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Jail and Prisoner Law Bulletin
A Civil Liability Law Publication
for officers, jails, detention centers and prisons

April, 2000 web edition

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(Published as VOLUME 2000 NUMBER 280)

Access to Courts/Legal Info
Disability Discrimination
Emotional Distress
Homosexual and Bi-Sexual Prisoners
Inmate Property
Prisoner Injury/Death
Procedural: Jury Selection
Race Discrimination
Sex Discrimination
Sexual Assault
Strip Searches
Index of Cases Cited


Disciplining inmate law clerk for writing letter to another prisoner containing legal advice violated law clerk's First Amendment rights.
            An inmate law clerk at a Montana state prison sent a letter containing legal advice to a fellow inmate. He was unable to visit the other prisoner directly because he was in the maximum security wing of the prison. He had provided legal assistance to this prisoner before and learned that his assistance had been requested in a new case in which the other prisoner had been charged with assaulting a correctional officer.
            His letter contained information that the officer had allegedly engaged in a variety of misconduct towards other prisoners, including "homo-sexual advances." He knew that the letter would be read by prison officials pursuant to prison regulations. As a result of the letter, the prisoner was "written up" and charged with violation of rules prohibiting interference with due process hearings and "insolence." He was found guilty of these offenses and given a suspended sentence of 10 days detention and received three "reclassification points."
            A lawsuit by the inmate law clerk claimed that the imposition of discipline on him under these circumstances violated the First Amendment, and abridged the right of inmates to access to the courts and to the present habeas petitions.
            The trial court granted summary judgment for the defendant correctional officials. Disagreeing, a federal appeals court found that a summary judgment should be entered in favor of the inmate law clerk on his First Amendment claim. It was undisputed that he was a law clerk and that his letter to the other prisoner contained legal advice. As applied to "legitimate law clerk correspondence," the rules applied were an "exaggerated response" to the prison's interest in security and order, and "thus impermissibly infringed" the plaintiff's First Amendment rights.
            The appeals court, having found that the plaintiff was entitled to summary judgment on his First Amendment claim, did not reach his argument that prison officials had also interfered with other prisoners' right of access to the courts. Murphy v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999).

Text: <http://www.ce9.uscourts.gov/opinions>. [Cross-reference: First Amendment].


Correctional officer whose medical condition required her to avoid a risk of harm through altercations with inmates could not perform her essential job functions which involved inmate contact; her termination was not disability discrimination.
            A female correctional officer at a hospital detention unit was in daily contact with inmates, including intoxicated detainees. She was required to admit inmates, patrol the unit, make head counts of inmates, handcuff and guard inmates, and administer breath tests. Some correctional officers engaged in these duties in the past had been injured by inmates, and one detainee had kicked this officer in the eye and injured her during a struggle.
            The officer suffered a blood clot in her leg and her doctor had her take an anti- coagulant drug. A side effect of this drug is an increased risk of hemorrhage if the patient suffers traumatic injury. She gave her supervisor a note from her doctor instructing that she "may not engage in any activity in which she may sustain injury--this could result in acute blood loss and death." She was placed on light duty as a result, and later ordered to report for a "fitness for duty" examination. Two successive evaluations indicated that she was medically unfit for her regular duty. It was later determined to be at risk of physical confrontation with inmates even while performing her "light duty" assignment.
            She was relieved of duty and she subsequently began work as a 911 police dispatcher. She sued her former correctional employer for disability discrimination under the federal Americans With Disabilities Act (ADA).
            The trial court found that the plaintiff's medical condition rendered her unable to perform the essential functions of her job, which included some inmate contact, and therefore at possible risk of physical injury. Creating a light duty job which had no inmate contact was not a "reasonable accommodation," but rather the creation of a new position with different responsibilities. It is not "reasonable accommodation" of a disability if it does not allow the employee to perform the essential functions of their job. "There was no reasonable accommodation that would have allowed plaintiff to patrol the detention center and supervise and restrain prisoners without being exposed to a risk of physical trauma."
            A person with a disability who cannot perform the essential functions of her job even with reasonable accommodation is not an "otherwise qualified" individual for their job under the ADA. Terminating them for inability to perform their regular job functions is therefore not disability discrimination. Pickering v. City of Atlanta, 75 F. Supp. 2d 1374 (N.D. Ga. 1999).


