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

January, 2000 web edition

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(Published as VOLUME 2000 NUMBER 277)

DNA Testing
Prison and Jail Conditions
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Assault: By Inmate
Prisoner Death/Injury
Prisoner Restraint
Procedural: Evidence
Segregation: Administrative
Sex Discrimination
Strip Search
Work/Education Programs
Index of Cases Cited


Law requiring Pennsylvania prisoners convicted of violent and sex offenses to furnish blood samples for DNA testing and database storage did not improperly retroactively enhance punishment for their crimes; requirement was a reasonable administrative measure for identification of prisoners and any punishment would be for non-compliance with this rule, not for the original conviction.

                A Pennsylvania prisoner convicted of a sex offense filed a challenge to a state law requiring that he submit a blood sample for DNA testing (and subsequent database storage) prior to being released on parole. He claimed that this retroactively added a condition of parole, violating the separation of powers between the judicial and legislative branches of government, and increased his punishment after he had already been sentenced, in violation of the "ex post facto" provisions of the U.S. and Pennsylvania constitutions.

                A state court rejected all these claims. It held that the law did not deprive the prisoner of his eligibility for parole, since the law neither altered the maximum sentence or the terms of parole eligibility, but instead merely added an "administrative process" for identification of the prisoner. The court also held that the law did not increase the prisoner's punishment retroactively, since the testing requirement was "non-penal."

                Any punishment that the prisoner might suffer for refusal to give a DNA sample would not be an enhanced penalty for his original conviction, but instead administrative punishment for "non-compliance with a reasonable administrative regulation enacted prior to the act of non-compliance." Dial v. Vaughn, 733 A.2d 1 (Pa. Cmwlth. 1999).


Prisoner's assertion that he was deprived of direct sunlight for over one hundred days did not state a claim for cruel and unusual punishment.

                A Virginia prisoner claimed that jail officials violated his rights under the Eighth Amendment by depriving him of direct sunlight for more than one hundred days. He was housed in a unit consisting of a dayroom with no windows and ten cells each with a window. Prisoners are confined in the dayroom during the daytime, and are returned to their cells at night. Recreation is only provided in an indoor recreation area.

                Dismissing the lawsuit, a federal trial court ruled that "deprivation of sunlight for one- hundred days, in the circumstances of this case, is not a sufficiently serious deprivation of a basic need" to state a federal civil rights claim. The court acknowledged that "there may be extreme circumstances where deprivation of sunlight or light for an extended period of time might amount to a sufficient serious deprivation, but this is far from such a case." The court pointed to the fictional captivity of Dr. Alexandre Mantte in the Bastille in France in the Charles Dickens novel A Tale of Two Cities, in which eighteen years of confinement in a "gloomy" vault in which the "light of day has never shone" drove the prisoner to madness. "In comparison with the portrait painted by Dickens, the meritless nature of plaintiff's claim is particularly vivid."

                The "meritless nature of plaintiff's claim is underscored given plaintiff's admission that his cell has a window," which would expose him to some sunlight in the summer after he was returned to his cell at 5:30 p.m. Moreover, he had not made any allegation that he suffered a serious or significant injury from the alleged deprivation of sunlight. Richard v. Reed, 49 F. Supp. 2d 485 (E.D.Va. 1999).

                EDITOR'S NOTE: For decisions reaching similar results, see Pastorius v. Romer, 97 F.3d 1465, 1996 WL 528359 (10th Cir. 1996) (unpublished) (affirming trial court's dismissal of lawsuit where inmate alleged he was denied fresh air and direct sunlight); Jones v. Kelly, 900 F.2d 252 (4th Cir. 1990) (jails may provide space for indoor recreation as an alternative to outdoor recreation where there is no medical evidence that an inmate needs outdoor exercise); Zatko v. Rowland, 835 F. Supp. 1174 (N.D. Ca. 1993) (prisoner's claim that a virtually sunless existence violated his rights was frivolous where the amount of sunlight received depended on weather rather than the defendants' actions); and Larson v. Frossard, 1987 WL 6284 (N.D. Ill. 1987) (confining an inmate to a cell without sunlight did not violate the Eighth  Amendment. Other cases have upheld the right to outdoor exercise in cases where the prisoner is confined to continuous and long-term segregation or has a serious medical need for such exercise. See Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996); Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979); Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979).

