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

August, 2000 web edition

Cite this issue as 2000 JB Aug (web edition)

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(Published as VOLUME 2000 NUMBER 284)

Attorneys' Fees
Chemical Weapons
Employment Issues
Inmate Injury/Death
Medical Care
Prison Conditions: General
Prison Litigation Reform Act: Exhaustion of Remedies
Prison Litigation Reform Act: "Three Strikes" Rule
Prisoner Assault: By Inmate
Segregation: Administrative
Telephone Access
Index of Cases Cited


Prisoner awarded $15,000 in damages for correctional officers' use of excessive force against him was entitled to attorneys' fee award of $22,499, not the $137,395 he requested; trial court upholds constitutionality of Prison Litigation Reform Act's limitations on prisoner attorneys' fee awards.

            An inmate in an Ohio correctional facility was awarded a total of $15,000 in damages against two correctional officers after a jury found that they had used excessive force against him. Of that amount, $12,000 was compensatory damages and $3,000 was punitive damages. As a prevailing plaintiff in this federal civil rights lawsuit, he then filed a motion seeking an award of attorneys' fees and costs under 42 U.S.C. Sec. 1988.

            He asked for a total award of $137,395.21 in attorneys' fees and expenses, and also challenged the constitutionality of 42 U.S.C. Sec. 1997e, a section of the Prison Litigation Reform Act (PLRA) which limits attorneys' fee awards in prisoner cases. The trial court ruled that this section of the PLRA is constitutional and awarded the plaintiff $22,499 in attorneys' fees and expenses, less than 1/6 of the amount requested.

            The trial court rejected the prisoner's claim that the section of the PLRA limiting attorneys' fees was a violation of his right to equal protection. It found that the provision did not deprive the prisoner of a reasonably adequate opportunity to present his claims. The purpose of the PLRA is to prevent prisoners from filing frivolous lawsuits, and in placing a limit on attorneys' fees awards, it was intended to bring prisoners' litigation incentives "on par with, not below, non-incarcerated litigants."

            Accordingly, the court rejected requested hourly rates of $250 and $180 for the plaintiff's two attorneys, finding that the maximum allowable rate in the district was $75 for out-of-court time and $105 for each in-court hour. (The PLRA provision, 42 U.S.C. Sec. 1997e(d)(3) provides that the hourly rate may not be greater than 150% of the hourly rate established for court-appointed lawyers under 18 U.S.C. Sec. 3006A).

            This resulted in a fee amount of $53,792.25. But the PLRA also provides that the amount of fees must be "proportionately related to the court ordered relief," and that the total award is restricted to 150% of the judgment. The amount awarded, under these limitations, was therefore further reduced to $22,499. Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000). [Cross-references: Prison Litigation Reform Act: Attorneys' Fees].


Correctional officer did not impose cruel and unusual punishment when he sprayed an inmate in the face with pepper spray after the prisoner refused a direct order from his work supervisor and "questioned" an order from the officer

            An Arkansas prisoner working in a prison kitchen refused orders from his supervisor instructing him to mop the floor. When a correctional officer told him that he would be placed on "disciplinary court review" for his refusal to work, and ordered him to the hall desk, the prisoner questioned this order. He was then ordered to go to his barracks. At one point, as he turned to respond to another question from the officer, he was sprayed in the face with capstun ("pepper spray"), when the officer said he got "very loud and became argumentative."

            The prisoner was then handcuffed by another officer and taken to the infirmary, where a nurse flushed his eyes with water. He was then taken to administrative segregation, but returned a short time later, complaining of lingering effects. His eyes were flushed with water a second time and then he was taken outside for air. The prisoner estimated that he suffered the effects of the capstun for a "good 30 or 45 minutes." He was later found guilty of two disciplinary offenses, one for refusal to work and another for failure to obey an order from the correctional officer and for use of "abusive, obscene language" towards him.

            The prisoner filed a federal civil rights lawsuit against the officer, alleging that this use of pepper spray against the prisoner was "cruel and unusual punishment." A federal appeals court rejected this claim.