West Virginia prisoner could not recover damages from warden for emotional distress allegedly caused by newspaper's mistaken report that he had died in a prison fire; prisoner did not show that warden had anything to do with publication of the information, and Prison Litigation Reform Act barred recovery for emotional injury in the absence of any showing of physical injury.
            A West Virginia prisoner filed a federal civil rights lawsuit against the warden for damages for emotional distress he allegedly suffered as a result of his name being wrongfully printed in a local newspaper as having died in a prison fire.
            The trial court granted the defendant warden's motion to dismiss. The court noted that: 1) there was no showing of any conduct or knowledge on the part of the warden that would render him responsible for the publishing of the inmate's name in the newspaper so that the warden was entitled to qualified immunity in his personal capacity; 2) the warden, as a state employee, was entitled to absolute immunity under the Eleventh Amendment from liability in his official capacity; 3) the plaintiff prisoner showed no physical harm. Accordingly, he was barred from pursuing his claim for emotional injury suffered while in custody without a prior showing of physical injury under 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act.
            As an additional basis for dismissal, the court found that the lawsuit was filed beyond the expiration of an applicable two-year West Virginia statute of limitations. Orum v. Haines, 68 F. Supp. 2d 726 (N.D.W.Va. 1999). [Cross-reference: Prison Litigation Reform Act: Emotional Injury].


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.
            A professed bisexual prisoner incarcerated in a Georgia county jail was placed in a medium-security dormitory. He later claimed that his statement about his bisexuality was false and was based on information that such prisoners were housed in a specific unit. After his placement in this unit, he allegedly was attacked three times by other prisoners, and he claimed that these attacks caused continuing back and neck pain, limited his ability to work and function physically, and resulted in mental and emotional trauma.
            In a federal civil rights lawsuit he filed against jail officials, he claimed that there was a custom or practice of housing professed homosexual, bisexual, HIV-positive and "AIDS- positive" inmates in the same dormitory regardless of their violent propensities, and that jail officials took inadequate steps to protect him against the assaults which occurred.
            The trial court granted summary judgment to the defendant jail officials. The appeals court found that the plaintiff prisoner failed to offer sufficient evidence to create a genuine issue of material fact as to the existence of the policy or custom which he alleged existed. He did not identify a single inmate who was placed in his particular housing unit because he professed that he was homosexual, bisexual, HIV-positive or suffered from AIDS and should have been placed in a higher security setting because of his propensity for violence. While one prisoner had previously been classified as a maximum security risk, he did not show that he had been placed in the housing unit because he professed to be homosexual, bisexual, etc. And, while another prisoner was shown to have been sent to the unit, at least initially, because he told a classification officer that he was a homosexual, his initial classification form indicated that he was a medium-security risk and therefore was appropriately placed there.
            The court noted that there was also some evidence that, instead of assigning prisoners to the housing unit regardless of their propensity for violence, that jail officials on occasion moved particular inmates out of the unit, at least temporarily,  when they were involved in violent incidents.
            There was no evidence that only professed homosexual, bisexual, HIV-positive or "AIDS-positive" inmate were placed in the unit either. While the housing unit was considered a "special needs" unit, it also contained mentally-ill prisoners and prisoners who were on a suicide watch. Wayne v. Jarvis, No. 97-9152, 197 F.3d 1098 (11th Cir. 1999).

Text: <http://www.law.emory.edu/11circuit/index.html>. [Cross-reference: AIDS Related; Prisoner Assault: By Inmates].