Prisoner with list of over 50 correctional officials and employees as defendants in his federal civil rights lawsuit failed to say how any one of them had personally violated his rights, and failed to show that conditions at the prison had caused him, personally, any harm, so his lawsuit was properly dismissed.

                An Arkansas inmate apparently had no difficulty coming up with an extensive list of correctional officials and employees who he wanted to sue in a federal civil rights lawsuit over prison conditions. Indeed, more than fifty defendants were named. He complained about a wide variety of things, including "insufficient security" at the facility, "inadequate medical care," and "cruel and unusual punishment" in general conditions.

                Despite, however, repeated orders from the trial court, the prisoner had apparently insurmountable difficulty in being able to amend his complaint to state exactly how these more than 50 individuals "had violated his constitutional rights," and failed to allege any facts supporting "any individual defendant's personal involvement or responsibility" for the alleged violations.

                The prisoner, who is no longer at the prison, and sought only money damages, "also failed to allege how such conditions as insufficient security" there "had caused him injury," or to allege any facts supporting the claim of inadequate medical treatment. Additionally, as to all of his claims, he failed to allege that it was "he, rather than other prisoners, who was subjected to certain allegedly unconstitutional conditions." An appeals court therefore upheld the trial court's dismissal of his complaint. Ellis v. Norris, #97-1390, 179 F.3d 1078 (8th Cir. 1999).

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


Prisoner who failed to exhaust available prison grievance procedures could not pursue federal civil rights lawsuit for damages over correctional officer's alleged failure to protect him from assault by another prisoner; the fact that the grievance procedure did not provide a money damages remedy did not alter the result.

                A prisoner in a Virginia correctional institution was in protective custody status which required him to be kept physically separated from all other inmates. Despite this, he claimed that a correctional officer took him to a recreation area containing other inmates, and that the officer refused his requests that he be returned to his cell. When the officer, the sole correctional officer in the recreation area, left, another inmate attacked him, resulting in a black eye, a broken nose, and injuries requiring six stitches.

                The injured prisoner filed a federal civil rights lawsuit against the officer, alleging deliberate indifference to his safety. The federal trial court ruled that the prisoner's complete failure to file any formal or informal complaint with the prison on his claim that the officer failed to protect him precluded his lawsuit for damages.

                A section of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a) prohibits bringing any lawsuit "with respect to prison conditions" under federal law "until such administrative remedies as are available are exhausted."

                The court rejected the prisoner's argument that this provision did not apply because a money damages remedy would not have been available under the correctional system's internal grievance procedure. "While it could not compensate plaintiff monetarily for the injuries he suffered, it was a means by which the circumstance that led to or contributed to the attack on plaintiff, namely the breach of plaintiff's protective custody status, might be rectified or fixed to minimize the risk of recurrence."

                In summary, under Sec. 1997e(a)'s "plain language, a prison grievance procedure that does not award money damages is nonetheless an 'available' administrative remedy inmates must exhaust even if they seek solely monetary damages."

                Additionally, despite the prisoner's claim that he was "confused" about the requirements of the correctional system's grievance procedure, he was advised, on two occasions, of these procedures by an institutional "ombudsman," but failed to comply. Langford v. Couch, 50 F. Supp. 2d 544 (E.D.Va. 1999).

                EDITOR'S NOTE: Federal appeals courts are split on the question of whether inmates seeking solely monetary damages exhaust their administrative remedies in a prison grievance system that does not grant monetary relief. In Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), the court ruled that such inmates are required to exhaust prison administrative remedies, while in three other cases, federal appeals courts have reached the contrary conclusion. See Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir. 1998); and Garrett v. Hawk, 127 F.3d 1263 (10th Cir. 1997).


New York correctional officers were not liable for failure to protect prisoner in his cell from having hot coffee thrown at him when the attack was not reasonably foreseeable.

