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

September, 2000 web edition

Cite this issue as 2000 JB Sep (web edition)

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(Published as VOLUME 2000 NUMBER 285)

Defenses: Absolute Immunity
Defenses: Soldiers' & Sailors' Act
Disability Discrimination
Employment Issues
Medical Care
Prisoner Injury/Death
Prison Litigation Reform Act: Exhaustion of Remedies
Prison Litigation Reform Act: "Three Strikes" Rule
Prisoner Assault: By Inmate
Prisoner Assault: By Officer
Prisoner Discipline
Procedural Discovery
Sex Discrimination
Sexual Assault
Index of Cases Cited


Verbal judicial order that a man be kept in jail and signed out to work for a private construction company, where he worked without any pay, even if unlawful or erroneous, was a "facially valid" judicial order, so that county sheriff was entitled to absolute immunity for carrying it out.

            A man serving a jail sentence for violation of probation based on some alcohol related offenses believed that he was being released from jail at the end of his sentence, but he was instead taken before a local judge and arraigned on an unrelated misdemeanor drug charge. In a later proceeding, without any written order modifying the man's sentence, he was told in the judge's chamber's that he was to be returned to the jail and would be working for a private individual "as part of your rehabilitation to get you off drugs and alcohol." This private individual then signed him out of the jail on a number of occasions and had him do work for his construction company, never paying him any wages.

            After his release, the detainee filed a federal civil rights lawsuit against a number of defendants, including the judge and the sheriff, arguing that he was improperly kept in custody in the jail and improperly forced to work for the private company.

            The federal court held that the judge was entitled to absolute immunity from the claim arising out of the modification of the plaintiff's sentence. Whether improper or not, the modification took place before the judge while she was wearing her robes in her chambers, and the criminal case was properly before her, so she was acting in her judicial capacity.

            The sheriff, the court ruled, was also entitled to absolute quasi-judicial immunity, since he was carrying out a "facially valid", even if allegedly unlawful or erroneous judicial order. The court also found that it was irrelevant, for purposes of the federal civil rights claim, whether the judicial order was written or verbal. Finally, the court rejected the argument that the county was somehow liable, since there was no showing that the prisoner was kept in jail and required to work pursuant to any county official policy or custom. Mauldin v. Burnette, 89 F. Supp. 2d 1371 (M.D. Ga. 2000).


Former correctional officer, now on active military duty, was entitled to a stay in prisoner's federal civil rights lawsuit against him for alleged assault; federal statute allows a stay of any civil lawsuit during a plaintiff or defendant's military service and for up to sixty days thereafter.

            A Texas prisoner sued a former correctional officer who he claimed had assaulted him. The defendant was not served with the complaint, and was currently on active duty with the United States Air Force. The Attorney General of the State of Texas filed a "friend of the court" motion to dismiss the lawsuit under the federal Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. Secs. 501-591. This law provides persons in active military service with relief from having to be involved in court proceedings unless the court determines that their ability to act as a plaintiff or defendant is "not materially affected by reason of this military service." While the prisoner objected, arguing that the Texas Attorney General, not a party in the case, had no "standing" to ask for such relief, the trial court found that the law gave it the authority to grant relief under the Soldiers' and Sailors' Act on its own motion, and it did so, dismissing the lawsuit without prejudice.

            A federal appeals court agreed that the trial court could act on its own motion under the statute, but found that the law in question did not authorize the complete dismissal of the lawsuit, but only a stay during the period of the party's military service and for a limited period thereafter. The appeals court further noted that, due to the plaintiff inmate's imprisonment "and lack of means and information" to keep up with the defendant's military status and location, the prisoner would have "little realistic chance of reinstating the action in a timely manner" if it were dismissed.

            The appeals court therefore modified the dismissal of the lawsuit to a stay for the period of the defendant's active military duty and 90 days thereafter. (The statute's language allows a period of up to 60 days after active military service, but the trial court had extended the statute of limitations for a period of up to 90 days after the defendant's release from military duty, and, since neither party objected to that longer time period, the appeals court kept that time period as the time of the stay it ordered). White v. Black, #98-21058, 190 F.3d 366 (5th Cir. 1999).

Text: <http://www.law.utexas.edu/us5th/us5th.html>.{Cross- reference: Prisoner Assault: By Officer].