            The court found that the use of the pepper-based chemical spray on the prisoner had a minimal injurious effect. The prisoner's own testimony was that any effects of the spray cleared up within 45 minutes, which included two visits to the infirmary. A medical examination the following day showed no lingering effects, and there was no evidence that the officer's use of the spray was malicious or sadistic.

            The court further found that the use of this type of force was not shocking to the conscience. "A limited application of capstun to control a recalcitrant inmate constitutes a 'tempered response by prison officials' when compared to other forms of force. Used in such manner and purpose, its application should 'rarely be a proper basis for judicial oversight.'" The court noted that by the prisoner's own testimony, the officer administered the capstun after he refused a direct order from his work supervisor and "questioned" an order from the officer, "conduct which formed the basis for two disciplinary violations." There was no argument that the officer used the capstun in "excessive or dangerous quantities." Under these circumstances, the officer was entitled to dismissal of the lawsuit, since the prisoner failed to establish any Eighth Amendment violation. Jones v. Shields, #99-1869, 207 F.3d 491 (8th Cir. 2000).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Prisoner Assault: By Officer].


New Jersey Supreme Court rejects employer's argument that it could fire a prison nurse for circumventing the "chain of command" in complaining to her supervisor's supervisor of inmates being provided with medicine and medical services without being charged a legally required co-payment and being provided with medication under expired doctor's orders; further proceedings ordered on nurse's "whistleblowing" lawsuit

            A nurse was employed at a New Jersey state correctional facility for women. When the Department of Corrections "privatized" medical services at the facility, she was retained by the outside contractor hired to deliver the services.

            Under Department of Corrections policy, inmates were required to pay a nominal co- payment fee for medical services and medications, which was $5 for medical services and $1 for medications. After the private contractor took over the provision of services at the facility, the nurse observed that medical services and medications were being provided to inmates who had not completed the required co-payment form and therefore were not charged the required co-payment. She therefore complained to her immediate supervisor about this failure to enforce the law.

            She further complained that medications were being provided to inmates under expired physician orders, which she believed to be in violation of both state and federal law. When she was subsequently terminated, she filed a lawsuit against her former employer under a state law prohibiting retaliation against an employee who reports unlawful actions to a work supervisor. The employer argued that the employee was fired for failing to follow the "chain of command," addressing one of her letters of complaint to the company's Health Services Administrator, rather than to her immediate supervisor, after her immediate supervisor had allegedly ignored prior oral complaints.

            Lower courts found that the plaintiff's whistleblowing was not protected and that she was terminated for her refusal to follow instructions concerning where to submit complaints and for her refusal to follow orders in the dispensing of medication. The Supreme Court of New Jersey reversed and remanded.

            The state's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, allows an employee who wants to report illegal conduct without fear of retaliation to make their report to "any individual within an employer's organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer." The court ruled that the employer had no right to limit the statute's definition, in this fashion, of the term "supervisor" to mean only "immediate supervisor." In this case, her report to the person to whom her immediate supervisor herself reported fell within the law's definition of the word "supervisor."

            "This does not mean that an employer may not fire an employee, even a whistleblower, who is unreasonable in expressing his or her complaints," such as one who repeatedly called a residence late at night to report violations of the law after being asked not to do so. "But to discipline an employee for going over the head of a supervisor allegedly involved in illegal or unethical workplace activity undermines exactly what the Legislature had in mind when it passed the Whistleblower Act." Because the lower courts treated the case as one in which violation of the chain of command "was a valid basis for discharge," the court ordered further proceedings to determine whether the plaintiff stated an actionable claim. Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 751 A.2d 1035 (2000). [Cross- references: Inmate Funds; Medical Care].

Text: <http://lawlibrary.rutgers.edu/search.html>.

Native American correctional officer should be allowed to wear his hair long (but pinned under his cap) to accommodate his religion, Ohio Supreme Court holds.

            The Ohio Supreme Court ruled that the state had a compelling interest in establishing a uniform and grooming policy for its correctional officers. "The appearance of an organized, disciplined front could aid in squelching thoughts of organized unrest by prisoners. Prisons by their nature are filled with people who have rejected the structure of civilized society, and a heightened sense of order is necessary to maintain stability." At the same time, by a 6-1 vote, ruled that a compelling interest was insufficient under the state's constitution to prohibit a correctional officer from wearing long hair as part of his Native American religion.