                A New York prisoner had been staying in his cell voluntarily during meals and recreation periods because of actual and perceived threats from other inmates based on the sex offenses for which he was incarcerated. He was awakened early one morning by an inmate assigned to distributing food to inmates who did not eat with the general population. This other prisoner demanded "sugar" (an extortion payment), and, when he refused to furnish one, threw the contents of a one-half gallon container of coffee through the bars at him.

                The prisoner inside then threw a cup of liquid at the other prisoner's face, upon which the other prisoner "went ballistic" and started screaming threats and obscenities. Two correctional officers allegedly did nothing but tell the other prisoner to get back to work. Before he did, however, he took the top from a five-gallon urn of hot coffee and threw it at the prisoner in the cell, causing extensive first and second degree burns.

                The injured prisoner sued the state of New York, alleging negligence in failure to protect him from assault. An intermediate appellate court found that the Court of Claims acted properly in finding no liability on the part of the state. The court below had accepted the testimony of a witness to the incident that the second attack on the plaintiff took place "within seconds" of when the plaintiff threw a liquid at the other prisoner, and that the second attack was therefore "not reasonably foreseeable." The court also found no evidence which would put the state on notice that the prisoner who allegedly assaulted the plaintiff was a "known, dangerous prisoner." Schittino v. New York, 692 N.Y.S.2d 760 (A.D. 1999).


Sheriff and deputies were not liable for arrestee's bizarre action of blinding himself by plucking out his eyes; while prisoner's behavior was "increasingly erratic," there was nothing which informed the defendants that he had an intent to harm himself; defendants attempted to care for prisoner and did not act with deliberate indifference.

                A Louisiana man was arrested for assault and battery. He underwent a psychotic episode while being detained in an isolation cell. During this episode, he physically blinded himself by plucking out his eyes.

                He filed a federal civil rights lawsuit against the sheriff and two deputies, arguing that they violated his rights by failing to protect him against this self-inflicted injury. A jury verdict was returned for the plaintiff against the sheriff and one deputy, but the trial judge granted a new trial. The trial judge then granted a judgment as a matter of law for the defendants.

                Upholding this result, a federal appeals court found that there was insufficient evidence that the defendants were "deliberately indifferent" to the plaintiff's medical needs. The plaintiff had not shown that they were "either aware or should have been aware of an unjustifiably high risk" that the prisoner "would hurt himself and failed to act."

                The prisoner was placed in an isolation cell used for violent prisoners. He was put on the waiting list for a local mental health facility after examination by a doctor. A second doctor found the prisoner to be delusional, but "not violent on exam." His behavior was bizarre, and included "pacing around his cell reading an upside down Bible," and declining a shower because he believed the devil would come up through the drain. While he kicked his cell door and urinated on himself, there was no suggestion of any "potentially self-harming behavior."

                Evidence in the case indicated that prisoners in isolation cells were monitored every ten to fifteen minutes. In this case, the evidence showed that the defendants "monitored" the plaintiff and tried to "care for him." While his actions "seem to have become increasingly erratic, nothing he did so clearly indicated an intent to harm himself that the deputies caring for him could have only concluded that he posed a serious risk of harm to himself." His action in blinding himself was "highly unusual and unpredictable, even for someone suffering a psychotic episode." Therefore, the defendants' actions were objectively reasonable and they were entitled to qualified immunity. Sibley v. LeMaire, #98-30301, 184 F.3d 481 (5th Cir. 1999).

Text: <http://www.law.utexas.edu/us5th/us5th.html>. [Cross-reference: Medical Care].


Placing prisoner in restraints for twenty-four hours after he threw water at correctional officer did not constitute cruel and unusual punishment; prisoner had no right to a hearing prior to being placed in restraints.

                An Iowa prisoner was placed in leg shackles and handcuffs after he threw water on a correctional officer. The warden of the facility had instituted a new restraint policy after disturbances in the prison caused by inmates throwing food trays, feces, and other objects at officers.

                Under the new policy, inmates caught spitting, throwing objects, or starting a fire were to be placed in restraints for twenty-four hours. In a federal civil rights lawsuit the restrained prisoner filed against Iowa prison officials, he complained that he did not receive a hearing before he was restrained, that he did not have notice of the restraint policy, and that he accidentally spilled water on the officer because he was tripped. He was joined in his lawsuit by two other prisoners who had also been restrained under the new policy, and all of them claimed that policy was cruel and unusual punishment. The trial court ruled against all three plaintiffs, but only the prisoner who threw the water appealed.