Being able to handle inmates, including the possibility of physical confrontation, was an essential job function of her position as a deputy sheriff, so that terminating her after she received an injury preventing her from doing so was not disability discrimination.

            A female deputy sheriff in California was assigned job duties that included transporting prisoners from the jail through a tunnel to various courtrooms, which brought her into daily contact with inmates. The potential existed for physical confrontation with prisoners on a daily basis also. She suffered a non-work related injury when a horse fell on her. Her injuries resulted in a limitation on her range of motion and upper body strength, as well as discomfort usually associated with arthritis.

            While her doctors said she could return to work, they advised her not to lift anything or get into a situation where she could be hit in the chest. She was also unable to fire a shotgun, since that would jar her chest. She was told that she would not be able to return to work, as no light duty work existed. She was terminated, since her primary job description involved working with inmates. She specifically declined placement as a dispatcher, a job she had previously held, or as a booking clerk.

            She sued her former employer for disability discrimination. Rejecting this claim, the court found that the ability to restrain inmates, which she did not have any longer, was an "essential function" of her job as a deputy. She therefore was not an "otherwise qualified" disabled person, capable of doing her job with reasonable accommodation. The federal Americans With Disabilities Act (ADA), the court noted, does not require an employer to create a light-duty position when one does not already exist. Hoskins v. Oakland County Sheriff's Dept., 44 F. Supp. 2d 882 (E.D. Mich. 1999).


Officer's inappropriate use of force against a prisoner, combined with an off-duty incident in which he engaged in lewd dancing, made offensive remarks to members of the public, and broke property in a gay bar, together supported his termination for conduct unbecoming an officer.

            An Iowa police officer was transporting a handcuffed prisoner who accused him of excessive force. While inside the booking area of a detention facility, the officer turned to argue with the prisoner, shoving him hard against a wall and then securing him with leg irons with the assistance of other officers.

            While restraining the prisoner, the officer put his knee on the back of the prisoner's neck and sat on him. He was found to have used inappropriate force, and received a reprimand for this behavior. In a separate incident while off-duty, he allegedly engaged in "lewd dancing," which was characterized as a "mock anal sex dance," made offensive remarks to members of the public, and destroyed property (a pool cue) in a gay bar. After an investigation, the officer was terminated.

            The Supreme Court of South Dakota upheld the discharge, finding that the combination of the incident with the prisoner and the off-duty incident demonstrated "conduct unbecoming an officer" supporting a finding of just cause for firing. Green v. City of Sioux Falls, 2000 SD 33, 607 N.W. 2d 43 (S.D. 2000).

Text: <http://www.sdbar.org/opinions/default.htm>.


County jail nurse and doctor were not entitled to qualified immunity from claim by deceased prisoner's estate that they failed to respond to his consistent complaints over several months of increasingly severe stomach pain by recognizing the need for further diagnosis; prisoner died of cancer after early discharge from jail.

            A prisoner in a Florida county jail experienced burning abdominal pains for approximately five months. He was given various non-prescription medicine for stomach problems and was primarily examined by jail nurses, who determined that he was not ill enough to see the doctor, who was only at the jail for three to four hours per week. When the symptoms became more pronounced, the doctor prescribed a liquid diet, tylenol and pepto-bismol over the phone without examining the prisoner.

            When he finally did examine the prisoner sometime later, the doctor observed that the prisoner was in acute pain and prescribed an "anti-gas medication." The symptoms continued and allegedly worsened for several months, with the prisoner unable to digest food, vomiting, etc., and experiencing extreme pain, the doctor allegedly failed to adequately provide treatment or pain medication. The prisoner allegedly told a family member that he was "dying" and would not make it out of the jail alive, and was losing weight. Tests ultimately indicated an intestinal obstruction requiring hospitalization. On the day of the hospitalization, a jail nurse estimated that the cost of the hospitalization would be approximately $8,000 to $15,000 per day or higher.

            On the next day, the prisoner was "prematurely released from the jail" and then discharged from the hospital without diagnosis two days later. Several days later, he was admitted to a veterans hospital and diagnosed with terminal cancer. He subsequently died. A federal civil rights lawsuit against the county, its doctor, and its head nurse at the correctional facility claimed that defendants acted with deliberate indifference to the prisoner's serious medical needs. The trial court entered summary judgment for the defendants, finding that the allegations, even if true, did not show deliberate indifference.