            The state did not argue that the grooming policy was a necessary safety or security measure and no evidence in the case showed that the long hair had a negative impact on coworker esprit de corps, or resulted in inmate disrespect or any other impairment of the ability of the officer to perform his job duties.

            The state's Supreme Court ruled that in addition to showing a compelling interest, the state had to use the least restrictive means of furthering that interest. In this case, it held, allowing the officer to wear his hair long, but pinned under his uniform cap, would be sufficient to protect the state's compelling interest, while accommodating the officer's practice of his religion. Discipline would only be justified, under these circumstances, if the employee could not achieve a uniform professional and dignified image even with this accommodation. Humphrey v. Lane, #99-206, 2000 Ohio LEXIS 1283.

Text: <http://www.sconet.ohio.gov/>. [Cross-reference: Religion].


Prisoner failed to show that his injuries were the result of sodomy and assault by other inmates rather than a seizure as the state contended.

            An inmate at a New York state correctional facility was left alone in a prison kitchen for a short period of time. When his supervisor returned, the inmate was found on the floor in the hallway outside the kitchen, unconscious, shaking, and bleeding from his mouth. He was clothed and his pants and shirt were not in disarray. He was taken to the prison infirmary, but upon regaining consciousness could not recall what had happened.

            He later claimed that he was hit on the head and choked. He suffered a number of seizures at a later time. He then filed a lawsuit against the state, asserting, among other things, that he was attacked and sodomized by two inmates as a result of the state's negligence and that the treatment he received for his injuries constituted medical malpractice. Following a trial in the state court of claims, his claims were dismissed.

            An intermediate state appellate court upheld this result. The prisoner submitted evidence in the form of testimony of a physician who stated that the injury to his head resulted from an attack, as well as an internal prison report prepared by two corrections officers which made reference to the possibility that there had been an assault on the prisoner. However, the state countered with evidence that the claimant's injuries and amnesia were the result of a seizure, not an attack, including medical expert testimony that the prisoner had a history of seizures. The appellate court therefore upheld, as a valid determination of credibility and weight of the evidence, the trial court's factual determination that the prisoner failed to prove by a preponderance of the evidence that he was a victim of sodomy or assault by fellow inmates. The claim of medical malpractice was also rejected. Zi Guang v. State of New York, 695 N.Y.S.2d 142 (A.D. 1999). [Cross-reference: Prisoner Assault: By Inmates].


Illinois prison employees did not violate prisoners' rights when they inspected their incoming mail and seized as contraband copies of travel vouchers submitted by members of the state's Prisoner Review Board obtained by prisoners' relatives under the state's Freedom of Information Act; prisoner access to these vouchers presented a possible threat to the safety and security of Review Board members.

            Four inmates at an Illinois prison claimed that two prison employees violated their civil rights by inspecting mail addressed to them and seized as contraband copies of travel vouchers filed by members of the state's Prisoner Review Board. Each of the four prisoners was either a plaintiff in, or anticipated becoming a plaintiff in, another lawsuit which alleged that the Prisoner Review Board was not meeting as required by law when deciding parole cases.

            The plaintiffs claimed that their relatives had obtained copies of the travel vouchers of Review Board members through state Freedom of Information Act requests and that these vouchers were needed as evidence in the previously filed lawsuit, and would establish that, despite the presence of their signatures on Review Board orders, individual Review Board members were not present at Review Board meetings as required by law.

            The correctional employees argued that Department of Corrections regulations permitted them to inspect incoming mail and withhold from delivery any letter containing information that might result in physical harm to another. They argued that the travel vouchers in question identified hotels and contained arrival and departure information with dates and times that illustrated a habitual pattern, so that disclosure of this information to inmates created a risk to the safety and security of Review Board members.

            An intermediate Illinois appeals court upheld the dismissal of the prisoners' lawsuit over the handling of their mail. The court ruled that the provisions of the state's Corrections Code authorizing the inspection of mail and the seizure of contraband took priority over any conflict with the state's Freedom of Information Act (FOIA) allowing "any person" access to public records. This was because the Corrections Code was more specific, applying not to all public records, but only to those that are mailed to inmates.