                Upholding the rejection of these claims, a federal appeals court noted that a prison disciplinary committee, which met after the prisoner had already been placed in restraints, found that he had only pretended to trip and that he intentionally threw the water. While the shackles "made it more difficult to sleep and relieve himself, he has not shown that he suffered a serious deprivation of 'the minimal civilized measure of life's necessities,'" as required for an Eighth Amendment claim.

      The condition of the restrained inmates was regularly checked, and the record of the case contained "examples of handcuffs being loosened and medical conditions being considered," which showed behavior that was very far from "deliberate indifference" to prisoner's needs. The appeals court also found that the prisoner did not have a "liberty interest" in not being restrained for this period of time, and "therefore no right to due process before the restraints were imposed." A twenty-four hour restraint did not "work a major disruption" in the prisoner's life. Key v. McKinney, #98-2749, 176 F.3d 1083 (8th Cir. 1999).

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

Prisoner who slipped and fell down stairs while being escorted to a gymnasium in full restraints did not state claim for cruel and unusual punishment.

                A prisoner in a Virginia jail claimed that his federal civil rights were violated when he slipped and fell down a flight of stairs "as a result of being placed in full restraints when he moved around" the jail. He also claimed that the jail denied him adequate medical care for his resulting injuries.

                On the date of the incident in question, correctional officers placed him in shackles and cuffed his hands to a waist chain for the purpose of taking him to the gymnasium for recreation. Neither of the two officers accompanying him, he claimed, was close enough to him to break his fall and he was unable to help himself because of the restraints.

                A federal trial court rejected the assertion that he was subjected to cruel and unusual punishment by the restraint. "Indeed, plaintiff has failed to show that placing him in restraints because he was considered a security risk was anything other than a reasonable security precaution committed to the broad discretion of prison officials." Further, the record was devoid of "any evidence indicating that the officers who were escorting" him when he fell "were in any way responsible for his fall."

                In the most simple terms, the prisoner "tripped and fell while walking in full restraints. This was an accident that at most was the result of negligence, perhaps even the plaintiff's negligence," but it did not give rise to a viable constitutional claim. The court also rejected the claim for inadequate medical treatment, based on the record of treatment provided. Pendergrass v. Hodge, 53 F. Supp. 2d 838 (E.D. Va. 1999). [Cross-reference: Prisoner Death/Injury].


Prisoner's claim that correctional officer used excessive force by shooting him in the leg during prison fight was not barred by disciplinary determination of prisoner's participation in incident, since excessive force could be found without implying invalidity of disciplinary conviction; evidence contradicting findings of disciplinary hearing could be presented.

                A California correctional officer shot a prisoner in the leg with a rifle while breaking up a prison fight. The injured prisoner filed a federal civil rights lawsuit against the officer, asserting that this was excessive force. After the incident in question, the officer filed a disciplinary report against the prisoner, accusing him of kicking another inmate on the ground in the head in the midst of the fight. The prisoner was found guilty of a disciplinary offense on the basis of this report.

                In the federal civil rights lawsuit, the plaintiff prisoner indicated that he intended to introduce evidence that he was an "innocent bystander during the scuffle, or that, to the extent he was physically engaged, it was in self-defense." The defendant officer sought an order prohibiting the plaintiff from presenting evidence which would contradict the findings of the prison disciplinary hearing.

                The trial court rejected this motion by the officer. It ruled that the prisoner was not prevented from presenting evidence contradicting the disciplinary proceedings factual findings. Under Heck v. Humphrey, 512 U.S. 477 (1994), the court acknowledged, a federal civil rights lawsuit for damages may not proceed if the suit requires a determination of the constitutionality of the procedures underlying a prisoner's confinement or its duration, if the conviction has not been overturned. Edwards v. Balisok, 520 U.S. 641 (1997), full text: <http://www.law.vill.edu/Fed-Ct/sct.html> extended Heck's holding to prison disciplinary proceedings.

