation of due process. Additionally, the prisoner did not successfully show a violation of equal protection rights, as he did not claim that he was treated any differently than similarly situated prisoners with respect to the possession of such materials. Munro v. Tristan, No. 03-16770, 116 Fed. Appx. 820 (9th Cir. 2004). [N/R]
New Jersey correctional officials could not implement new regulations eliminating the requirement of the presence of an emergency cart with medical equipment and supplies at the scene of executions--for the purpose of reviving the inmate in the event of last minute stays--without providing an explanation of its reasoning. Defendant officials were required to present "strong" medical evidence that the effects of the lethal injections used were irreversible. Officials would also be required to show how new restrictions on media access to and filming of executions were justified by legitimate penological, safety, and security concerns. In Re. Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. A.D. 2004). [N/R]
Prisoner's First Amendment rights were not violated by denying him receipt and possession of a racist magazine, Pagan Revival, which the inmate himself admitted contained "hatred." Censoring such publications, a federal appeals court held, was reasonably related to legitimate penological interests in institutional order and security. Lindell v. McCaughtry, No. 03-4094, 115 Fed. Appx. 872 (7th Cir. 2004). [N/R]
Prison rule prohibiting the spreading of "rumors" about prison staff members was unconstitutionally vague and was improperly used to punish a prisoner for communicating the contents of his grievance to his mother, who subsequently advertised its contents on the Internet in order to seek legal counsel for him. Cassels v. Stalder, No. CIV.A.03-0709-D-M2, 342 F. Supp. 2d 555 (M.D. La. 2004). [2005 JB Mar]
A prisoner's First Amendment claims are not excluded from the requirement in the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) prohibiting claims for mental or emotional injury in the absence of a showing of physical injury. That rule, however, while barring the plaintiff's claims for emotion or mental injury from alleged retaliation in violation of his First Amendment rights did not bar claims for nominal, compensatory, and punitive damages for the violation of his rights. Meade v. Plummer, No. 99-CV-10011, 344 F. Supp. 2d 569 (E.D. Mich. 2004). [N/R]
Notifying only the prisoner, and not the publisher, when a periodical was not delivered to a prisoner, was inadequate to protect the publisher's First Amendment rights. Federal appeals court also orders further proceedings on constitutionality of policies limiting inmates' monthly spending on publications to $30 and prohibiting gift subscriptions. Jacklovich v. Simmons, #03-3227, 2004 U.S. App. Lexis 26550 (10th Cir. 2004). [2005 JB Feb]
Iowa prisoner's claim that a correctional officer wrote a false misconduct report concerning his behavior in retaliation for his announced intention to file a grievance against him, and did so for the purpose of preventing the processing of the grievance, stated a claim for violation of First Amendment rights, so that dismissal of the claim was not warranted under 28 U.S.C. Sec. 1915(e)(2)(B). Hartsfield v. Department of Corrections, No. 04-1311, 107 Fed. Appx. 695 (8th Cir. 2004). [N/R]
Factual issues existed as to whether prison officials who transferred prisoner to administrative segregation after a behavior modification unit program was discontinued were motivated by a desire to retaliate against him for filing grievances, in violation of his First Amendment rights. Summary judgment was therefore properly denied to the defendants in the prisoner's lawsuit. Lodatao v. Ortiz, No. CIV.A. 02-2803, 314 F. Supp. 2d 379 (D.N.J. 2004). [N/R]
Prisoner stated a viable First Amendment claim when "New Afrikan" political literature confiscated from him was not subjected to established procedures for individualized review of reading materials, and he was instead punished on the basis that the literature originated from a group not "approved" by correctional officials. Shakur v. Selsky, No. 03-0050, 2004 U.S. App. Lexis 24999 (2nd Cir. 2004). [2005 JB Jan]
Indiana prisoner stated a possible claim for violation of his First Amendment rights based on claimed confiscation of anarchist pamphlets from him by correctional officers, but failed to present a claim for a violation of the Fourth Amendment prohibition against unreasonable searches and seizures or the Eighth Amendment prohibition of cruel and unusual punishment. The prisoner also asserted a viable equal protection claim on the basis of the alleged different treatment of other prisoners with similar political materials in their possession. Smith v. Carrasco, No. 3:04-CV-0010 AS, 334 F. Supp. 2d 1094 (N.D. Ind. 2004). [N/R]
Prisoner's allegations that officers confiscated and destroyed his property, threatened to transfer him, and assaulted him in retaliation for his filing of grievances were sufficient to state a claim for violation of his First Amendment rights. Appeals court rejects the "Catch 22" argument that no claim was stated because the prisoner was undeterred by these actions from continuing to assert his First Amendment rights. Rhodes v. Robinson, No. 03-15335 380 F.3d 1123 (9th Cir. 2004). [2004 JB Dec]
Appeals court orders further proceedings on prisoner's claim that he was falsely charged and disciplined for misconduct in retaliation for prior grievances and lawsuits against a correctional officer. Summary judgment for defendant officer was improper without considering another inmate's affidavit concerning officer's alleged retaliatory intent, and the issue of proximity in time between prisoner's exercise of his First Amendment rights and the alleged retaliatory action. Muhammed v. Close, #02-1043, 379 F.3d 413 (6th Cir. 2004). [2004 JB Dec]
Prisoner failed to show that his placement in administrative segregation after he finished a period of disciplinary segregation was in retaliation for his exercise of his First Amendment rights in complaining of prison officials' alleged racism. The stated reasons for placing the prisoner, who had previously been convicted of drug trafficking activities within the prison, in administrative segregation were within the scope of established policy. Hall-Bey v. Hanks, No. 02-4050, 93 Fed. Appx. 977 (7th Cir. 2004). [N/R]
Federal appeals court orders further proceedings on prisoner's claim that the confiscation of his word processor and radio, after he submitted letters critical of the prison for mailing, were retaliatory for his exercise of his First Amendment rights. Confiscation, since it was carried out under the authority of a prison administrative directive, was not a random, unauthorized action for which the availability of adequate post-deprivation state remedies would bar a federal due process claim. Allen v. Thomas, No. 03-21208, 2004 U.S. App. Lexis 20953 (5th Cir. 2004). [2004 JB Nov]