            A federal appeals court reversed, in part. It agreed that the alleged failure of the head nurse and doctor to diagnose colon cancer in the prisoner, while perhaps extreme negligence, did not rise to the level of deliberate indifference, as required to show a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. At the same time, it found that there was a genuine issue of fact as to whether or not the physician and head nurse were deliberately indifferent to the serious medical need for further diagnosis, given the prisoner's worsening condition and consistent complaints of severe pain, unaffected by the medications provided.

            The court also stated that, so far as the prisoner's pain was concerned, "a jury could find that the medication provided" to the plaintiff prisoner "was so cursory as to amount to no care at all."

            The defendant doctor and nurse were denied qualified immunity, since the court found it was clearly established, in February of 1997, that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment. The appeals court found, however, that there had been no showing that any official county policy or custom was the cause of the alleged violations. McElligott v. Foley, No. 98-3451, 182 F.3d 1248 (11th Cir. 1999).

Text: <http://www.law.emory.edu/11circuit/index.html>.


Owners and operators of gas pipeline near Texas correctional facility could not be sued for alleged Eighth Amendment violation based on leak which subjected 1,000 prisoners and correctional employees to exposure to gas when they were unable to be evacuated; defendants were not acting under color of law and did not act with deliberate indifference to plaintiffs' constitutional rights.

            Over 1,000 persons, inmates and employees of a Texas correctional facility, brought claims against the owner and operator of a gas pipeline and contractors who sold, installed, and maintained the pipeline's valves, after there was a leak in the pipeline carrying liquefied petroleum gas near the prison. The lawsuit asserted claims for assault, negligence, gross negligence, nuisance, and products liability. The plaintiffs also later added a claim for cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.

            The lawsuit was brought in federal court, and it was argued that the Eighth Amendment claims was a basis for jurisdiction in the federal court. The Eighth Amendment theory was that the plaintiffs rights under it were violated because they were forcibly exposed to gas when they were unable to be evacuated and confined to their cells.

            Noting that none of the defendants were governmental or state actors, however, the federal court granted a motion to dismiss the lawsuit. To state an Eighth Amendment claim, the court stated, it must be shown that the defendant violated someone's rights under that amendment and acted "under color of state law."

            In this case, the defendants "merely operated a pipeline in the vicinity of a state jail--this is clearly a private enterprise." The court also noted that the plaintiffs failed to show the second necessary element of an Eighth Amendment claim also--that the defendant acted "with the requisite intent--deliberate indifference." For prison officials to be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement, they must be shown to have known of and disregarded an excessive risk to inmate health or safety.

            With the elimination of the Eighth Amendment claim, the court found no basis to retain federal court jurisdiction over the state law claims either. Abarca v. Chevron, U.S.A., Inc., 75 F. Supp. 2d 566 (E.D. Tex. 1999). [Cross-reference: Prison Conditions: General].


Wisconsin appeals court rules that a state notice of claim statute was not an "administrative remedy" that a plaintiff prisoner was required to "exhaust" before proceeding with his federal civil rights lawsuit, filed in state court, challenging the exclusion of all material containing nudity or pornography from state prisons.

            A prisoner in a Wisconsin state correctional facility filed a lawsuit challenging a state administrative code provision which bans all materials depicting "nudity" or "pornography" from state prisons. The state trial court denied his petition because it found that he failed to exhaust all available administrative remedies by not filing a notice of claim under a state statute, Wis. Stats. Sec. 393.82. There was no argument that the prisoner failed to exhaust his remedies under the prison grievance procedures.

            In making this ruling, the court relied on 42 U.S.C. Sec. 1997e(a), a provision of the federal Prison Litigation Reform Act (PLRA) requiring a prisoner to exhaust available administrative remedies before proceeding with a lawsuit over prison conditions.

            An intermediate Wisconsin appeals court found that the state notice of claim statute was not an "administrative remedy" which the prisoner had to exhaust to comply with the provisions of the PLRA before bringing a federal civil rights lawsuit challenging prison conditions.