                In the immediate case, however, the plaintiff prisoner did not challenge the "constitutionality of any relevant process, whether that accorded in his original conviction or in the disciplinary hearing," but rather the extent of the use of force. A finding that the force used was excessive did not depend on a determination that would imply the invalidity of either his original conviction or his disciplinary conviction. Further, the prisoner was not precluded by the disciplinary hearing's factual findings from presenting evidence disputing the extent of his involvement in the fight. Under California law, relitigation of a factual issue is only precluded if, among other requirements, the administrative hearing officer or a judge acted in "a judicial capacity." Because California courts have previously decided, see People v. O'Daniel, 194  Cal. App. 3d 715, 239 Cal. Rptr. 790 (1987) that prison disciplinary hearings do not satisfy this requirement, the prisoner could relitigate what happened during the fight in a subsequent proceeding. Marquez v. Guttierez, 51 F. Supp. 2d 1020 (E.D. Cal. 1999). [Cross-references: Firearms Related; Prisoner Discipline].


Prison's policy of not fully applying modified meal delivery schedule for Muslim prisoners during Ramadan religious holiday to prisoners in segregation imposed impermissible burden on religious freedom when court found no legitimate security or budgetary interest supported the difference; further proceedings ordered, however, on trial court's award of $9,000 in damages.

                A Colorado prisoner who is a follower of Islam wanted to observe the Muslim holy month of Ramadan, which requires fasting between dawn and sunset each day. The prison in which he was confined generally allowed Muslim prisoners to be escorted by security to a hall for breakfast at 4 a.m. and for supper at 6:30 p.m.         These provisions did not, however, apply to inmates in segregation. Instead, meals were provided to these inmates in their cells. The prisoner was housed in punitive segregation for possession of dangerous contraband during Ramadan, Therefore, he was "unable to eat his meals when delivered" in order to maintain his fast. He was, however, allowed to keep his meal trays in his cell until after sundown and to then eat what he could, including his supper and food he had saved from breakfast and lunch.

                He was able, in this manner, to maintain his fast for the entire month, but he contended, in a federal civil rights lawsuit against prison officials, that their actions violated his First Amendment right to practice his religion and rendered him "unable to enjoy the full spiritual experience of Ramadan." The trial court agreed and awarded the prisoner $300 per day or $9,000 for the entire month of Ramadan.

                A federal appeals court ruled that the defendants' failure to object to the denial of their motion for qualified immunity in the trial court barred consideration of the defense on appeal. The court rejected the argument that the burden placed on the prisoner's ability to fast during Ramadan "should be ignored because he overcame that burden and did fast."  That argument is "founded on the unacceptable notion that prison authorities may burden the observance of religious practices for no legitimate reason at all," and "makes the question of the legitimacy of government action dependent on the personal strength of the individual affected."

                Further, "it ignores the religious experiential aspects of Ramadan beyond the fasting itself." Testimony by both a religious leader and the plaintiff prisoner, the sincerity of whose religious beliefs was "undisputed", established that the "burden defendants placed on" him "diminished the spiritual experience he otherwise could gain through Ramadan." The appeals court found that there was no evidence that "restriction of religious freedom is a proper tool for deterring improper conduct," and rejected the defendants assertions that the security and budgetary impact of accommodating the prisoner would have been overly burdensome, since the trial court found that there were no legitimate budgetary and security interests behind the policy as applied to segregated prisoners.

                At the same time, the appeals court found that the trial court improperly based the amount of its award on the "abstract value of the constitutional right rather than on the actual injuries" the prisoner suffered. The appeals court ordered further proceedings on the proper amount, while disagreeing with the defendants that "we must therefore impose nominal damages of only $1" since there was evidence of mental or emotional distress that the prisoner suffered as a result of the defendants' actions "for which he may recover." Makin v. Colorado Dept. of Corrections, #98-1272, 183 F.3d 1205 (10th Cir. 1999).

Text: <http://www.kscourts.org/ca10/>.

Rastafarian prisoner's claim that prison requirement that he cut his hair violated his religious rights was not "frivolous" when there was, as of now, no evidence in the record concerning any security concerns which justified the requirement.