Regulations banning gift subscriptions of publications to prisoners and limiting their own purchase of such subscriptions was rationally related to legitimate interests in rehabilitation and institutional security. Rice v. State of Kansas, No. 89,759, 95 P.3d 994 (Kan. 2004). [2004 JB Nov]
While prisoner successfully proved that prison security director improperly put him in segregation in retaliation for filing "too many" complaints and grievances, in violation of his First Amendment rights, under the Prison Litigation Reform Act, he was not entitled to an award of compensatory damages in the absence of physical injury, but only $1 in nominal damages. Appeals court also upholds the decision not to award punitive damages, since the defendant acted out of "frustration," rather than with an "evil motive," and upholds application of PLRA section to limit attorneys' fee award in the case to $1.50. Royal v. Kautzky, No. 02-3446, 375 F.3d 720 (8th Cir. 2004). [2004 JB Oct]
Federal appeals court rules that trial judge lacked an adequate factual basis to find that a ban by Congress on the use of federal funds to distribute sexually explicit publications to prisoners was "reasonably related" to a legitimate governmental interest in rehabilitation. Ramirez v. Pugh, No. 02-2101, 2004 U.S. App. Lexis 16619 (3d Cir. 2004). [2004 JB Oct]
Alabama prisoner could not pursue declaratory judgment action for the purpose of obtaining a determination that a program allowing inmates to view movie videos they were allowed to borrow from a correctional facility library as an incentive for good behavior does not violate federal copyright law. The correctional facility discontinued the program because of a concern that it might violate copyright law. The court found that the prisoner suffered no "injury" from the suspension of the program giving him standing to pursue the claim, and the possibility that the program violated copyright laws did not subject the prisoner himself to any possible litigation, nor did he himself have any interest in the copyrights of the movies in question. Lane v. Sticker, No. 2011161, 876 So. 2d 469 (Ala. Civ. App. 2003). [N/R]
Prison guard was not entitled to qualified immunity on the claim that he filed a false misconduct ticket against a prisoner in retaliation for his "jailhouse lawyering" activity. Law prohibiting such retaliation for exercise of First Amendment rights was clearly established. Scott v. Churchill, No. 03-2427, 2004 U.S. App. Lexis 15269 (6th Cir.). [2004 JB Sep]
Federal appeals court overturns dismissal of prisoner's claim that confiscation of picture postcards from his cell might be violative of his First Amendment rights, in light of lack of evidence of the purported justification for the action. Injunction against policy preventing prisoner from receiving clippings from periodical from a correspondent upheld, but modified to clarify that the facility could still impose reasonable restrictions on the form and number of such clippings. Lindell v. Litscher, No. 03-2651, 2004 U.S. App. Lexis 14833 (7th Cir.). [2004 JB Sep]
Correctional policy denying a sex-offender contact visits with minors, including family members, did not violate his First Amendment right to freedom of association, and was rationally related to legitimate interests in promoting institutional security and the safety of children. Garber v. Pennsylvania Department of Corrections Secretary, 851 A.2d 222 (Pa. Cmwlth. 2004). [2004 JB Sep]
State correctional officers were not entitled to a preliminary injunction against discipline of them for associating with Outlaws Motorcycle Club, a group alleged to be a criminal gang. The directive prohibiting officers from conduct constituting or giving rise to the appearance of conflict of interest, engaging in unprofessional or illegal behavior that could reflect negatively on the Department, and acting in ways jeopardizing institutional security or the health, safety, or welfare of the staff or inmates, which was the basis for the discipline, was not overbroad under the First Amendment. Piscottano v. Murphy, 317 F. Supp. 2d 97 (D. Conn. 2004). [N/R]
New York prisoner's claim that correctional employees deliberated tampered with his mail, including both incoming and outgoing legal, personal, and political mail, without cause or justification, adequately asserted a claim for violation of his First Amendment rights. Nash v. McGinnis, 315 F. Supp. 2d 318 (W.D.N.Y. 2004). [N/R]
Prisoner in psychiatric housing unit asserted a valid claim for unlawful retaliation against him for reporting that a correctional officer exposed his penis to him and made vulgar remarks, and then falsely accused him of misconduct after he refused to refrain from reporting the incident. Austin v. Terhune, #02-16546, 367 F.3d 1167 (9th Cir. 2004). [2004 JB Aug]
Former prisoner could pursue claims for nominal damages for alleged violations of his First Amendment rights while incarcerated despite provision in Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) preventing him from pursing claims for compensatory damages in the absence of physical injury. Further, the fact that the prisoner had been released did not make his claim moot, as nominal damages are past damages. McDaniels v. McKinna, #03-1231, 96 Fed. Appx. 575 (10th Cir. 2004). [N/R]
Prisoner's inclusion of a false and irrelevant "rumor" concerning the sexual conduct of a female guard in a grievance he filed against her for allegedly failing to inform him that it was time to eat was not protected speech under the First Amendment. Hale v. Scott, #03-1949, 2004 U.S. App. Lexis 11581 (7th Cir. 2004).[2004 JB Jul]
Correctional officers were not entitled to qualified immunity from excessive force claim by previously brain-damaged pre-trial detainee who they allegedly caused severe facial and head injuries in the course of a struggle to apply restraints to his wrists after he refused to get on the water-covered floor of his cell. Detainee's behavior of banging on cell walls and doors and tossing toilet water around his cell to "protest" not being allowed out of his cell, however, was not "protected speech," so that detainee's First Amendment retaliation claim was dismissed. Simms v. Hardesty, 303 F. Supp. 2d 656 (D.Md. 2003). [N/R]
California prison ban on mail containing printed-out downloads from the Internet violated the First Amendment. Clement v. California Department of Corrections, #03-15006, 2004 U.S. App. Lexis 7576 (9th Cir.). [2004 JB Jun]
Texas prisoners, members of the Church of Christ, did not show that Texas correctional officials violated their rights to religious freedom by providing a chaplain who they had doctrinal differences with. Prisoner who allegedly caused a disturbance and walkout by 50 prisoners at services by reading a statement denouncing the chaplain did not show that he was unlawfully transferred in retaliation for exercising his First Amendment rights. Freeman v. Texas Department of Criminal Justice, #03-10443, 2004 U.S. App. 8998 (5th Cir). [2004 JB Jun]