            (Note that in this case, the federal civil rights lawsuit involved was brought in state court, since such claims can be brought in either federal or state court systems). The appeals court therefore remanded the case for further proceedings on the underlying merits of the case and on whether the prisoner was indigent and therefore could proceed as a pauper without paying the full filing fee. Ledford, State Ex Rel., v. Cir Ct. for Dane County, No. 99-0939-W, 599 N.W.2d 45 (Wis. App. 1999). [Cross-reference: First Amendment; Mail].

Federal appeals court upholds jury award totaling $83,250 against a correctional officer who broke a prisoner's nose while beating him in his cell and against fellow officer who was "deliberately indifferent" to prisoner's safety.

            An Ohio prisoner claimed that two correctional officers had used excessive force against him (with one of them applying the force and the other "conspiring and assisting" the first in using that force).

            The trial court rejected the defendant officers' claims that the case should be dismissed because the plaintiff prisoner had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a). The trial court held that this requirement did not apply in an excessive force case since such a case did not involve "prison conditions" within the meaning of the statute.

            At trial, the first officer admitted to beating the prisoner about the face and breaking his nose and also testified that the other officer had aided in the planning and commission of the assault. The second officer denied, and continues to deny, any involvement in or knowledge of the beating.

            The jury returned a verdict against both defendants, finding that one officer used excessive force against the prisoner and that the other officer was deliberately indifferent to the prisoner's safety. It awarded $8,250 in compensatory damages jointly against the two defendants and imposed $45,000 in punitive damages against the officer who used the force and $30,000 in punitive damages against the other officer.

            In a post-trial motion, the judge ruled that the prisoner had in fact exhausted his administrative remedies, even though he had ruled that was not required in the case.

            A federal appeals court ruled that claims of excessive force are lawsuits over prison conditions, requiring the exhaustion of remedies under the PLRA. However, the court also ruled that when an inmate's claim arose before the effect date of the PLRA, but the complaint was filed afterwards, the exhaustion of administrative remedies requirement was satisfied by "substantial compliance," in this case by the prisoner's involvement in the investigation into the officer's actions pursuant to a "use of force" procedure set forth in the Ohio administrative code, which led to a determination that the officer had in fact assaulted the inmate.

            The prisoner had not filed a standard inmate grievance, but the court found that "essentially the same" process would have occurred had he done so.

            The appeals court therefore upheld the award of damages against the two defendants. Wolff v. Moore, No. 96-4080, 199 F.3d 324 (6th Cir. 1999).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-reference: Prisoner Assault: By Officer].


Federal appeals court holds that frivolous lawsuits filed prior to the effective date of the Prison Litigation Reform Act's "three strikes" rule could count as "strikes" for purposes of provision barring prisoner from pursuing a further federal civil rights case as a "pauper" without paying the full filing fee in the absence of a threat of imminent physical danger; trial court rejected prisoner's claim that he was facing an imminent physical peril from an alleged "conspiracy" of correctional officials to injure or kill him.

            A New York prisoner filed a complex federal civil rights lawsuit against thirty-four law enforcement officials, ranging from police officers to parole officials, judges, corrections officers, the FBI director, and the U.S. Attorney General. His complaint claimed that he had been illegally arrested, prosecuted, and incarcerated on drug charges, that his prior parole had been improperly revoked, that he had been "framed," and that corrections officials were engaged in a twenty-year "conspiracy" to violate his right to access to the courts and to injure or kill him. The prisoner, being indigent, sought to proceed as a "pauper" without immediately paying the full filing fee.

            Several defendants in the lawsuit sought dismissal of the lawsuit under 28 U.S.C. Sec. 1915(g), part of the Prison Litigation Reform Act, based on the plaintiff having had at least three prior lawsuits brought by him dismissed as frivolous. The prisoner attempted to invoke an exception to this section of the statute, arguing that he was in "imminent danger" of physical injury because of the alleged "conspiracy" by corrections officials.

            The trial court found that the prisoner had, in fact, filed at least three previous lawsuits dismissed as frivolous, and further ruled that the prisoner was not in "imminent danger" within the meaning of the statute so as to justify allowing the suit to proceed without payment of the filing fee. When the prisoner failed to pay the full fee within thirty days of the date of that decision, the court entered judgment against him.