                A Missouri prisoner claimed that a prison requirement that he cut his hair, which he found offensive because of his adherence to the Rastafarian religion, violated his First Amendment rights. A federal trial court found the prisoner's complaint frivolous, denying him leave to proceed as a pauper in a federal civil rights lawsuit, and therefore dismissing the suit.

                Reversing, a federal appeals court noted that it did not disagree with the trial court that "security concerns permit prison officials" to require a prisoner to cut his hair, but there was no evidence in the record of the case, which was still at the initial screening stage, for applying the prior cases allowing such a rule on the basis of security concerns.

                The prisoner's "still-uncontested pleadings establish an intermittent, unexplained requirement that he cut his hair." A claim that this violated his First Amendment rights "is not frivolous." Cofer v. Schriro, #99-1852, 176 F.3d 1082 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-reference: Frivolous Cases].

                EDITOR'S NOTE: See also Williams v. Norris, No. 99-1743, 176 F.3d 1089 (8th Cir. 1999). Full Text: <http://www.wulaw.wustl.edu/8th.cir>. (Rastafarian prisoner's lawsuit against prison rule prohibiting him from wearing his hair in "dreadlocks" was improperly dismissed because prisoner complied with Prison Litigation Reform Act's "exhaustion of administrative remedies" requirement, since his grievance had been denied by the Warden and the Assistant Director of the state Department of Corrections at the time the court acted). [Cross-reference: Prison Litigation Reform Act: Exhaustion of Remedies].


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.

                An Iowa prisoner filed three grievances against a particular deputy sheriff, and all three of the grievances were denied by the deputy who was the subject of the grievance. The day after the third grievance was denied, two deputies awakened the prisoner and escorted him to an isolation cell. The deputy who was the subject of the prisoner's grievances then allegedly appeared and informed him that he had been placed in administrative segregation for filing repeated grievances.

                The prisoner remained in administrative segregation for three days and subsequently filed a federal civil rights lawsuit against the deputy and the administrator of the facility, arguing that his segregation under these circumstances violated his First Amendment right to petition for redress of grievances.

                The trial court granted summary judgment to the defendant administrator, finding insufficient evidence of his involvement in the plaintiff's segregation, but awarded $1 in nominal damages to the prisoner against the correctional officer on the First Amendment claim.

                A federal appeals court ruled that the trial judge abused his discretion by awarding only nominal damages of $1 for the deputy's violation of the prisoner's First Amendment rights. "In our opinion, the $1 compensatory damage award was patently insufficient to compensate" the plaintiff for "the injury he suffered by being placed in segregation in retaliation for exercising a constitutional right." The court suggested that an amount "in the vicinity of $100 per day for each of the three days" would be appropriate.

                The appeals court also asked the trial court to "reconsider awarding punitive damages" against the deputy. To deliberately punish the prisoner for exercising his right to submit grievances and "successfully" intimidate him "from filing further grievances" amounted to "reckless or callous indifference" to the prisoner's rights "and may call for deterrence and punishment over and above that provided by a compensatory award." Trobaugh v. Hall, #98- 4031, 176 F.3d 1087 (8th Cir. 1999).

Text: <http://www.wulaw.wustl.edu/8th.cir>. [Cross-references: Damages: Compensatory; Damages: Punitive; First Amendment].

                EDITOR'S NOTE: See Maxwell v. Mason, 668 F.2d 361 (8th Cir. 1981) (compensatory damages of $100 per day of solitary confinement was not excessive or arbitrary); Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997) ($1,000 punitive damage award was appropriate for unconstitutionally denying inmate incoming mail in indifference to First Amendment rights); Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997) (discussing the standard for awards of punitive damages).


Termination of female correctional officer at the end of her probationary period was not sex discrimination when her performance evaluations showed that she was "not qualified" for the job; under these circumstances, the court did not need to reach the issue of whether male co-workers were treated differently.

                A newly hired female correctional officer was terminated when she allegedly failed to perform up to standards during her probationary period of 180 days. She filed a federal civil rights lawsuit under Title VII, 42 U.S.C. Sec. 2000e and 42 U.S.C. Sec. 1983, and also asserted state law claims. She alleged that she was terminated because of her sex.