Prisoner's claim that he was charged with a disciplinary violation in retaliation for leading a religious group meeting which discussed whether the group should file a grievance against a prison employee adequately stated a claim for unlawful retaliation. Samuels v. Hammond, #03-30589, 78 Fed. Appx. 314 (5th Cir. 2003). [N/R]
Federal court properly rejected prisoner's federal civil rights claim since the First Amendment rights of inmates to receive commercial bulk mail was not "clearly established" when he was refused receipt of a "Green Lantern" comic book, so that prison officials were entitled to qualified immunity. Court upholds rejection of other magazines with sexual ads or "role-playing content." Further proceedings ordered, however, on state law free speech claims. Bahrampour v. Lamper, #02-3519, 356 F.3d 969 (9th Cir. 2004). [2004 JB May]
Pennsylvania prisoner was not entitled to a judicial order requiring the state Board of Probation and Parole to grant him parole. Despite his claim that a sentencing judge and prosecutor sent unfavorable recommendations to the Board in retaliation for his filing of a successful federal habeas petition, the Board followed established procedures in denying parole, and the denial was justified by the reasons given. Burkett v. Frank, 841 A.2d 646 (Pa. Cmwth. 2004). [N/R]
Federal appeals court reinstates prisoner's claim that he was determined to be a prison gang member in retaliation for his jailhouse lawyering activity in pursuing grievances on behalf of himself and other inmates, in violation of his First Amendment rights. Evidence used had been found insufficient during two prior investigations of suspected gang affiliation. Bruce v. Ylst, #01-17527, 351 F.3d 1283 (9th Cir. 2003). [2004 JB Mar]
Federal appeals court rules that prison's requirement that books received from vendors have special shipping labels attached or else not be delivered to prisoners unduly burdened inmates' First Amendment rights. Policy was unreasonable and arbitrary, as it was applied to packages of books and other publications but not to other packages that could just as easily contain contraband. Ashker v. California Department of Corrections, #02-17077, 350 F.3d 917 (9th Cir. 2003). [2004 JB Mar]
Wisconsin prisoner failed to show that transfer to another facility was a violation of his First Amendment rights and retaliatory for his participation in prior lawsuits against prison employees, as there was no evidence that those who authorized the transfer knew of these prior lawsuits. Johnson v. Kingston, 292 F. Supp. 2d 1146 (W.D. Wis. 2003). [N/R]
Prison security and rehabilitation goals were not sufficient to justify a complete ban on gifts of periodicals to prisoners. Rice v. State of Kansas, No, 89,759, 76 P.3d 1048 (Kan. App. 2003). [2004 JB Feb]
Trial court improperly dismissed prisoner's lawsuit claiming that prison officials violated his First Amendment and due process rights by transferring him to administrative segregation in a special housing unit after his appeal of his rule violation resulted in an order for a new hearing. Jackson v. Carey, No. 01-17126, 2003 U.S. App. LEXIS 26264, (9th Cir. 2003).[2004 JB Feb]
Barring prisoners from making phone calls in languages other than English without prior authorization is not a violation of First Amendment rights. Boriboune v. Litscher, No. 03-1747 , 2003 U.S. App. Lexis 26540 (7th Cir.). [2004 JB Feb]
Prisoner could not assert a claim for denial of access to the courts based on refusal to allow him to visit the law library, in the absence of a showing of actual injury in a pending case. He could still pursue, however, his claim that he was denied access to legal materials in retaliation for filing grievances, since he had alleged a "chronology of events from which retaliation may plausibly be inferred." Westbrook v. Treon, #03-10004, 78 Fed. Appx. 970 (5th Cir. 2003). [N/R]
Prison officials actions in preventing an inmate from corresponding with a former prisoner with whom he had formed a romantic attachment did not violate his rights. Nasir v. Morgan, #01-2519 , 2003 U.S. App. Lexis 24013, 350 F.3d 366 (3rd Cir.) [2004 JB Jan]
Correctional rule barring prison employees from non-work-related contact with prisoners, parolees, probationers, and their relatives and visitors did not violate employees' rights. Akers v. McGinnis, #01-18, 2003 U.S. App. Lexis 24155, 352 F.3d 1031 (6th Cir.). [2004 JB Jan]
Trial court improperly granted defendant correctional officials' motion for summary judgment on prisoner's claim that they retaliated against him for having successfully settled a prior lawsuit against correctional officers by transferring him to a maximum security facility and imposing discipline upon him. There was a genuine issue of material fact as to whether such retaliation was a "substantial factor" in the actions taken. Bennett v. Goord, No. 01-0184, 343 F.3d 133 (2nd Cir. 2003). [N/R]
Prisoner's failure to exhaust available administrative remedies for the alleged confiscation of his property required the dismissal without prejudice of his federal civil rights claim alleging that the seizure of his sexually explicit materials violated his First Amendment rights. McMillian v. Litscher, No. 99-3029, 72 Fed. Appx. 438 (7th Cir. 2003). [N/R]
Correctional officers accused of retaliation against prisoner for supporting another inmate's excessive force claim by pursuing disciplinary charges against prisoner would not be liable for violation of his First Amendment rights if they could demonstrate "dual motivation," showing that even without their "improper" motivation, the prisoner would have been subjected to the same actions. Scott v. Coughlin, #99-0365, 344 F.3d 282 (2nd Cir. 2003). [2003 JB Dec]
Refusal of West Virginia prison officials to allow prisoner to receive or possess certain books found to be obscene did not violate his First Amendment or due process rights. Policy applied advanced legitimate penological interests in security and rehabilitation. Cline v. Fox, 266 F. Supp. 2d 489 (N.D.W. Va. 2003). [2003 JB Nov]
Federal court strikes down as unconstitutional Arizona statute prohibiting prisoners from communicating with Internet websites through the mails or otherwise or receiving mail from them. Court finds that prohibition is not reasonably related to a legitimate penological purpose and that other statutes and policies already prohibit communication involving fraud, harassment of victims, communication with minors, and other purported purposes of the ban on communication with Internet service providers. Canadian Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz. 2003). [2003 JB Nov]
African-American prisoner's claim that parole board chairman improperly made threats against him in violation of his First Amendment rights and constituting racial discrimination seven years before his parole was revoked was untimely and barred by the statute of limitations. Norwood v. Michigan Department of Corrections, No. 02-1779, 67 Fed. Appx. 286 (6th Cir. 2003). [N/R]