            The court further found that the confiscation of the travel vouchers did not violate the prisoners' rights of free speech and due process. The seizure was "rationally connected" to a legitimate government interest in protecting the safety and security of the Prisoner Review Board members. A prisoner could determine, from examining the records, whether a Board member routinely stayed overnight either before or after visiting a particular institution and whether that member routinely used the same hotels. "This information could potentially be used to harass, intimidate, or threaten Review Board members either in an attempt to influence future decisions or in retaliation for previous unfavorable decisions."

            The court further noted that the plaintiff prisoners did not require the travel vouchers themselves to prove that Board members "are not meeting in accordance with the law," and that their family members could have provided them instead with a "summary of the vouchers" that did not reveal if a particular member stayed at a particular hotel. The prisoners could use the discovery process, interrogatories, or requests to admit in their other litigation to attempt to prove that a particular Review Board member was not present at the time and place indicated in a Review Board decision. The vouchers could have been held by an attorney or filed directly with the court and "used subject to a protective order. Accordingly, confiscation of copies of the vouchers themselves did not prevent the prisoners from attempting to prove their case in the pending litigation over the Review Board's activities.

            Requiring prison authorities to do a line-by-line censoring and deleting of dangerous information from the vouchers would be too burdensome, so the "seizure of the travel vouchers was reasonable" and did not represent "an exaggerated response." Holloway v. Meyer, No. 2-98-1641, 726 N.E.2d 678 (Ill. App. 2000).

Text: <http://www.state.il.us/court> [Cross-reference: Freedom of Information Act].


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.

            A female prisoner at an Ohio correctional facility was nine months pregnant. She had previously been granted permission for her husband to be present in the delivery room for the birth of her baby, after a letter supporting her request was received from her sentencing judge. However, after she gave an interview to a newspaper regarding her experiences as an inmate, the previously-granted permission was revoked. She and her husband therefore filed a federal civil rights lawsuit seeking an injunction requiring that prison officials allow him to be present at the birth.

            The trial court granted a temporary restraining order, and the prisoner subsequently gave birth. The husband was present at the birth, so the trial court ruled that the case was now moot, and dismissed it. The court also held, however, that the prisoner and her husband were "prevailing parties" for purposes of an award of attorneys' fees. Their lawsuit asserted that prison officials violated their free speech rights by prohibiting the husband from attending the birth after the prisoner gave the newspaper interview about prison conditions, as well as violating their equal protection rights since similarly situated prisoners had been allowed to have their spouses present during birth.

            While these issues were not ultimately tried, the trial court's granting of a temporary injunctive order indicated that they were not frivolous. The plaintiffs received the relief they wanted either because of this injunctive order or else because their filing of the litigation was a "catalyst" in causing prison officials to change their opposition to the husband's presence at the birth. In either event, an award of attorneys' fees was appropriate.

            The court also ruled that, because the husband was not a prisoner, and there was "no logical way to separate the attorneys' fees expended on behalf of the two plaintiffs," who both "advanced non-frivolous claims" intended to achieve a "single remedy benefiting both," the limitations on attorneys' fees awards contained in the Prison Litigation Reform Act (PLRA) did not apply. The PLRA, in 42 U.S.C. Sec. 1997e(d) limits awards of attorneys' fees "in any action brought by a prisoner" to 150 percent of the rate authorized under 18 U.S.C. Sec. 3006A(d). The court noted that those rates were currently $45 for out-of-court time and $65 for in-court time, based on appropriations, although $75 per hour was authorized. Finding these limits inapplicable, the court awarded $5,393.05 in attorneys' fees and $350.62 in litigation expenses. The court found "reasonable" the rates of $195 per hour, $175 per hour, and $135 per hour for the three plaintiffs' attorneys. Turner v. Wilkinson, 92 F. Supp. 2d 697 (S.D. Ohio 1999). [Cross-references: Attorneys' Fees; First Amendment; Prison Litigation Reform Act: Attorneys' Fees].