                In defense, the correctional institution stated that the officer had been rated as "below expectations" in four evaluation categories out of eight in her mid-probation evaluation. She was rated as having "difficulty showing authority with supervising inmates," giving "incorrect range counts that on different occasions have caused count to be late," and having been seen "laughing and talking to inmates for several minutes causing a lack of professionalism." In the final evaluation at the end of the probation period, her supervisor, another female officer, rated her as "below expectations" in all eight evaluation categories, stating that she "seems unable to grasp the concept of security," "does not follow procedures," and "needs to be closely monitored."

                Upholding summary judgment for the correctional institution, a federal appeals court found that the plaintiff had not met her burden of showing that she "was qualified" for the job. In order to be qualified, she must show that she was "meeting her employer's legitimate expectations and was performing to her employer's satisfaction." In this case, the plaintiff did not even argue that she was qualified for the position of correctional officer, or "seriously dispute the prison's claims" that she had "difficulty supervising inmates, gave inaccurate 'range counts,' did not respond properly to prison alerts, permitted too many inmates out of their cells, inappropriately engaged in conversation with inmates, and did not properly keep inmates in order during 'mass movement.'"

                Instead, she argued that a correctional counselor had observed her, on certain occasions, performing satisfactorily. This individual testified, however, that he did not work with her on a regular basis. Secondly, she contended that similarly-situated male employees were not terminated for doing some of the same improper acts committed by her and, thus, "she was qualified" for the position.

                The appeals court found this later factor irrelevant in light of the fact that she had not shown that she herself was qualified for the job. She could not meet her burden "of showing that she met her employer's legitimate expectations simply by claiming that others may have not met some of those expectations as well."

                Even if she were able to surmount this obstacle, however, the appeals court found her evidence insufficient to show that the employer's asserted reason for her termination--her low performance ratings--was "pretextual." She had not shown that similarly situated male co- workers who committed acts comparably serious were not terminated. Warfield v. Lebanon Correctional Institution, #98-3588, 181 F.3d 723 (6th Cir. 1999).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-reference: Employment Issues].


Federal trial court rules that prohibition of blanket policy of strip searching all arrestees as they entered county jail regardless of their alleged offense or any reasonable suspicion that they had weapons or contraband violated clearly established Fourth Amendment rights; court expresses concern about jail's security problems, but finds that current appeals court caselaw precludes blanket strip searches despite this issue.

                A man was arrested following a domestic disturbance with his estranged wife, and sent to a county jail by a judge. Upon arrival at the jail, he was subjected to a strip/visual body cavity search, pursuant to a practice of conducting such searches of all prisoners entering the facility. This search is conducted regardless of whether a newly admitted prisoner is being held for a misdemeanor charge or a violent felony or drug charge.

                Indeed, evidence in a federal civil rights lawsuit filed by the arrestee over the search indicated that the officer conducting the search "has no information" concerning the charges against the prisoner, and no information "indicating whether there is a reasonable suspicion" that the prisoner may be concealing contraband.

                The trial court found that prior law from the area's federal appeals court had long ago established that the Fourth Amendment precludes correctional officials from performing strip searches of arrestees charged with misdemeanor or minor offenses, "absent a reasonable suspicion that the person being searched is concealing weapons or other contraband," which can be based on the crime charged or on the circumstances surrounding the particular arrest. See Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987). Therefore, any policy authorizing blanket strip searches of arrestees without the required reasonable suspicion is unconstitutional. See also Walsh v. Franco, 849 F.2d 66 (2d Cir. 1988), reaffirming this ruling.

                The trial court therefore declined to consider the jail's "generalized security concerns" as a justification for a blanket policy of strip searches. In particular, it rejected the argument that the mixing of arrestees along with the general jail population justifies a blanket strip search policy. The court rejected a qualified immunity claim filed on behalf of the county sheriff, since the unconstitutionality of the policy in question was "clearly established."

                At the same time, the court noted that it acted with "great pause in striking down" the policy, in light of evidence of difficult security concerns including the presence of gang members and a number of occasions on which prisoners were found to possess weapons or drugs during a strip search. "Given the state of the law, however, the court could not properly consider this evidence." Shain v. Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999).