Changing the amount of property, including both hobby materials and legal materials, which prisoners could keep in their cells did not violate prisoners' due process or equal protection rights; appeals court also finds no violation of the right of access to the courts.
            Eight Wyoming prisoners filed a federal civil rights lawsuit claiming that prison officials deprived them of their property without due process or equal protection of law. They had acquired a variety of personal property, including "hobby" and legal materials, which they kept in their cells. Shortly after the murder of a corrections officer, the prison adopted a policy limiting the amount of property which could be kept in cells.
            Property in excess of the authorized amount was removed from the prisoners' cells and was stored for 90 days, during which they were allowed to arrange for its shipment out of the prison to a location of their choice. The plaintiff prisoners also claimed that restricting the legal materials they could keep in their cells violated their right of access to the courts.
            A federal appeals court upheld the dismissal of this lawsuit. It found that the U.S. Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995) expressly rejected, in the context of prisoner liberty interests, the method of analysis set forth in Hewitt v. Helms, 459 U.S. 460 (1983) under which courts looked to state law to see whether mandatory language in state statutes or regulations create protected rights which can only be withdrawn by observing due process standards. Many courts also applied this Hewitt analysis to see whether there were vested rights to the possession of property created by state law. Sandin rejected this analysis in prisoner liberty interest cases, requiring instead that prisoners show that prison officials' actions impose an "atypical, significant deprivation" different from the ordinary deprivations of prison life.
            The plaintiff prisoners in this case argued that they had a constitutionally protected right to keep the disputed property in their cells based on a previously issued state prison Inmate Rules Handbook. The federal appeals court found that the Sandin Court's analysis was equally applicable to prisoner property rights cases, and that it could not be said that the new regulations promulgated by prison officials presented "the type of atypical significant deprivation [of their existing cell property privileges] in which a State might create a [property] interest."             The appeals court found that the "regulation of type and quantity of individual possession in cells is typical of the kinds of prison conditions that the Court has declared to be subject to the new analysis set forth in Sandin." The court also rejected the argument that the plaintiff prisoners had a property right to certain income that they previously received from their hobby activities.
            Finally, the appeals court rejected the "access to the courts" claim since the plaintiffs could not show that the denial of the right to keep the specified legal materials in their cells "hindered" their efforts to pursue any legal claim. Cosco v. Uphoff, #99-8036, 195 F.3d 1221 (10th Cir. 1999).

Text: <http://www.kscourts.org/ca10/>. [Cross-reference: Access to Courts/Legal Info].


Prisoner who suffered from varicose veins awarded $12,500 for increased pain and suffering based on prison conditions that allegedly caused the deterioration of his condition.
            A prisoner in a New York correctional facility suffered from varicose veins when he began his prison sentence. He later sued the state, arguing that negligence and inadequate treatment had resulted in the deterioration of his condition and in increased pain and suffering.  The New York Court of Claims awarded him $12,500 for pain and suffering.
            Medical testimony in the case indicated that the prisoner's condition was "further exacerbated" by his having to wear State-regulation boots, sleep on a bed that was too short for him, and work in the horticulture program. An intermediate New York appellate court upheld the award, but rejected the argument that the plaintiff was also entitled to an award of attorneys' fees, since "such an award is expressly prohibited by Court of Claims Act. Sec. 27." Mihileas v. State of New York, 697 N.Y.S.2d 891 (A.D. 1999).


Male prisoner's right to privacy was not violated by correctional officials refusal to allow him to block cell observation window with a piece of paper when he used the toilet, allowing female and male correctional officers and prisoners passing by to observe him doing so.
            A male prisoner in a Virginia correctional facility asserted that his constitutional right to privacy was violated when correctional officials prevented him from covering his cell's observation window while he used the toilet. He claimed that their refusal to allow him to cover the cell's window with a piece of paper on these occasions resulted in female and homosexual male officers, staff members, inmates, and "known predators" being able to view him while he used the toilet because they all regularly passed by his cell unannounced.
            Correctional officials argued that placing such a barrier on the cell window interfered with prison security and that the prisoner should place a covering over a portion of his body while seated on the toilet if he was concerned about a "privacy shield."
            A federal trial court granted summary judgment for the defendant correctional officials. It noted that while inmates may have a right to be protected from "gratuitous and unnecessary observation while they use their cell toilets, prison officials have an overriding responsibility to take whatever steps may be reasonably necessary, including surveillance of inmates, to maintain prison security."
            Further, the existing controlling case law "does not make clear that removing a paper covering from a cell observation window violates an inmate's constitutional right to privacy, even if, as a result, persons may view him using the toilet." Therefore "reasonable officials in the place of defendants would not clearly understand that their specific actions and policies violated plaintiff's right to privacy." The prison officials were therefore entitled to qualified immunity from liability.
            The court also denied the request for injunctive relief. It found that the prison officials' actions were sensible and reasonable security measures under the circumstances. "Allowing inmates to cover their cell door observation windows would impose significant additional burdens" on correctional officials and their staff "because every time they wished to survey the activity inside," they would have to "take steps (literally) to move the covering from the observation window." Finally, allowing the prisoner to cover a portion of his body while using the toilet is a reasonable alternative method of protecting inmate privacy. MacDonald v. Angelone, 69 F. Supp. 2d 787 (E.D. Va. 1999).