Prisoner could pursue claims against some nurses for alleged inadequate medical care and retaliation against him for filing of an earlier lawsuit, but not against one nurse against whom he had failed to exhaust available administrative remedies concerning retaliation claim. The prisoner's grievance only had to allege misconduct by the nurses and did not need to plead all the elements of a particular legal theory. Burton v. Jones, No. 01-1078, 321 F.3d 569 (6th Cir. 2003). [2003 JB Oct]
Prisoner could state a claim for retaliatory transfer for having filed a grievance against an officer based on a sequence of events from which a retaliatory motive could be inferred, without proving motivation in the complaint. Illinois prisoner had a protected liberty interest in continued participation in work release program which could not be ended without due process. Segreti v. Gillen, 259 F. Supp. 2d 733 (N.D. Ill. 2003). [2003 JB Oct]
Prison policies prohibiting the receipt of free or gift subscriptions to publications, preventing some inmates in a lower offender classification from purchasing publications, and limiting other inmates to spending no more than $30 per month to purchase publications did not violate prisoners' First Amendment or due process rights and were rationally related to legitimate interests in controlling, managing, and tracking property in order to identify prohibited activities, promote institutional order through privileges and incentives, and making sure there were sufficient assets to collect inmates' other financial obligations, such as restitution and child support. Failure to notify publishers when prisoners were denied receipt of mailed publications did not violate the publishers' constitutional due process rights. Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003). [N/R]
Prisoner's discipline for stating in a filed grievance that a female correctional officer was rumored to be having sex with male correctional officers did not violate his First Amendment rights. The manner in which the statement was made insinuated that the statement was true and the prisoner had no actual evidence as to the truth of the rumor. Hale v. Scott, 252 F. Supp. 2d 728 (C.D. Ill. 2003). [2003 JB Aug]
U.S. Supreme Court upholds Michigan prison rules limiting visits by children, non-family members, former prisoners, or for prisoners who commit two violations of substance abuse rules. Legitimate penological interests override any First Amendment right to association claim. Overton, Director, Michigan Department of Corrections v. Bazzetta, #02-94, 123 S. Ct. 2162 (2003).
Recipients of collect calls from Ohio inmates could pursue their claim against counties and telecommunications providers that rates were so unreasonably high as to violate their equal protection right to fundamental freedom of speech and association. Claims against the State of Ohio were barred by Eleventh Amendment immunity, and anti-trust and telecommunications statute claims were not viable. McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988 (S.D. Ohio 2003).
A prison librarian's alleged filing of an "erroneous" evaluation of a prisoner's performance in his work assignment after the prisoner filed a grievance over an earlier evaluation was not unlawful retaliation in violation of the prisoner's First Amendment rights. The librarian had submitted other negative evaluations of the prisoner's work performance before he ever filed a grievance. Keenan v. Daniel, #02-2059, 63 Fed. Appx. 180 (6th Cir. 2003).[N/R]
Prisoner's claim that an officer intentionally deprived him of one issue of a magazine to which he subscribed because the officer disliked the magazine's views, and lied about doing so, was sufficient to state a First Amendment free speech claim. Prisoner did not, however, state a valid claim for violation of his right to religious freedom, since, while the Pagan Revival magazine purported to have a religious theme, he did not claim that the magazine had anything to do with his religious practices or that his failure to receive it interfered with the exercise of his religion. Lindell v. Doe, #01-2527, 58 Fed. Appx. 638 (7th Cir. 2003). [N/R]
Correctional officer allegedly forced to quit after he reported a co-worker's misconduct in playing cards with a group of inmates stated a possible claim for violation of his First Amendment rights based on tolerance of supervisors of harassment of him for making the report, since tolerance of such conduct was a "matter of public concern." Baron v. Hickey, 242 F. Supp. 2d 66 (D. Mass. 2003). [N/R]
Jail officials did not violate prisoner's First Amendment rights by disciplining him for the use of insolent and threatening language in grievances that he filed. "True threats" are not protected at all under the First Amendment, and the purpose of the grievance procedure was to bring issues to the attention of jail authorities, not to provide a forum to make "disparaging, degrading" or abusive comments about jail staff members. In Re Parmelee, No. 47231-3-I, 63 P.3d 800 (Wash. App. 2003). [2003 JB Jun]
Prisoner's removal from supervised release program for activities advocating the legalization of marijuana enjoined by federal trial court. Court finds that activities, including speaking to the press, passing out literature outside a courthouse, running a website, and running television commercials were all lawful actions protected by the First Amendment. Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302 (D.N.J. 2003). [2003 JB Jun]
Ban on possession of electric or electronic instruments in federal prisons (except for use in religious activities) did not violate prisoners' First Amendment rights. Bureau of Prisons acted reasonably in interpreting a statute barring the use of appropriated federal funds "for use or possession" of such instruments as allowing a prohibition on the possession of the items. Kimberline v. U.S. Department of Justice, No. 01-5387, 318 F.3d 228 (D.C. Cir. 2003). [2003 JB May]
Pennsylvania State Department of Corrections policy which barred inmate receipt of incoming publications found by a committee of employees to contain obscene materials did not violate prisoners' rights under free speech guarantees of the Pennsylvania state Constitution, Article 1, sec. 7, since there is no constitutional protection for obscene materials. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002). [N/R]
Prison officials failed to meet their burden of showing that they would have imposed the same punishment on a prisoner regardless of their alleged retaliation against him for exercising his constitutionally protected right to use the prison grievance system to complain about alleged staff racism. Gayle v. Gonyea, No. 01-0218, 313 F.3d 677 (2nd Cir. 2002). [2003 JB Apr]
Prison's requirement that books received from vendors have special shipping labels attached or else not be delivered to prisoners found to unduly burden inmates' First Amendment rights. Federal court finds policy was arbitrary and unreasonable and that legitimate security interests in preventing introduction of contraband were adequately protected by other existing policies. Ashker v. California Department of Corrections, 224 F. Supp. 2d 1253 (N.D. Cal. 2002). [2003 JB Feb.]