            The prisoner appealed and asked to proceed with the appeal as a pauper without paying the full filing fee. The appeals court denied this motion. In doing so, it ruled that lawsuits filed prior to the enactment of the PLRA's "three strikes" provision may nevertheless be counted for purposes of determining whether that provision applies. Welch v. Galie, #99-0229, 207 F.3d 130 (2nd Cir. 2000).

Text: <http://www.tourolaw.edu/2ndCircuit>.


Correctional officer who demonstrated that he was not assigned to work in the prisoner's division on the date that another inmate attacked him in the shower and in his cell could not be held personally responsible for failure to prevent the attack, since he had no personal involvement in the incident.

            A prisoner at an Illinois county correctional facility sued six employees of the department, alleging that they failed to protect him against a beating by another inmate in a shower area and a second beating a short time later that same day in his cell by the same prisoner. He claimed that during both beatings, there was a correctional officer nearby who was "sound asleep." The beatings resulted in facial injuries, including a broken nose, a broken eye socket, lacerations on his lip, a loosened tooth, etc., as well as a broken finger.

            The prisoner sued the six defendants in both their individual and official capacities. One of them was a captain who the prisoner claimed was on duty in his division on the date of the incident. The captain moved for summary judgment on the basis that "uncontroverted evidence" showed that he was not working as a captain in the prisoner's division on that date, but instead was working as a lieutenant in another division. He was not assigned to the prisoner's division on the date of the incident, "did not work in, did not cover any shift in, and was not physically present for any reason" in the prisoner's division on that date.

            In summary, whatever the truth of what happened to the prisoner, this defendant had no personal involvement in it in any way, and the court quickly agreed that he could not be held individually responsible for it, therefore. The court entered summary judgment in favor of the captain in his individual capacity. It further noted that the claim against the captain in his official capacity was essentially a claim against the county. Since such a claim against him was "redundant" of his official capacity claims against the other five named defendants, which included the county sheriff and the correctional superintendent, it was appropriate to dismiss the official capacity claim against him also. Brooks v. Shahan, 50 F. Supp. 2d 821 (N.D. Ill. 1999).


Trial court improperly granted summary judgment in favor of three correctional officers on prisoner's claim that they beat him as he was ending a telephone call and continued to assault him after he was restrained; no particular level of injury was necessarily required to show the excessive use of force, and trial court's conclusion that the force used was not excessive because the prisoner's injuries were minimal is reversed on appeal.

            A Pennsylvania inmate's federal civil rights lawsuit asserted that he was violently beaten by three correctional officers as he was in the process of hanging up the telephone upon completing a call. He claimed that was then shackled and slammed into a cell wall, with one of the officers choking him, and then transported back to his cell where he was "subjected to further physical and verbal abuse prior to being unshackled."

            He suffered various abrasions or scratches during the incident. His lawsuit named the superintendent of the facility as a defendant as well as the three officers allegedly involved in the incident. The trial court granted summary judgment to the defendants, finding that the plaintiffs' version of the incident, a "vicious, prolonged attack," would have "resulted in far greater injuries than those which he indisputably sustained. It therefore found that his claim of excessive force was unsupported by the medical evidence.

            Reversing, and reinstating the lawsuit, a federal appeals court said that the question presented was "whether a prisoner who testifies that he was violently beaten by three prison guards, but who adduces no objective evidence of anything but de minimis [minimal] injuries, may survive a summary judgment motion on his Eighth Amendment claim. We conclude that he may."

            The appeals court pointed to the U.S. Supreme Court's ruling in Hudson v. McMillian, 503 U.S. 1 (1992), in which the Court concluded that proof of "significant injury" was not an independent requirement for an Eighth Amendment claim of excessive and wanton force. Instead, in Hudson, the Court focused on the force used. The appeals court concluded that "although the degree of injury is relevant for any Eighth Amendment analysis, there is no fixed minimum quantum of injury that a prisoner must prove that he suffered through objective or independent evidence in order to state a claim for wanton and excessive force."

            In this case, the court concluded that if a jury believed the prisoner's version of the incident, that three correctional officers assaulted him "by repeatedly punching him in the head, stomping on his back and neck,  slamming him into a wall, choking him, threatening him, and nearly rendering him unconscious--all while he was handcuffed to a waist restraint belt, and at some points, even restrained by leg shackles--simply because he did not promptly respond to an order to end a phone call," then there would be "no question that the defendants' use of force was excessive in light of the circumstances confronting them."