Denying female prisoner access to abortion services violated her rights and constituted deliberate indifference to the serious medical needs of a pregnant prisoner.

            A female prisoner in an Ohio correctional facility was serving an eighteen month sentence and was approximately nine weeks pregnant. She submitted a written request to correctional officials requesting access to pregnancy termination services, but was told that such access would not be provided in the absence of a court order.

            The trial court found that neither the U.S. Court of Appeals for the Sixth Circuit (which includes the state of Ohio within its jurisdiction) nor the United States Supreme Court have previously directly addressed the issue of "whether a state prison can refuse a female prisoner access to abortion services." However, the court found persuasive a prior ruling by another federal appeals court, in Monmouth Cty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987), finding that a similar regulation, that a city would not provide access to abortion services absent a court order, "bore no logical connection to legitimate penological interests" and constituted "deliberate indifference, under the Eighth Amendment, to the serious medical needs of pregnant inmates."

            The trial court therefore found that the plaintiff was likely to succeed on the merits of her lawsuit and was entitled to immediate injunctive relief since any delay "will unnecessarily increase the health risks imposed on the Plaintiff. It ordered correctional officials, therefore, "consistent with normal security procedures for outside medical visits, to transport" the plaintiff to a health care provider that provides abortion services, to be selected by her. Transportation there would be "for the purpose of permitting the plaintiff to secure abortion services, including, but not limited to any necessary counseling, education, surgery, and follow-up services." Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999). [Cross-references: Abortion; Medical Care].


Federal appeals court orders further proceedings on claim that deputy sheriff and jail's contract doctor were deliberately indifferent to diabetic prisoner's need for treatment; claim against doctor asserted that doctor ignored adverse reactions to medication initially prescribed.

            An inmate of a county jail in Missouri claimed that three correctional officers, the jail's contract doctor, and the county were deliberately indifferent to his need for a special diet and medication to treat his diabetes. He claimed that failure to receive such accommodations resulted in him suffering weeks of "excessive urination, excessive thirst, migraine-like headaches, diarrhea, dehydration, sweating and weight loss," as well as "excessive hunger, dizziness, diminished vision, loss of sleep," nausea and "fits of raving and delirium."

            The trial court granted summary judgment to all defendants. A federal appeals court reversed as to the jail's contract doctor and as to a deputy sheriff. The court found that it was undisputed that the prisoner suffers from diabetes and that he was examined by the defendant doctor on at least two occasions.

            What was disputed, however, is whether one of the three deputy sheriffs initially told the prisoner that he would not be transported to the doctor when he first arrived, despite his informing the deputy of his diabetes, allegedly telling the prisoner that jail staff members were too busy to take him there now and "you'll get there when I decide and not before." Also disputed was whether he told his jailors of his adverse reaction to his Glucophage medication, which was prescribed by the doctor at his first visit. The prisoner claimed that the deputy did not take him back to the doctor for approximately a month despite such complaints, and that the doctor again prescribed the same medication despite learning of these adverse reactions.

            While the deputy asserted that the prisoner never complained of his jail diet and was taken to see the doctor promptly on request, and exhibited no distress from his diabetes, the condition that the prisoner alleged "would have been obvious to a layman, or more particularly" to the deputy in his "day-to-day capacity" as the prisoner's jailer. Accordingly, the court ruled that it was wrong to have granted this deputy summary judgment, based on the disputed facts. The court further noted that the doctor asserted that the prisoner did not complain of adverse reactions to the medication on his second visit, and did not claim that he considered these "adverse reactions" to the medication and nonetheless concluded that this was still the appropriate medication to prescribe. Accordingly, further proceedings were also required on the claim against the doctor.

            The appeals court found that the prisoner submitted no real evidence of deliberate indifference on the part of two other correctional officers, and did not show that any delay in his treatment or in responding to his alleged adverse reactions to his medication were attributable to any policy or custom of the county. (His "primary complaint" against the county, the court noted in passing, was its policy of requiring inmates to pay for their own medications "if they can afford to do so," which is "not a federal constitutional violation"). Roberson v. Bradshaw, No. 98-2389, 198 F.3d 645 (8th Cir. 1999).

