Corrections Law
for Jails, Prisons and Detention Facilities

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Homosexual & Bisexual Prisoners

     Monthly Law Journal Article: Homosexual or Bisexual Prisoners, 2009 (6) AELE Mo. L. J. 301

     A homosexual confined at a treatment and detention facility because of his designation and commitment as a Sexually Violent Person stated a claim under the Fourteenth Amendment's due process and equal protection guarantees when he alleged that a facility employee supervising him in the laundry abused him because of his sexual orientation, calling him derogatory names, encouraging other detainees to attack him, putting him in constant fear, and that the facility's rehabilitation director suspended his treatments because he complained about the abuse. Hughes v. Farris, #15-1801, 2015 U.S. App. Lexis 21169 (7th Cir.).

     The U.S. Supreme Court, by a 5-4 vote, has ruled that there is a constitutional right to same-sex marriage and that each state must also recognize such marriages legally entered into in other states. As a result, to the extent that prisoners have a constitutional right to marry, which they generally do, with very limited exceptions, that right now extends to entering into same-sex marriages. Prisons will now have to universally accommodate prisoners entering into same-sex marriages to the same extent as they now accommodate opposite sex marriages. Obergefell v. Hodges, #14-656, 2015 U.S. Lexis 4250.
     An insulin-dependent diabetic prisoner was hired to work in a public works program off the prison premises. After he experienced an incident in which he became ill from low blood sugar, he was removed from the program. He sued, claiming that the true reason for his termination was his gay sexual orientation. He claimed that officers supervising the work crews treated him differently than other heterosexual insulin-dependent diabetic inmates working on the project, taunting and harassing him. The prisoner adequately stated a claim of class-based discrimination based on sexual orientation, so that the dismissal of his lawsuit was improper. His claim was not a "class-of-one" equal protection claim barred in the context of public employment by Engquist v. Oregon Department of Agriculture, #07-474. 128 S.Ct. 2146 (2008). Davis v. Prison Health Services, #10-2690, 2012 U.S. App. Lexis 9548, 2012 Fed. App. 131P (6th Cir.).
     A correctional counselor's alleged actions of sexual harassment in staring at a prisoner for long periods of time repeatedly, and saying that he would like to engage in homosexual sex with him (i.e., that he wanted the inmate to do to him what he allegedly did to his rape victim) was not sufficiently serious to constitute an Eighth Amendment violation. There was also no evidence that the counselor's supervisor retaliated against the prisoner for becoming a Muslim by filing a false misbehavior report against him and suggesting that he fantasized about having a homosexual relationship with a male prison employee. Seymore v. Joslyn, #9:06 CV 1010, 2009 U.S. Dist. Lexis 32545 (N.D.N.Y.).
     Prisoner who was a member or associate of the Mexican Mafia gang could pursue his claim that a prison guard put him at risk of assault by gang members by telling others that he had engaged in a homosexual act. This was the case even though he had not actually been subsequently attacked as a result of the statement. The prisoner presented undisputed facts indicating that the gang did not tolerate homosexual acts, and that the guard knew of the risk of harm that making such a statement to gang members created. The court stated that this was different from cases in which prisoners' claims of a failure to protect were rejected when they were based on a speculative fear that they would later be attacked if other prisoners thought that they were a "snitch," since the alleged action here would create a known specific risk of attack. Radillo v. Lunes, 1:04-CV-5353, 2008 U.S. Dist. Lexis 82576 (E.D. Cal.).
     Juvenile facility in Hawaii ordered to take steps to remedy "pervasive" sexual, physical, and verbal abuse of lesbian, gay, bisexual, or transgender juvenile wards, and to stop, except in emergencies, using isolation as a means of "protecting" such wards against abuse and harassment. Court rejects, however, the claim that staff members violated the First Amendment rights of the juveniles by quoting from the Bible or discussing religion with them, when there was no evidence that these actions were based on the facility's policies. R.G. v. Koller, No. Civ.05-00566, 415 F. Supp. 2d 1129 (D. Hawaii 2006). Subsequent decision at 2006 U.S. Dist. Lexis 21254. [2006 JB Jun]
     Prisoner failed to exhaust his available administrative remedies, as required by 42 U.S.C. Sec. 1997e, on his claim that a correctional officer confiscated his contact lenses because he is homosexual. While he pursued grievances concerning the contact lenses, he failed to assert in those grievances that he was a homosexual or that his sexual orientation was related to the reason why the officer took the actions against him. Goldsmith v. White, No. 5:04cv72, 357 F. Supp. 2d 1336 (N.D. Fla. 2005). [N/R]
     Federal appeals court rules that if prison officials and employees actually declined to protect homosexual prisoner from repeated prison rape because of his sexual orientation, that would violate clearly established law, so that qualified immunity on that claim should be denied. Race discrimination claim dismissed for failure to exhaust available administrative remedies. Johnson v. Johnson, No. 03-10455 385 F.3d 503 (5th Cir. 2004). [2004 JB Dec]
    Homosexual prisoner did not successfully show that prison guard was deliberately indifferent to his safety in placing him with a cellmate who subsequently raped him. The plaintiff's statement to the guard that he was "nervous" about being placed in a cell with another prisoner was insufficient to show that the guard in fact knew of the risk and ignored it. Alleged three-day delay in providing medical treatment following the rape did not show inadequate medical care, in the absence of any showing that the delay caused any harm. Harvey v. California, No. 02-16539, 82 Fed. Appx. 544 (9th Cir. 2003). [N/R]
     Segregation of male homosexual inmates was justified by legitimate penological interests in prison safety and security. Preventing homosexual and heterosexual inmates from sharing cells was a rational means of preventing violence between groups and preventing homosexual inmates from sharing cells was a rational means of preventing sexual activity and spread of sexually transmitted diseases. Appeals court also upholds disparate treatment between male homosexual and female homosexual prisoners. to rational basis. Veney v. Wyche, #01-6603, 293 F.3d 726 (4th Cir. 2002). [2002 JB Nov]
     280:53 Prisoner who was assaulted three times by other inmates after assignment to a medium security housing unit when he stated that he was a bisexual failed to show that county jail had a policy or custom of assigning homosexual, bisexual or HIV-positive prisoners to medium-security unit regardless of their violent propensities. Wayne v. Jarvis, No. 97-9152, 197 F.3d 1098 (11th Cir. 1999).
     Homosexual prisoners failed to show that jail officials discriminated against them in affording opportunities to work and therefore earn recommendations for reduced sentences. Hansard v. Barrett, 980 F.2d 1059 (6th Cir. 1992).
     Homosexual inmate's lawsuit complaining that his equal protection rights were violated by alleged removal from prison bakery assignment because of homosexuality was not frivolous. Kelley v. Vaughn, 760 F.Supp. 161 (W.D. Mo. 1991).

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