California court rules that it is improper to strike gays and lesbians from a prospective jury on the basis of their sexual orientation.
            A number of prior court decisions have provided that it is improper to use peremptory challenges to strike prospective jurors on the basis of race, gender, or religion. In a recent decision, an intermediate California appeals court has extended this principal to discrimination against gays and lesbians in jury selection. While the decision came in a case involving a criminal prosecution, the reasoning would appear to apply in civil cases also. People v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339 (Cal. App. 2000).

Text: <http://www.courtinfo.ca.gov/opinions/>


Black prisoner's claim that he was denied an extra mattress and blanket while his white cellmate was given one stated an equal protection claim, as did his assertion that he was placed in solitary confinement for racially discriminatory reasons.
            A black prisoner in a South Dakota prison asserted that he and his white cellmate, who followed the same procedures in requesting an extra mattress and extra blanket, were treated differently by a correctional officer for racial reasons. The officer granted his cellmate's requests but denied his. He also claimed that another officer placed him in solitary confinement for racially discriminatory reasons, treating him differently than another inmate of a different race involved in the same conduct.
            The trial court dismissed these complaints for failure to state a claim. A federal appeals court disagreed, finding that an allegation that the prisoner was treated differently than similarly situated prisoners simply on the basis of race states an equal protection claim. Powells v. Minnehaha County Sheriff Dept., No. 99-2029, 198 F.3d 711 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>.


Prisoner who declared that he was Jewish could not be properly denied kosher food on the basis that prison Jewish chaplain did not recognize him as Jewish; the proper legal issue was whether his religious beliefs were sincerely held.
            An African-American prisoner in the New York state prison system identified himself as Jewish when he was first incarcerated in 1986, and received a kosher diet at a number of correctional facilities. When he was transferred to another facility in August of 1995, eligibility for a kosher diet was determined by the prison's Jewish Chaplain "through a process of interview and review of documentation to substantiate the inmate's Judiac background and intent to strictly observe Jewish dietary law."
            The chaplain told the prisoner that he could only be Jewish if he was either born Jewish or else had completed a formal conversion process. The prisoner disagreed, saying that he was Jewish because he "read the Torah [the old testament] and ate kosher food." He later claimed that his mother had been Jewish but the chaplain was unable to confirm this, and the prisoner declined to contact his mother, for fear of "upsetting" her.
            The chaplain decided that there was insufficient evidence that the prisoner was Jewish and he was removed from the kosher diet program. The prisoner filed a federal civil rights lawsuit against the chaplain and various other prison officials, claiming that his right to practice his religion had been violated.
            The trial court granted summary judgment for the defendants. A federal appeals court reversed in part. It found that the proper issue was not the "objective 'accuracy' of" the prisoner's claim that he was Jewish, but rather whether his religious beliefs are "objectively held." The appeals court rejected the contention that the question of Jewish stats is an "ecclesiastical question" beyond the competence of federal courts and is best left to prison religious authority.
            Whether the prisoner's religious beliefs were entitled to Free Exercise protection "turns on whether they are 'objectively held,' not on the 'ecclesiastical question' whether he is in fact a Jew under Jewish law. The court therefore ordered further proceedings in the lawsuit to apply this standard. Prison officials were not entitled to qualified immunity, because the right to practice "sincerely held" religious beliefs was clearly established. Jackson v. Mann, No. 97- 2968, 196 F.3d 316 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>. [Cross-reference Diet].