Federal death row inmate could pursue civil rights action concerning whether prison officials violated his First Amendment rights by restricting his access to the press. The case presented genuine issues of whether the restrictions were based on his death-row status and a desire to suppress his views, rather than to serve legitimate penological interests, and whether prison officials imposed the restrictions in a content neutral fashion. Hammer v. Ashcroft, #01-2898, 42 Fed. Appx. 861 (7th Cir. 2002). [N/R]
Virginia correctional policy limiting prisoner's incoming general purpose mail to one ounce per envelope did not violate prisoners' First Amendment rights and served legitimate penological interests in reducing avenues for smuggling contraband into the prisons. Policy did not apply to legal, special purpose, educational correspondence, or mail from vendors or governmental agencies. Hall v. Johnson, 224 F. Supp. 2d 1058 (E.D. Va. 2002). [2003 JB Feb.]
Magazines sent to prisoner through the mails were obscene despite not showing sexual penetration when they did depict simulated sexual activity and discharged sexual fluids, but factual issues remained as to whether prison mail room employees improperly censored or returned to sender non-obscene letters and photographs sent to inmate by individual female correspondent and whether some materials sent to him were improperly "converted" for their "own personal use." Elliott v. Cummings, #01-3317, 49 Fed. Appx. 220 (10th Cir. 2002). [2003 JB Feb.]
State prisoner could pursue First Amendment claim asserting that he was subjected to a transfer to a facility farther from his home in retaliation for writing letters to newspapers which were critical of the prison system. State sovereign immunity under Pennsylvania law was no defense to his federal civil rights lawsuit. Owens v. Shannon, 808 A.2d 607 (Pa. Cmwlth 2002).[N/R]
Prisoner could pursue his claim that correctional officials retaliated against him for his participation in African/African American Cultural Coalition and his pursuit of grievances and lawsuits, even if he had no independent constitutional right relating to the complained of specific deprivations. Prisoner failed, however, to show that defendants' motives were retaliatory or used excessive force against him. Cunningham v. O'Leary, #00-3729, 40 Fed. Appx. 232 (7th Cir. 2002). [2003 JB Jan]
Prisoner stated a claim for unlawful retaliation in violation of his First Amendment rights by asserting that he was told that he was removed from the prison laundry because he wrote to his congressional representative. He also stated a possible equal protection claim by asserting that he had received more severe discipline for a sexual incident because of his sexual orientation. Federal appeals court orders further proceedings as to whether plaintiff prisoner exhausted available administrative remedies on those claims. Feaster v. U.S. Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15 (2nd Cir. 2002). [N/R]
New York prisoner stated a claim for impermissible retaliation against him for protected First Amendment activity by alleging that he was disciplined because he circulated a petition requesting an investigation of a correctional officer's alleged "abusive conduct." Farid v. Goord, 200 F. Supp. 2d 220 (W.D.N.Y. 2002). [2002 JB Oct]
Federal appeals court orders further proceedings on prisoners' challenge to policy preventing them from viewing movies rated R or NC-17. Trial court, in rejecting prisoners' First Amendment claim, could not just rely on "common sense," but instead needed to do a "thorough analysis" of the relevant penological interest and the prohibition's relationship to it. Wolf v. Ashcroft, #01-1869, 2002 U.S. App. Lexis 14852 (3rd Cir. 2002). [2002 JB Sep]
California prisoner's role as chairman of an Inmate Advisory Council established by state regulations was a First Amendment protected activity; appeals court overturns summary judgment for officers accused of issuing false administrative warnings against prisoner in retaliation for his activities. Summary judgment upheld, however, for officers who filed disciplinary charges against prisoner and hearing officer who convicted prisoner, even though particular disciplinary finding was subsequently overturned by the warden. McQuillion v. McKenzie, #00-15505, 35 Fed. Appx. 547 (9th Cir. 2002).[2002 JB Sep]
Prison policy prohibiting prisoners from receiving publications, such as books and magazines, as gifts, violated their First Amendment rights, but federal appeals court rules that the law on this subject was not "clearly established" until it had upheld a similar ruling in another case on appeal, entitling defendant prison officials to qualified immunity from liability. Sorrels v. McKee, #01-35222, 287 F.3d 1213 (9th Cir. 2002). [2002 JB Aug]
Federal prisoner stated a possible claim against the Bureau of Prisons for violation of federal Privacy Act based on a claim that he was transferred and reclassified as a "special offender" based on false accusations of misconduct against him in alleged retaliation for his exercise of his First Amendment rights. Toolasprashad v. Bureau of Prisons, #00-5424, 286 F.3d 576 (D.C. Cir. 2002). [2002 JB Jul]
Prison's maintenance of different policies on conditions of confinement of death row prisoners and prisoners serving non-capital sentences did not constitute First Amendment retaliation against death row prisoners where the differing policies and treatment did not depend on whether the prisoner facing death had appealed their sentence. Further, while this difference in treatment may have made life "more unpleasant" for those on death row, the conditions were not so different from those faced by other inmates as to constitute cruel and unusual punishment or serve as a deterrent against filing law suits. Apanovitch v. Wilkinson, #01-3558, 32 Fed. Appx. 704 (6th Cir. 2002). [N/R]
299:165 Federal prison rule banning possession of electronic instruments did not violate prisoners' First Amendment rights, but court orders further proceedings on claim that the Bureau of Prisons improperly allowed a "religious-use" exception to the rule, discriminating in favor of religion. Kimberlin v. U.S. Dept. of Justice, 150 F. Supp. 2d 36 (D.D.C. 2001).