            The appeals court did not say that this was necessarily the case, merely that the wrong legal standard was used to reach the result, and that summary judgment was inappropriate on the basis of the record presented. Brooks v. Kyler, No. 98-7626, 204 F.3d 102 (3rd Cir. 2000).


Court rejects prisoner's claim that officers were liable for allegedly directing the filing of false disciplinary reports against him; officers were not even involved in two of the reports and the guilty finding on the third was overturned, restoring good time lost; prisoner was already in disciplinary confinement for numerous other infractions and suffered no significant hardship.

            A Florida prisoner claimed that a number of correctional officers violated his civil rights by directing the issuance of "false disciplinary reports" against him. The prisoner in question had been a disciplinary problem over time and was disciplined for lying to prison personnel, engaging thereafter in "almost constant disruptive, abusive and bizarre behavior." He received five disciplinary reports in less than a month, four of which were issued while he was already in disciplinary confinement.

            The prisoner was found guilty of a number of other infractions and lost good time as a result. He claimed that a number of these disciplinary reports were later overturned on appeal, and sued officers for their alleged involvement in making false accusations against him.

            The trial court noted that none of the defendants named were shown to have had anything to do with the issuance of two of the reports. None of them were listed as the filing or witnessing officer or as the officer in charge of the disciplinary hearing. Accordingly, whatever the merits of the prisoner's claims, these officers could not be held liable.

            On a third disciplinary report, the court pointed out, the prisoner himself said that the guilty finding was overturned, so that the "loss of good time credit must have been similarly overturned." Accordingly, the prisoner had not shown that the length of his incarceration was lengthened as a result of the report. The court also found no evidence, even if the prisoner wound up serving some days of disciplinary confinement, that he was faced with an "atypical and significant hardship" different than the "ordinary incidents of prison life."

            In his case in particular, the plaintiff had a "history of receiving disciplinary reports while already in disciplinary confinement." So "in the absence of any evidence to the contrary, it is unreasonable to assume that the plaintiff actually served the days assessed" for the third disciplinary report before it was overturned, "because Plaintiff was already in restrictive confinement for numerous other disciplinary reports." Yet, even if he had, there was no indication that conditions in disciplinary confinement at the facility were in "any significant way different from the conditions imposed upon inmates" in administrative, protective, or medical confinement at the facility, so there was no significant deprivation sufficient to show a due process violation. Gonzalez v. Monty, 89 F. Supp. 2d 1347 (S.D. Fla. 2000).


County jail officials were entitled to assert attorney-client and work-product privileges to withhold disclosure of documents prepared in anticipation of U.S. Justice Department lawsuit over jail conditions, even in a "closely related" separate lawsuit brought by former inmates seeking money damages; having asserted such privileges, however, they would not be allowed to make use of the documents at trial for any purpose, including using them to establish that their decisions about the jail were made based on legal advice.

            Former prisoners at an Oklahoma county jail brought a federal civil rights lawsuit seeking money damages for injuries they claimed were caused by allegedly unconstitutional conditions at the facility. Defendants in the lawsuit included the county board of commissioners and the county sheriff's office.

            The plaintiff prisoners in the lawsuit sought discovery of various documents relating to the jail. When the defendants refused to produce some of them, the plaintiffs brought a motion to compel their disclosure. Some of the documents sought had been prepared by the county in anticipation of a threatened lawsuit against it by the U.S. Department of Justice over conditions at the jail.

            The federal trial court ruled that the defendants were entitled to assert attorney-client privilege and work product protection for documents which involved communications with their legal counsel or documents prepared in anticipation of the threatened federal government lawsuit. The work product protection for documents prepared for the federal government lawsuit also applied in the prisoners' lawsuit because both lawsuits involved claims of injuries to inmates at the jail from alleged unconstitutional conditions there and they were therefore "closely related."

             The trial judge, having examined the documents in question, found that they were protected by these privileges, and that the plaintiffs had also failed to show that they had a "substantial need" for these documents or "that they would be unable, without undue hardship, to obtain the substantial equivalent" of the documents by other means. The majority of the documents "contain the mental impressions, conclusions, opinions, and legal theories of Defendants' attorneys, which the Court would protect in any event."