Federal appeals court upholds $385,000 sanction against state correctional department for failure to obey court orders to provide equal access to vocational training and apprenticeship programs for female prisoners.
            In federal civil rights litigation over alleged sex discrimination against female prisoners in Michigan correctional facilities, state correctional officials were ordered to provide vocational training and apprenticeship opportunities for female prisoners equal to those provided for male prisoners. In later proceedings, the trial court ruled that correctional officials were in contempt of its orders and imposed sanctions in the amount of $5,000 a day, for a total of $385,000, for a time period during which female prisoners were denied such programs despite the court's orders.
            A federal appeals court upheld these sanctions, rejecting correctional officials' argument that the sanctions should be set aside as excessive or because the Michigan correctional facilities were now in compliance with the original orders.  The appeals court found that the sanction imposed "was not intended as compensatory damages, but as a punitive measure designed to force the Department finally to comply with the court's lawful orders, after years of defiance and delay. It would seem to have succeeded, since the Department was found to have followed the court's order within ten weeks."
            Rather than being excessive, the appeals court found that the sanctions, "in light of the Department's years of noncompliance," were "remarkably forbearant," and "succeeded in capturing the Department's attention." The imposition of sanctions for a "coercive, rather than compensatory" purpose was appropriate in these circumstances, the appeals court stated. The money collected as a sanction will be placed in a fund for the benefit of women prisoners in Michigan, with the recommendation that it be used for the "purpose of defraying the future cost of the vocational programs ordered." Glover v. Johnson, #98-1900, 98-2140, 199 F.3d 310 (6th Cir. 1999).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross- reference: Work/Education Programs].


Prisoner's assertion that correctional officers sexually assaulted him on three occasions satisfied the requirement of a physical injury for recovery for emotional damages stated in the Prison Litigation Reform Act.
            A New York prisoner asserted that a number of correctional officers sexually assaulted him on three separate occasions, and further asserted use of excessive force during "intrusive body searches."
            The trial court dismissed these claims, finding that these were emotional distress claims for which there could be no recovery without a prior showing of physical injury under 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act. The appeals court disagreed. "The alleged sexual assaults qualify as physical injuries as a matter of common sense," and would constitute more than minimal injury if they occurred. Additionally, the trial court failed to consider whether the sexual assaults might state a claim under the "Eighth Amendment in addition to stating a claim for emotional distress." Liner v. Goord, No. 98-2925, 196 F.3d 132 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>. [Cross-reference: Prison Litigation Reform Act: Emotion Injuries].
Federal trial court rules that sexual relations between a female prisoner and a male correctional officer, even if allegedly consensual, were a per se violation of the Eighth Amendment in a state which criminalized such conduct; consent defense was not available to officer in federal civil rights lawsuit.
            When a female inmate in a Delaware state prison brought a lawsuit against a male correctional officer, claiming that the officer violated her constitutional rights by sexually assaulting her, could the officer defend against liability by admitting to engaging in a sexual act with her, but contending that she consented to the act? "No," according to the federal trial court.
            The trial court directed a verdict against the officer on the issue of liability, and ruled that the officer could not assert the plaintiff's alleged consent as a defense to the claimed constitutional violations.
            The prisoner claimed that the officer entered her room while she was taking an afternoon nap, woke her, told her to be quiet, placed a condom on his penis, and then engaged in vaginal intercourse with her against her will. The officer claimed that the plaintiff engaged in an act of oral sex with him, rather than vaginal intercourse, and that she consented to it and seduced him. He also claimed that she then wanted to have sexual intercourse with him, but that he refused. He claimed that the prisoner "conspired" to report the incident as a rape, so that she could sue for money.
            "The Court finds this factual discrepancy to be of no import," the trial judge wrote, "because, the Court concludes, as a matter of law, that an act of vaginal intercourse and/or fellatio between a prison inmate and a prison guard, whether consensual or not, is a per se violation of the Eighth Amendment" in the state of Delaware. The court noted that the state legislature in Delaware has "spoken on the issue of sexual intercourse and fellatio in the context of the prison setting and has concluded that such action, whether consensual or not, constitutes a criminal offense." Accordingly, the court concluded that such actions are "at odds with contemporary standards of decency."
            The court noted that a number of other courts had "recognized that the occurrence of sex acts between inmates and prison guards serves no legitimate penal purpose, may cause severe physical and/or psychological harm and may violate contemporary standards of decency." See Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). The court noted that, unlike other cases in which incidents of "fondling, touching or suggestive sexual behavior" were held to be "insufficient to state an Eighth Amendment claim," this case "involves actual sexual intercourse," whether vaginal or oral.
            The court found the mere fact that the defendant admitted to having engaged in a sexual act with the prisoner sufficient evidence, "in and of itself, to establish as a matter of law that" he "acted with deliberate indifference toward the Plaintiff's well-being, health and security."
            The court further reasoned that there was a special relationship between a prisoner and those to whom her "care and custody are committed." By eliminating consent as a defense to a crime of sex between a prisoner and a correctional employee, the Delaware legislature "recognizes the vulnerability of inmates to abuse by those empowered to control the inmate's existence." The court concluded that the defendant, as a matter of law, could not establish a "voluntary, knowing and intelligent waiver" by the plaintiff of her right to be free of sexual contact with the defendant. Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999).
            EDITOR'S NOTE: In Fisher v. Goord, 981 F. Supp. 140 (W.D.N.Y. 1997), a federal trial court found that an inmate could, under some circumstances, be found to have consented to sexual relations with a correctional officer. But this court itself noted that the activity in question took place before the state of New York enacted a revised statute making sexual relations of any kind between an inmate and a correctional officer statutory rape.