Prisoner was properly required to work in prison cafeteria despite the overturning of his conviction on appeal, when state was pursuing further appeals and overturning of conviction was not final; neither convicted prisoners or pretrial detainees were "employees" for purposes of Fair Labor Standards Act minimum wage provisions.

                A Pennsylvania prisoner convicted of various criminal charges was required to work in the prison cafeteria or else face administrative misconduct charges. He filed an appeal and an intermediate appeals court vacated his conviction, ordering a new trial. The state, however, pursued various subsequent motions for rehearing and then appealed to the state's Supreme Court. Only after these motions and the appeal were denied was the prisoner released from his prison cafeteria assignment.

                He filed a federal civil rights lawsuit asserting that he had been compelled to work while he was a pretrial detainee, and that this violated his constitutional rights under the Eighth, Thirteenth and Fourteenth Amendments. He also asserted that he was entitled to be compensated for his work under the minimum wage provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 206(a).

                A federal appeals court ruled that the prisoner was a "duly convicted" inmate who could be compelled to work in the prison cafeteria until the date the trial court regained jurisdiction following the state Supreme Court's denial of the state's petition for allowance of appeal. The appeals court also rejected the argument that pretrial detainees and convicted prisoners "are covered by the FLSA minimum wage section for services performed in intra- prison work."

    "A duly convicted prisoner continues in that status until his or her appeal becomes final even if it results in a reversal of the conviction." And "each circuit [court of appeals] that has addressed the question has concluded that prisoners producing goods and services used by the prison should not be considered employees under the FLSA." Only in a case where the prisoners worked for an outside company in competition with other private employers "and where this competition tended to undermine compliance with the FLSA" did a federal appeals court, in Watson v. Graves, 909 F.2d 1549 (5th Cir. 19900, find the FLSA applicable. Tourscher v. Horn, #97-3671, 98-3499, 184 F.3d 236 (3rd Cir. 1999).

Text: <http://www.law.vill.edu/Fed-Ct/ca03.html>.

                EDITOR'S NOTE: See also Villarreal v. Woodham, 113 F.3d 202 (11th Cir. 1997) (FLSA minimum wage provision did not apply to work pretrial detainees performed since, like convicted prisoners, they are not employees).


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

Cofer v. Schriro, #99-1852, 176 F.3d 1082 (8th Cir. 1999).[10-11]
Dial v. Vaughn, 733 A.2d 1 (Pa. Cmwlth. 1999).[3]
Ellis v. Norris, #97-1390, 179 F.3d 1078 (8th Cir. 1999).[4]
Key v. McKinney, #98-2749, 176 F.3d 1083 (8th Cir. 1999).[7-8]
Langford v. Couch, 50 F. Supp. 2d 544 (E.D.Va. 1999).[5]
Makin v. Colorado Dept. of Corrections, #98-1272, 183 F.3d 1205 (10th Cir. 1999).[9-10]
Marquez v. Guttierez, 51 F. Supp. 2d 1020 (E.D. Cal. 1999).[8-9]
Pendergrass v. Hodge, 53 F. Supp. 2d 838 (E.D. Va. 1999).[8]
Richard v. Reed, 49 F. Supp. 2d 485 (E.D.Va. 1999).[3-4]
Schittino v. New York, 692 N.Y.S.2d 760 (A.D. 1999).[6]
Shain v. Ellison, 53 F. Supp. 2d 564 (E.D.N.Y. 1999).[13-14]
Sibley v. LeMaire, #98-30301, 184 F.3d 481 (5th Cir. 1999).[6-7]
Tourscher v. Horn, #97-3671, 98-3499, 184 F.3d 236 (3d Cir. 1999).[14-15]
Trobaugh v. Hall, #98-4031, 176 F.3d 1087 (8th Cir. 1999).[11-12]
Warfield v. Lebanon Correctional Institution, #98-3588, 181 F.3d 723 (6th Cir. 1999).[12-13]
Williams v. Norris, No. 99-1743, 176 F.3d 1089 (8th Cir. 1999).[11]

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