298:149 Officer was not entitled to qualified immunity on prisoner's claim that he retaliated against him for complaining about his threats to harm him by telling gun tower to shoot prisoner if he moved and then subjected prisoner to discipline for not returning to his cell. Johnson v. Freeburn, 144 F. Supp. 2d 817 (E.D. Mich. 2001).
297:133 Michigan prison officials had discretion to deny television network's request for an on-camera interview with prisoner Dr. Jack Kevorkian, assisted suicide advocate. American Broadcasting Companies, Inc. v. Mich. Dept. of Corrections, No. 228757, unpublished, (Mich. App. June 1, 2001).
297:133 Reporter could not be barred from access to county jail based on the critical content of a prior article she wrote. The Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001).
297:131 Corrections officers subject to discipline for "inattentiveness" during training on "gays and lesbians" in the workplace were improperly punished for silently reading bibles, when other officers, inattentive or reading non-religious materials, were not similarly punished. Altman v. Minn. Dept. of Corrections, #00-1168 and 00-1489, 251 F.3d 1199 (8th Cir. 2001).
295:100 Correctional officers' alleged statements labeling a prisoner a "rat" and an "informant," based on his complaints that an officer was allegedly seeking to incite another prisoner to attack him in retaliation for successfully appealing a disciplinary order did not suffice to constitute unconstitutional retaliation for his exercise of his First Amendment rights. Dawes v. Walker, No. 99-252, 239 F.3d 489 (2nd Cir. 2001).
294:88 Prisoner did not need to exhaust administrative remedies before pursuing federal civil rights lawsuit for particular, individualized instance of alleged retaliation by correctional officer; inmate claimed officer filed disciplinary charges against him because of his complaints to prison authorities about the officer's alleged misconduct. Lawrence v. Goord, No. 99-0202, 238 F.3d 182 (2nd Cir. 2001).
294:83 U.S. Supreme Court rules that prisoners do not have a special First Amendment right to provide legal assistance to fellow inmates. Shaw v. Murphy, No. 99-1613, 121 S. Ct. 1475 (2001).
293:73 Washington state prison officials were entitled to qualified immunity from money damages for barring receipt of newsletter containing the names of current
prison employees out of concern for employees' safety; qualified immunity, however, did not properly bar claims for declaratory and injunctive relief. Prison Legal News v. Washington State Dept. of Corrections, #00-35095, 2001 U.S. App. LEXIS 5165.
293:72 Oregon prison rule prohibiting prisoners from receiving non-profit organization's newsletter about "prison legal news" because it was sent as bulk "standard rate" mail violated the First Amendment rights of both prisoners and the publisher of the newsletter. Prison Legal News v. Cook, No. 99-36084, 238 F.3d 1145 (9th Cir. 2001).
293:67 California prison rule prohibiting the receipt, through U.S. mail, of Internet generated material, including e-mail, was rationally related to prison's legitimate security concerns; appeals court overturns order allowing prisoner to receive printouts of e-mails sent to his internet web page, created via an arrangement with an outside company. Collins, In Re, 86 Cal. App. 4th 1176, 104 Cal. Rptr. 2d 108 (2001).
292:56 UPDATE: Prison officials adequately showed that there were legitimate security concerns about a prisoner's attempt to form an inmate "legal defense center"; no injunction requiring permitting the group on First Amendment grounds was justified. Nicholas v. Miller, 109 F. Supp. 2d 152 (S.D.N.Y. 2000).
293:72 N.Y. prisoner awarded $25,000 in compensatory damages and $20,000 in punitive damages against correctional officer who allegedly found him guilty of a disciplinary infraction in retaliation for his participation in an inmate grievance resolution committee. Maurer v. Patterson, 197 F.R.D. 244 (S.D.N.Y. 2000).
289:14 Prisoner could pursue federal civil rights lawsuit over loss of his prison job which allegedly resulted from officers pursuing false disciplinary charges against him after he filed a complaint against an officer; despite the lack of a property or liberty interest in his job assignment, prisoner's equal protection (racial discrimination) and retaliation claims were not barred. DeWalt v. Carter, No. 98-2415, 224 F.3d 607 (7th Cir. 2000).
287:163 Even if prisoners' lawsuit was the "catalyst" causing New Jersey to alter the application of a statute denying prisoners access to pornographic materials, they were not entitled to an award of attorneys' fees once an appeals court ruled that the statute did not violate their rights; court finds an attorneys' fee award on a "catalyst" theory would violate the Prison Litigation Reform Act. Waterman v. Farmer, 84 F. Supp. 2d 579 (D.N.J. 2000).