Prisoners right to be free from unreasonable levels of exposure to second-hand tobacco smoke was "clearly established" in 1993, federal appeals court rules; prison officials were not entitled to qualified immunity from liability for alleged health problems caused by having allowed smoking in certain areas of New York prison.
            Three New York state prisoners sued correctional officials, claiming that they were subjected to cruel and unusual punishment through exposure to environmental tobacco smoke (ETS), also known as second-hand smoke. Defendant correctional officials argued that they were entitled to summary judgment either because exposure to second-hand smoke was not an Eighth Amendment violation or on the basis of qualified immunity. The trial court declined to accept these arguments.
            A federal appeals court upheld this result. The appeals court noted that the U.S. Supreme Court, in Helling v. McKinney, 509 U.S. 25 (1993), decided two months before the plaintiffs filed their lawsuit, held that the Eighth Amendment prohibits prison officials from exhibiting deliberate indifference to future health problems that an inmate may suffer as a result of current prison conditions, even if the inmate "shows no serious current symptoms." The Supreme Court explained that a plaintiff "states a cause of action under the Eighth Amendment by alleging" that defendants have, "with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health."
            After Helling, the appeals court found, it was "clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate's health."
            The appeals court also found that the medical dangers of ETS were well known to the defendants. Indeed, the prison's policy itself stated that the "health risks associated with smoking are well-documented," in justifying the prohibition of smoking in certain public areas. The policy did not regulate smoking, however, in private residences, and treated inmates' cells as private residences, allowing inmates to smoke freely there, as well as in certain recreation areas.
            The prisoners' lawsuit claimed that the level of ETS in the cells and common areas of the prison, combined with poor ventilation, created a serious long-term risk to their health. They also claimed to suffer from sinus problems, headaches, dizziness, asthma, hepatitis, nausea, shortness of breath, chest pains, and tuberculosis as a result of exposure to ETS. The prisoner's allegations, if believed, "overwhelmingly describe a prison environment permeated with smoke resulting" from "under-enforcement of inadequate smoking rules, overcrowding of inmates and poor ventilation." Accordingly, the prison officials were not entitled to qualified immunity, and the prisoners' lawsuit will proceed to trial. Warren v. Keane, No. 98-2997, 196 F.3d 330 (2nd Cir. 1999).

Text: <http://www.tourolaw.edu/2ndCircuit>.
Pre-trial detainee allegedly subjected to second-hand smoke for 4-1/2 years in county jail could not recover damages from county officials for either present or future health problems when present health problems were not sufficiently serious and there was no objective certainty that future health problems would occur.
            A pre-trial detainee at an Illinois county jail was housed in a non-smoking tier, but claimed that other prisoners routinely violated the non-smoking policy causing him to be exposed to excessive levels of second-hand smoke throughout his detention. In a federal civil rights lawsuit against jail officials, the detainee claimed that they forced him to share a cell with smokers for the majority of his four-and-one-half year detention, and that this caused him to experience difficulty in breathing, chest pains, dizziness, drowsiness, sinus problems, burning sensations in his throat and headaches.
            He also claimed that he might experience significant health problems in the future as a result of being forced to breathe cancer-causing second-hand smoke. Upholding summary judgment for the defendants, a federal appeals court ruled that the detainee's alleged present injuries and health problems were not "objectively, sufficiently serious" to support a claim of a violation of his right to due process. There was no allegation that any physician had diagnosed him as having a medical condition necessitating a smoke-free environment or treated him for any condition or medical ailment brought about by exposure to environmental tobacco smoke.