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


Prisoner's claim that requiring him to keep his cell windows closed for three days and nights was cruel and unusual punishment did not allege a physical injury as required by the Prison Litigation Reform Act or a sufficient deprivation to be an Eighth Amendment violation; state negligence claim was barred for failure to comply with notice of claim requirement.

            A Massachusetts prisoner allegedly was ordered to keep his cell windows shut for three days and three nights. He filed a federal civil rights lawsuit asserting that this constituted cruel and unusual punishment in violation of the Eighth Amendment. He further stated that he was not "breathing normally" during the period the cell windows were shut and that he needed to use his inhaler to help him breathe normally. He also asserted a claim for negligence under the Massachusetts Tort Claims Act.

            The trial court found a number of reasons to grant the defendant prison officials' motion for summary judgment:

            * The plaintiff failed to show a physical injury resulting from the cell windows being closed; and 42 U.S.C. Sec. 1997e of the Prison Litigation Reform Act prohibits a federal civil lawsuit by a prisoner "for mental or emotional injury suffered while in custody without a prior showing of physical injury."

            * The "harm" allegedly suffered was "so limited" that it did not rise to the level of an Eighth Amendment violation, which requires a showing that the prisoner was deprived of the "minimal civilized measure of life's necessities."

            * The prisoner failed to comply with a requirement of the Massachusetts Tort Claims Act that he present his claim in writing to the "executive officer of a public employer" within two years of the accrual of the claim and before filing a civil lawsuit.

            The court did reject, however, the defendants' argument that the lawsuit should also be dismissed because of the prisoner's failure to exhaust available administrative remedies, as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. While this section of the law did apply to the prisoner's claim, the prisoner's factual assertions created a genuine dispute of fact as to whether the defendants refused to allow him "any chance to use the grievance steps." He claimed that he requested grievance forms both orally and in writing on numerous occasions and was denied them by various prison officers. Sarro v. Essex County Correctional Facility, 84 F. Supp. 2d 175 (D. Mass. 2000). [Cross-reference: Defenses: Notice of Claim; Prison Litigation Reform Act: Exhaustion of Remedies; Prison Litigation Reform Act: Mental or Emotional Injury].


Georgia prisoner's claim that a correctional employee sexually abused him was subject to dismissal when he failed to exhaust available administrative grievance procedures before filing his federal civil rights lawsuit.

            A Georgia state prisoner claimed that he was sexually abused by a mental health counselor at a correctional facility and that two correctional officers "took part in this abuse." He also claimed that this alleged abuse took place with the "full knowledge" of a number of other correctional employees. Dismissing the lawsuit, a federal trial court ruled that the "exhaustion of remedies" requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) applied to the prisoner's claims of sexual abuse and excessive force. The court was persuaded that Congress did not "intend to exempt claims of abuse or excessive force from the requirement that prisoners exhaust available administrative remedies" before filing a lawsuit. Since the prisoner in this case was found to have not exhausted the available grievance procedures available to him, the court dismissed the lawsuit. Dillard v. Jones, 89 F. Supp. 2d 1362 (N.D. Ga. 2000). [Cross-reference: Sexual Assault].


Prisoners' lawsuits dismissed as "frivolous" or malicious, or for failure to state a claim, prior to effective date of Prison Litigation Reform Act still counted as "strikes" for purposes of the Act's "three strikes" rule prohibiting prisoners from pursuing claims as "paupers" after three such dismissals, in the absence of a claim of "imminent danger of serious physical injury."

            A District of Columbia prisoner filed a federal civil rights lawsuit against the District, claiming that a correctional officer violated his rights by placing him in a segregated cell and questioned him without first giving him Miranda warnings. He sought to proceed as a "pauper" in pursuing his action. His lawsuit was dismissed on the basis of his having previously filed three frivolous lawsuits, pursuant to a provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) denying prisoners the right to proceed as a pauper under such circumstances. His appeal was consolidated for review with another prisoner's appeal--with both appeals addressing the question of whether events that occurred prior to the effective date of the Prison Litigation Reform Act could count as "strikes" for purposes of this "three strikes" rule.