277:11 Correctional officer violated prisoner's First Amendment rights by placing him in administrative segregation for three days in retaliation for filing grievances against him; appeals court rules that nominal damage award of $1 was inadequate, and that trial court should increase this and also consider awarding punitive damages against officer. Trobaugh v. Hall, #98-4031, 176 F.3d 1087 (8th Cir. 1999).
279:40 UPDATE: Federal appeals court rules that Arizona county jail system's policy prohibiting the possession of all material depicting nudity, including such magazines as Playboy was reasonably related to legitimate penological interests in protecting employees and inmates against sexual harassment or assault. Mauro v. Arpaio, No. 97-16021, 188 F.3d 1054 (9th Cir. 1999).
280:51 Disciplining inmate law clerk for writing letter to another prisoner containing legal advice violated law clerk's First Amendment rights. Murphy v. Shaw, No. 97- 35989, 195 F.3d 1121 (9th Cir. 1999).
281:67 Prisoner is awarded $4,221.40 against two officers on his claim that they imposed disciplinary sanctions on him, removed him from his job in the mess hall, and transferred him to another facility in retaliation for his complaints about prisoner work schedules which arguably violated state law limiting work hours. Gaston v. Coughlin, 81 F. Supp. 2d 381 (N.D.N.Y. 1999).
283:102 Prisoner's First Amendment right of association created an arguable claim to form a prisoners' "legal defense center," and trial court should not have granted prison officials who denied this request summary judgment without engaging in a detailed analysis of the functions that this group would have.Nicholas v. Miller, #98-2768, 189 F.3d 191 (2nd Cir. 1999).
284:120 Female prisoner and her husband, who was allowed to attend the birth of their child after filing a federal civil rights lawsuit, were prevailing parties entitled to $5,743.67 in attorneys' fees and costs; hourly fee limits of Prison Litigation Reform Act did not apply since the husband was not a prisoner; lawsuit claimed denial was based on prisoner giving newspaper interview regarding prison conditions. Turner v. Wilkinson, 92 F. Supp. 2d 697 (S.D. Ohio 1999).
285:135 Wisconsin appeals court rules that a state notice of claim statute was not an "administrative remedy" that a plaintiff prisoner was required to "exhaust" before proceeding with his federal civil rights lawsuit, filed in state court, challenging the exclusion of all material containing nudity or pornography from state prisons. Ledford, State Ex Rel., v. Cir Ct. for Dane County, No. 99-0939-W, 599 N.W.2d 45 (Wis. App. 1999).
277:11 Correctional officer violated prisoner's First Amendment rights by placing him in administrative segregation for three days in retaliation for filing grievances against him; appeals court rules that nominal damage award of $1 was inadequate, and that trial court should increase this and also consider awarding punitive damages against officer. Trobaugh v. Hall, #98-4031, 176 F.3d 1087 (8th Cir. 1999).
[N/R] Trial court should have considered whether correctional officers would have taken the same actions against prisoner in the absence of a retaliatory motive when considering prisoner's First Amendment claim. Davidson v. Chestnut, No. 98-2853(L), 193 F.3d 144 (2nd Cir. 1999).
271:100 Prison policy banning inmate possession of music tapes with "parental warning" label concerning explicit lyrics did not violate prisoners' First Amendment rights. Herlein v. Higgins, No. 98-2271, 172 F.3d 1089 (8th Cir. 1999).
274:147 Correctional officer who flew Nazi flag at his home off-duty was properly reinstated in job when no actual harm was shown in his workplace and his evaluations were outstanding. Arbitration bet. N.Y. St. Law Enf. Off. Union and New York, #82571, 694 N.Y.S.2d 170 (A.D. 1999).
266:28 Transfer of prisoner to another facility in retaliation for his correspondence with newspaper reporter, participation in pre-authorized newspaper interview, and activities as president of authorized advocacy group for lifer prisoners was improper; prisoner entitled to damages. Castle v. Clymer, 15 F.Supp.2d 640 (E.D. Pa. 1998).
267:37 Prison chaplain's conversations with prison official outside his chain of command concerning decision to have someone else, rather than him, tutor an illiterate prisoner was not protected First Amendment speech. Button v. Kibby-Brown, #97-2832, 146 F.3d 526 (7th Cir. 1998).
267:37 Federal appeals court rules that prisoner on death row, convicted of murdering police officer, was entitled to injunction against enforcement of rule prohibiting him from carrying on "business or profession" of writing articles and books; prison allowed another inmate to publish and promote a novel, and did not show that plaintiff prisoner's writings burdened prison resources or threatened security; special scrutiny to prisoner's legal correspondence was improper. Abu-Jamal v. Price, # 96-3756, 154 F.3d 128 (3rd Cir. 1998).
267:44 Update: appeals court, acting en banc, overturns panel decision that rule prohibiting prisoners from threatening prison employees with legal redress during confrontations was facially invalid under the First Amendment; prisoner could not facially challenge rule when his disciplinary conviction for violation of the rule had not been set aside. Clarke v. Stalder, #96-30313, 154 F.3d 186 (5th Cir. 1998).
270:84 Prison employee's demands for a personal security guard to protect him did not involve a matter of public concern entitling him to protection, under the First Amendment, from firing in alleged retaliation for raising the issue. Kohl v. Smythe, 25 F.Supp.2d 1124 (D. Hawaii 1998).
270:84 Correctional officer's criticism, to inmate, of other officer's conduct was proper grounds for his termination; any First Amendment interest of officer was outweighed by strong interest of correctional department in safe and efficient running of prison. Dept. of Corrections v. Derry, 510 S.E.2d 832 (Ga. App. 1998).
[N/R] Warden's statements about corruption and security problems in prison were protected speech under the First Amendment. Campbell v. Arkansas Dept. of Correction, #98-1161, 155 F.3d 950 (8th Cir. 1998).