            The appeals court also rejected the detainee's claim for damages for future harm. Such damages for future harm may not be awarded, the court ruled, in the absence of evidence that, "to a reasonable degree of medical certainty," the detainee himself faced "some defined, increased risk of developing" a serious future injury or medical condition attributable to exposure to second-hand tobacco smoke. The court found no such evidence in this case. Further, the court ruled that, under applicable Illinois state law, damages for a "currently unmanifested injury" could not be recovered unless the "future serious injury" is "reasonably certain to occur." Henderson v. Sheahan, #98-2964, 196 F.3d 839 (7th Cir. 1999).

Text: <http://www.kentlaw.edu/7circuit/>.


Correctional officials were not liable to female prisoners who were strip searched by female officers with male officers and staff members present during emergency evacuation of women's correctional facility because of flooding of nearby creek; no clearly established law against viewing of unclothed female prisoners by male officers who did not conduct searches or touch prisoners.
            Officials at an Oregon women's correctional facility decided to evacuate the prisoners and take them to another facility because of an emergency involving the flooding of the facility's parking lot by an overflowing nearby creek. In accordance with policies requiring skin searches of prisoners prior to inter-institutional transfers, female officers and staff performed skin searches on female prisoners being transferred.
            However, some male staff and officers at the receiving facility were in the area where the skin searches were conducted while they were going on. Some of them were walking in and out or doing paperwork and were able to see the searches. The prisoners subsequently filed a federal civil rights lawsuit claiming that the presence of these male personnel during the searches violated their Fourth and Eighth Amendment rights. The trial court ruled that the defendant correctional officials were entitled to qualified immunity.
            The trial court acknowledged that a federal appeals court had previously held, in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc), that a prison policy requiring male guards to conduct random, nonemergency, suspicionless clothed body searches on female prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. This was because there was evidence that many of the female inmates had been sexually abused prior to incarceration, and the court concluded that the searches, which included squeezing and kneading of the breast, groin and thigh areas, were cruel because they inflicted psychological pain on the inmates.
            The court found the searches in this case different. In the immediate case, male guards may have looked at the female prisoners, but they did not touch them. Additionally, this case involved "an isolated event occasioned by the emergency removal of the female inmates to the male prison."

            Further, the court found that there was no "clearly established" constitutional right for female prisoners not to be viewed by male guards while being strip searched.
            "Because it is not clear to this day whether such a right exists, there is no question that a right to be free from the viewing of plaintiffs' unclothed bodies by officials of the opposite sex was not established at the time of the skin searches in question in this matter," which took place in 1996. Accordingly, defendant officials were entitled to qualified immunity. Carlin v. Manu, No. 98-372-HU, 72 F. Supp. 2d 1177 (D. Or. 1999). [Cross-reference: Privacy].


Page numbers in [brackets] refer to the print edition.

Carlin v. Manu, No. 98-372-HU, 72 F. Supp. 2d 1177 (D. Or. 1999).[62-63]
Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999).[59-60]
Cosco v. Uphoff, #99-8036, 195 F.3d 1221 (10th Cir. 1999).[54-55]
Glover v. Johnson, #98-1900, 98-2140, 199 F.3d 310 (6th Cir. 1999).[58]
Henderson v. Sheahan, #98-2964, 196 F.3d 839 (7th Cir. 1999).[61-62]
Jackson v. Mann, No. 97-2968, 196 F.3d 316 (2nd Cir. 1999).[57-58]
Liner v. Goord, No. 98-2925, 196 F.3d 132 (2nd Cir. 1999).[58-59]
MacDonald v. Angelone, 69 F. Supp. 2d 787 (E.D. Va. 1999).[55-56]
Mihileas v. State of New York, 697 N.Y.S.2d 891 (A.D. 1999).[55]
Murphy v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999).[51]
Orum v. Haines, 68 F. Supp. 2d 726 (N.D.W.Va. 1999).[52-53]
People v. Garcia, No. 00 C.D.O.S. 851, 92 Cal. Rptr. 2d 339 (Cal. App. 2000).[56]
Pickering v. City of Atlanta, 75 F. Supp. 2d 1374 (N.D. Ga. 1999).[51-52]
Powells v. Minnehaha County Sheriff Dept., No. 99-2029, 198 F.3d 711 (8th Cir. 1999).[56-57]
Warren v. Keane, No. 98-2997, 196 F.3d 330 (2nd Cir. 1999).[60-61]
Wayne v. Jarvis, No. 97-9152, 197 F.3d 1098 (11th Cir. 1999).[53-54]

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