            At the same time, the judge cautioned the defendants that they could not use the privileges as both "shield and sword." Their primary defense to the former inmates' lawsuit "will be that they did not act with 'deliberate indifference'--the liability standard for the civil rights claims asserted" in the complaint." The court reasoned that they "will likely argue that they relied on legal advice in making certain decisions" about the jail.

            The plaintiffs argued that the defendants "should not be permitted to argue reliance on legal advice, and at the same time protect the documents through which that legal advice was communicated." As a consequence of the choice made to seek protection for the documents, the court ruled, the defendants "will not be permitted to use any of these documents at trial for any purpose," such as introducing them as evidence, using them to "refresh a witnesses recollection," or even "seek to have the jury draw any inferences from the fact that the" documents were created or delivered to any particular individual." Winton v. Board of Com'rs of Tulsa County, Ok, 188 F.R.D. 398 (N.D. Ok. 1999). [Cross-reference: Procedural: Evidence].


Federal appeals court orders further proceedings on whether male and female prisoners are "similarly situated"; male prisoners' complaints that they are subjected to a lower living standard, harsher work assignments, and other unequal treatment compared to female prisoners should not have been dismissed without detailed factual findings.

            Three male prisoners in a Louisiana correctional facility sued the Secretary of the state Department of Public Safety and Corrections, asserting that they were being discriminated against because of their gender. They alleged that living conditions provided for male prisoners were significantly harsher than those provided for female inmates. Specifically, they claimed that, unlike male inmates, female inmates confined at a state correctional facility for women do not have to labor in agricultural fields, may earn assignment to private or semi-private rooms through participation in a merit program, and are confined in air-conditioned units.

            Further, they claimed that female prisoners were provided with a standard of living above the state poverty level, in violation of a state statute, La. Rev. Stat. 15:738 (West Supp. 1999), while male inmates are limited to the state poverty level standard. The trial court rejected these claims, dismissing both due process and equal protection claims, and ruling that the defendant was entitled to qualified immunity.

            A federal appeals court noted in passing that any qualified immunity would not be a defense to the plaintiff inmates' claims for declaratory and injunctive relief, but only to the damage claims against the defendant. Accordingly, to the "extent that the district court based its dismissal of those claims on its qualified immunity analysis, it may have erred." But, because it also decided that the trial court "prematurely determined" the defendant's entitlement to qualified immunity on the plaintiffs' equal protection claim, it was "unnecessary for us to address this issue."

            The appeals court agreed that the plaintiff prisoners did not have any "due process" claim, even if their allegations were all true, since the due process clause of the Fourteenth Amendment, "does not, by itself, endow a prisoner with a protected liberty interest in the location of his confinement," and the prisoners failed to show that they had been deprived of any protected "liberty" interest. The key on the equal protection claim, however, was whether the male and female prisoners were "similarly situated," since similarly situated prisoners should, indeed, be treated equally. But the appeals court found that the trial court had not engaged in a sufficiently specific analysis of the facts in the case to be able to determine that the male and female prisoners were not similarly situated.

            In an earlier case, the court noted, Klinger v. Dept. of Corrections, 31 F.3d 727 (8th cir. 1994), a federal appeals court found, on the basis of "extensive factual development," that male and female prisoners in Nebraska's state prisons were not similarly situated, based on their average length of stay, their security levels, and the statistical incidence of violence and victimhood. In the immediate case, the trial court merely mentioned that the male and female prisons are "geographically and structurally different," but there is no clear connection between that observation and the plaintiffs' complaints.

            "We do not imply that the Constitution requires all prisons to have similar programs or to allocate resources similarly. Perhaps male prisoners on Plaintiffs' unit vandalize the buildings more often" than female prisoners, "making it economically less feasible to provide air conditioning because the necessary funds are consumed in building repairs." Or perhaps the women's prison does not have farmland, and "for that reason," women inmates cannot be assigned to do agricultural field work.

            "Nonetheless, our speculations concerning possible disparities among male and female populations cannot be substituted for adequate evidence and findings of fact." The appeals court stated that it was aware that it should give prison authorities a "high degree of deference" in the "inordinately difficult task of running prisons." If "legitimate penalogical goals can rationally be deemed to support the decision to treat male and female prisoners differently, then they are not similarly situated for Equal Protection purposes," but "that is not a conclusion that we can draw from the present record." Yates v. Stalder, #99-30744, 217 F.3d 332 (5th Cir. 2000).