            The appeals court ruled that civil lawsuits or appeals dismissed as "frivolous, malicious, or for failure to state a claim" prior to the effective date of the PLRA still counted as "strikes." Accordingly, the plaintiff was not entitled to proceed as a pauper. This did not cut off access to the courts, but merely meant that, if he wanted to pursue the lawsuit, he had to pay his own way and pay the full filing fee at once "like any other litigant." (Such litigants may, however, still file their appeals as paupers if they claim to be in "imminent danger of serious physical injury."). Ibrahim, In Re., v. District of Columbia, #96-7069, 208 F.3d 1032 (D.C. Cir. 2000).

Text: <http://www.ll.georgetown.edu:80/Fed-Ct/cadc.html>.


County liable for $40,000 for injuries to prisoner in protective custody who was attacked by two gang member pre-trial detainees in common recreation area; court rules that policy allowing prisoners with different security levels to take recreation together was deliberate indifference in light of knowledge of specific threats to plaintiff prisoner.

            A Tennessee prisoner serving a sentence for aggravated burglary requested that he be placed in protective custody based on threats and other comments from fellow gang-member inmates. Three gang members who arrived at the facility, charged with the murder of a county deputy jailer, were not classified under the facility's policies because they were pretrial detainees. Disciplinary reports on two of these individuals indicated that they had attacked and threatened other prisoners.

            One day, while the prisoner who had requested protective custody was making a phone call in a common area, these two prisoners attacked him, hitting him in the back of the head and knocking him down. At the time, he was wearing leg irons and the other two prisoners were not. The common area contained the shower, telephone, and exercise facilities where prisoners in protective custody were allowed to go during the one hour a day they were permitted to leave their cell.

            The injured prisoner suffered a scalp puncture wound and permanent damage to his right shoulder, as well as blurred vision, headaches, and inability to lift heavy objects. He sued correctional officials for failing to protect him against the assault.

            The trial court found that the prison had a "de facto policy" allowing prisoners with different security levels to take recreation together in the common area. It further found that this recreation policy posed a "substantial risk of serious harm" to prisoners in protective custody, such as the plaintiff, and that prison officials demonstrated "deliberate indifference" to the risk to the plaintiff from this policy, in that they had both "general and specific" knowledge of threats by gang members, and knew that the plaintiff might be a specific target of such threats. Despite this knowledge, they did not take any affirmative steps to protect the plaintiff, including the "readily available" step of ending the policy under which prisoners with different security levels were allowed to take recreation together. The court awarded the plaintiff prisoner $40,000 in damages against the county. Miller v. Shelby County, Tenn., 93 F. Supp. 2d 892 (W.D. Tenn. 2000). [Cross-references: Exercise; Prisoner Classification; Work/Recreation Programs].


Placing a former correctional officer and state trooper in segregated housing while he was awaiting trial on state and federal drug charges was not punishment but was designed to protect him, especially since correctional officials had information about a specific threat to him from a drug dealer he was alleged to have "ripped off."

            A former correctional officer and state trooper was awaiting trial on both state and federal drug trafficking charges. It was alleged that he and another officer stole cash and drugs from drug dealers and then resold the drugs. He was later convicted on both federal and state charges. He filed a federal civil rights lawsuit, alleging that during one period of his pre-trial confinement in a state correctional facility he was put into "punitive segregation to force him to cooperate" with the prosecution against his state co-defendant, and that this was done without procedural due process safeguards provided by normal Department of Corrections administrative directives in Connecticut.

            The trial court acknowledged that pretrial detainees, whether state or federal, may not be subjected to conditions and restrictions that amount to "punishment" without due process of law. In this case, however, it further found that the purpose of the segregation imposed was not to punish the pre-trial detainee, but rather to protect him. Because of his status as an ex- law enforcement officer, his own lawyer expressed concern for his safety. Indeed, correctional officials even had in their possession information about a "specific threat" to the plaintiff's safety from a drug dealer whom he was alleged to have "ripped off."