259:104 Rule prohibiting prisoners from threatening prison employees with legal redress during confrontational situations was facially invalid under the First Amendment, federal appeals court panel rules; rehearing by full appeals court granted. Clarke v. Stalder, 121 F.3d 222 (5th Cir.), rehearing en banc granted, 133 F.3d 940 (5th Cir. 1997).
260:118 Federal appeals court rules that two jail employees were legitimately discharged by incoming sheriff based on job performance and "public perception" of job performance, rather than racial discrimination; one employee's comments to federal trial court concerning jail conditions were not protected speech under the First Amendment, since they were not made as a "concerned citizen" but based on orders from his superior. Day v. Johnson, 119 F.3d 650 (8th Cir. 1997), cert. denied, 118 S.Ct. 707 (1998).
249:134 Disciplining inmate for publishing newspaper article which could be read as advocating violence against prison employees did not violate his First Amendment rights; article was published in external newspaper with intention that it be circulated to inmate subscribers within correctional facility. Lomax v. Fiedler, 554 N.W.2d 841 (Wis. App. 1996).
251:167 Missouri prison's stay on face to face media video interviews of prisoners did not violate First Amendment; media did not have a constitutional right of access to the prison superior to that of the general public. Sidebottom v. Schiriro, 927 F.Supp. 1221 (E.D. Mo. 1996).
231:46 Update: Federal appeals court overturns injunction against transfer and double celling of former "Black Panther Party" leader; trial court erred in determining that prison officials' actions were in retaliation for his media interviews when transfer decision was made prior to date television interview took place, and transfer was justified by prisoner's own prior requests to be closer to his family. Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995).
231:43 Two federal courts uphold actions of prison officials in withholding access to literature of "Church of Jesus Christ, Christian," religious arm of the Aryan Nation, a white supremacist group. Van Dyke v. Washington, 896 F.Supp. 183 (C.D. Ill. 1995); George v. Sullivan, 896 F.Supp. 895 (W.D. Wis. 1995).
230:20 Prohibiting prisoner from corresponding with relatives in Spanish and Apache languages did not violate his constitutional rights; English-only rule was based on legitimate security concerns and hiring interpreters to translate mail would have been unduly burdensome; prison officials were, however, liable for retaliatory transfer of prisoner for filing grievances and lawsuits concerning the policy. Sisneros v. Nix, 884 F.Supp. 1313 (S.D. Iowa 1995).219:38 Prohibiting a prisoner enrolled in a therapeutic sexual offender treatment program from retaining sexually explicit fiction which he wrote did not violate his First Amendment rights, but rather was based on a legitimate goal of rehabilitation. Frink v. Arnold, 842 F.Supp. 1184 (S.D. Iowa 1994).
220:62 Federal court enjoins transfer of former "Black Panther Party" leader and placing him in double, instead of single cell; court finds probable retaliatory motive when transfer took place right after prisoner agreed to media interview and when prisoner's allegedly medical need for single cell had previously been accommodated. Pratt v. Rowland, 856 F.Supp. 565 (N.D. Cal. 1994).
222:83 Update: U.S. Supreme Court to review case granting qualified immunity to prison officials in suit inmate brought claiming that his First Amendment rights were violated when he was placed in administrative detention after he told the press he had allegedly sold marijuana to a Vice Presidential candidate. Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir. 1993), rehearing denied, 17 F.3d 1525 (D.C. Cir. 1994), cert. granted, 115 S.Ct. 929 (1995).
222:86 Prison inmate could not bring suit challenging prison policy prohibiting correctional officers from writing to the parole board on a prisoner's behalf. Harris v. Evans, 20 F.3d 1118 (11th Cir. 1994).
222:91 Prohibition on possession of gang-related materials, including newspaper articles, did not violate prisoner's constitutional rights. Bryson v. Iowa District Court, 515 N.W.2d 10 (Iowa 1994).
225:142 Transfer of prisoner seeking nomination as member of Prisoner Advisory Council did not violate his First Amendment rights or consent decree when there was evidence that prisoner was legitimately transferred for being "troublesome" and "manipulative." Hazen v. Reagen, 16 F.3d 921 (8th Cir. 1994).
226:150 Update: U.S. Supreme Court vacates grant of qualified immunity to prison officials in suit brought by inmate challenging his placement in administrative detention after he told the press he sold drugs to Vice Presidential candidate; Court orders reconsideration in light of Johnson v. Jones, reported above. Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir. 1993), rehearing denied, 17 F.3d 1525 (D.C. Cir. 1994), cert. granted, 115 S.Ct. 929 (1995), vacated, 115 S.Ct. 2552 (1995).
[N/R] Prisoner's complaint adequately stated claim for retaliation against him for filing prior grievances. Black v. Lane, 22 F.3d 1395 (7th Cir. 1994).
[N/R] Prisoner's claim that correctional employees threatened him with retaliation for using prison grievance procedures was a sufficient injury to constitute an alleged First Amendment violation. Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994).
Arbitrary restriction of reading materials to one bible without showing a need for such a restriction based on prison security is an unacceptable infringement on the prisoners' First Amendment rights. Pembroke v. Wood Co., Tex., 981 F.2d 225 (5th Cir. 1993).
Federal prison officials were entitled to qualified immunity in suit inmate brought claiming that his First Amendment rights were violated and that he was retaliated against by being placed in administrative detention after he told the press he had allegedly sold marijuana to a Vice Presidential candidate. Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir. 1993).
Regulations allowing inmates access to sexually explicit materials only in a special "reading room" was not unconstitutional. Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993).
Disciplining inmate for using the word "shit" in expressing anger toward corrections officer did not violate the First Amendment; regulation prohibiting verbal harassment of prison employees was valid. Harry v. Smith, 561 N.Y.S.2d 374 (Sup. 1990).
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