Text: <http://www.law.utexas.edu/us5th/us5th.html>. [Cross- references: Defenses: Qualified Immunity].


U.S. Supreme Court strikes down federal Violence Against Women Act (VAWA) as unconstitutional. Some plaintiffs were attempting to use statute to assert claims arising out of alleged sexual assaults by law enforcement personnel.

            The federal Violence Against Women Act of 1994, 42 U.S.C. Sec. 13981 declared that "all persons within the U.S. shall have the right to be free from crimes of violence motivated by gender," and provided, in part that a person who is the victim of such an assault could bring a lawsuit for compensatory and punitive damages in federal court, as well as seeking injunctive and declaratory relief. A number of lawsuits were brought under the law, including lawsuits for sexual assaults alleged to have been engaged in by law enforcement personnel. See Williams v. Board of Cty. Com'rs of Unified Gov., 192 F.R.D. 698 (D. Kan. 2000) (suit brought under VAWA against officer and board of county commissioners alleging rape by officer; court declined to order plaintiff to answer interrogatories about her sexual history finding that answers were of marginal relevance). [Cross-reference: Procedural: Evidence].

            The stated constitutional authority for passage of the VAWA was the commerce clause and section 5 of the 14th Amendment (granting Congress the power to enforce the provisions of the 14th Amendment, including the guarantee of equal protection). The U.S. Supreme Court, upholding a decision of a federal appeals court, Brzonkala v. Virginia Polytechnic Institute and State University, #96-1814, 169 F.3d 820 (4th Cir. 1999), full text: <http://www.law.emory.edu/4circuit>, has struck down this law as an unconstitutional exercise of power by Congress.  The Court held that the Commerce Clause of the U.S. Constitution did not give Congress the authority to pass the law. Congress may not, the Court ruled, "regulate noneconomic, violent criminal conduct based solely on the conduct's aggregate effect on interstate commerce." United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).

Text: <http://www.law.vill.edu/Fed-Ct/sct.html> [Cross-reference: Supreme Court Actions].


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

Abarca v. Chevron, U.S.A., Inc., 75 F. Supp. 2d 566 (E.D. Tex. 1999).[134-135]
Brooks v. Kyler, No. 98-7626, 204 F.3d 102 (3rd Cir. 2000).[138-139]
Brooks v. Shahan, 50 F. Supp. 2d 821 (N.D. Ill. 1999).[137-138]
Brzonkala v. Virginia Polytechnic Institute and State University, #96-1814,
            169 F.3d 820 (4th Cir. 1999).[143]
Gonzalez v. Monty,
89 F. Supp. 2d 1347 (S.D. Fla. 2000).[139-140]
Green v. City of Sioux Falls, 2000 SD 33, 607 N.W. 2d 43 (S.D. 2000).[133]
Hoskins v. Oakland County Sheriff's Dept.,
            44 F. Supp. 2d 882 (E.D. Mich. 1999).[132-133]
Ledford, State Ex Rel., v. Cir Ct. for Dane County,
            No. 99-0939-W, 599 N.W.2d 45 (Wis. App. 1999).[135-136]
Mauldin v. Burnette, 89 F. Supp. 2d 1371 (M.D. Ga. 2000).[131]
McElligott v. Foley, No. 98-3451, 182 F.3d 1248 (11th Cir. 1999).[133-134]
United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).[142-143]
Welch v. Galie, #99-0229, 207 F.3d 130 (2nd Cir. 2000).[137]
White v. Black, #98-21058, 190 F.3d 366 (5th Cir. 1999).[131-132]
Williams v. Board of Cty. Com'rs of Unified Gov.,
            192 F.R.D. 698 (D. Kan. 2000).[142-143]
Winton v. Board of Com'rs of Tulsa County, Ok,
            188 F.R.D. 398 (N.D. Ok. 1999).[140-141]
Wolff v. Moore, No. 96-4080, 199 F.3d 324 (6th Cir. 1999).[136]
Yates v. Stalder, #99-30744, 217 F.3d 332 (5th Cir. 2000).[141-142]

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