            Having made an initial determination that the detainee would be at risk in the general prison population, the correctional officials were not obligated to "revisit that decision in the absence of information that the risk had dissipated." The court also noted that, even if the administrative directives that he pointed to applied to him, there was no evidence that he "sought a hearing or other forum" to contest his conditions of confinement.

            Additionally, even if his telephone calls and reading materials were limited, and his acquisition of a radio and television "were somewhat delayed," the court found that his overall treatment "was significantly better than the restrictions imposed" on inmates in punitive segregation, and there was no evidence that he was treated differently than other inmates in restrictive housing status. He was allowed to leave his cell for showers, phone calls, recreation and visits, and was, after a delay, allowed to have a radio and television. And there was no evidence that he complained about "the restrictive nature of his protective confinement, either to the defendant DOC officials or to the federal judge who was presiding over his pending criminal trial."  The trial court granted the defendant officials summary judgment. Valentin v. Murphy, 95 F. Supp. 2d 99 (D. Conn. 2000).


Federal appeals court rejects prisoner's claim that allegedly "higher" telephone charges for prisoner phone service were the result of a "conspiracy" between a warden and the telephone companies; prisoners did not have any constitutional right to particular phone rates.

            A California prisoner filed a federal civil rights lawsuit alleging that a warden was engaged in a conspiracy to extort money from inmates through charges for telephone calls. In particular, he asserted that the conspiracy was with telephone companies to overcharge inmates in exchange for "kickbacks."

            His attempted "proof" of this was a comparison of phone bills which he claimed revealed that "phone calls plaintiff made" to friends and family members cost them  "more than a non-incarcerated person who made a call from the same area where plaintiff is incarcerated." He further stated that as a result of such "overcharging," his mother's phone service was canceled, and she now has a mandatory "block" on the phone preventing her from making calls to the prison.

            A federal appeals court, upholding the dismissal of this claim, was not impressed. "Although prisoners have a First Amendment right to telephone access, this right is subject to reasonable limitations arising from the legitimate penological and administrative interests of the prison system." There is simply "no authority for the proposition that prisoners are entitled to a specific rate for their telephone calls and the complaint alleges no facts from which one could conclude that the rate charged is so exorbitant as to deprive prisoners of phone access altogether."

            Indeed, the court noted that the prisoner himself admitted that his mother lost phone service "in large measure because of a failure to pay the charges for high frequency use, not just rates for prison calls." His conspiracy allegations were "quintessentially vague and conclusory." Johnson v. State of California, #98-55302, 207 F.3d 650 (9th Cir. 2000).

Text: <http://www.ce9.uscourts.gov/opinions>.


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

Dillard v. Jones, 89 F. Supp. 2d 1362 (N.D. Ga. 2000).[124]
Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999).[121-122]
Fleming v. Correctional Healthcare Solutions, Inc., 164 N.J. 90, 751 A.2d 1035 (2000).[116-117]
Holloway v. Meyer, No. 2-98-1641, 726 N.E.2d 678 (Ill. App. 2000).[119-120]
Humphrey v. Lane, #99-206, 2000 Ohio LEXIS 1283.[118]
Ibrahim, In Re., v. District of Columbia, #96-7069, 208 F.3d 1032 (D.C. Cir. 2000).[124]
Johnson v. State of California, #98-55302, 207 F.3d 650 (9th Cir. 2000).[126-127]
Jones v. Shields, #99-1869, 207 F.3d 491 (8th Cir. 2000).[115-116]
Miller v. Shelby County, Tenn., 93 F. Supp. 2d 892 (W.D. Tenn. 2000).[125]
Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000).[115]
Roberson v. Bradshaw, No. 98-2389, 198 F.3d 645 (8th Cir. 1999).[122-123]
Sarro v. Essex County Correctional Facility, 84 F. Supp. 2d 175 (D. Mass. 2000).[123]
Turner v. Wilkinson, 92 F. Supp. 2d 697 (S.D. Ohio 1999).[120-121]
Valentin v. Murphy, 95 F. Supp. 2d 99 (D. Conn. 2000).[125-126]
Zi Guang v. State of New York, 695 N.Y.S.2d 142 (A.D. 1999).[118-119]

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