April, 2001 web edition

Federal appeals court orders substitution of ACLU National Prison Project attorneys for appointed lawyer for class of HIV-positive inmates in Mississippi jails; order that previously provided that ACLU attorneys could not contact class members violated constitutional restrictions on free speech, association, and right to counsel.

            A class-action lawsuit was filed on behalf of HIV-positive inmates in Mississippi jails, seeking to address claims of failure to provide adequate medical care, segregation in inferior housing and denial of various privileges and programs solely on the basis of their medical status. An attorney was court-appointed to represent the class, and a consent decree settlement was entered into requiring appropriate treatment in "broad terms," but not addressing a number of issues, including integration into programs and privileges available to non-HIV positive prisoners.

            A number of members of the class protested the appointed attorneys' alleged inaction on several of their complaints, "the most serious and meritorious of which related to the new HIV therapies" which were proving "highly successful," but "which were unavailable to inmates." A number of class members contacted the ACLU National Prison Project for assistance and it agreed to represent these individual class members. They eventually moved for substitution of counsel for the class, submitting a petition with the signatures of 167 class members, 100% of the HIV-positive inmates housed in one jail facility. The ACLU attorneys also prepared a motion for a preliminary injunction claiming that medical care for the prisoners was so deficient as to endanger their lives, and the trial court granted that injunction, finding "deliberate indifference" to serious medical needs. The motion for that injunction was "joined in" by the appointed lawyer, but he "did not contribute to its preparation" the appeals court stated.

            The trial court denied the motion for substitution of counsel and barred the ACLU lawyers from contacting class members regarding anything within the appointed attorneys "jurisdiction," i.e., "anything relating to the treatment or prison conditions of HIV-positive inmates." It also denied a motion allowing the ACLU lawyers to intervene in the case on behalf of individual class members they said they represented, and denied their motion for attorneys fees.

            A federal appeals court ruled that the "no-contact" order was "invalid," and not "narrowly drawn to minimize prior restraints on speech, association, and access to counsel of their choice," so that order was vacated. The appeals court also reversed the denial of the motion for substitution of counsel, since the "sentiments of the class indicate a clear preference for a known substitute," the ACLU attorneys, and secondly, the appointed attorney's "nonfeasance and the constraints upon his ability adequately to prosecute the sub-class' case urge the rare remedy of substitution."

            The appeals court also ordered reconsideration of whether the ACLU attorneys were entitled to an award of attorneys fees, as they argued, based on having succeeded in securing a preliminary injunction that requires the state department of corrections to improve the care provided to HIV-positive inmates. The trial court had denied such fees because the ACLU attorneys were never made counsel of record for the class. Gates v. Cook, #99-60609, 234 F.3d 221 (5th Cir. 2000).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross- reference: Access to Courts/Legal Info; Medical Care].

Prisoner who was awarded only $1 in nominal damages in his lawsuit over his loss of consciousness while in restraint was only entitled to $1.50 in attorneys' fees, not the $3,892.50 awarded by the trial court; cap on attorneys' fees in Prison Litigation Reform Act applies to awards of nominal damages and does not violate prisoner's rights.

            A Maine prisoner was awarded $1 in nominal damages in his lawsuit against a correctional officer, which alleged that he lost consciousness after the officer locked him in a restraint chair with his mouth covered by a towel. After this jury award, the trial court proceeded to award the plaintiff prisoner $3,892.50 in attorneys' fees, the full amount requested by the plaintiff.

            A federal appeals court ruled that an award of attorneys' fees of this size was barred by 42 U.S.C. Sec. 1997e(d)(2) of the Prison Litigation Reform Act (PLRA), which limits the amount of an attorneys' fee award in such cases (where a monetary judgment is awarded) to 150% of the money damages recovered. The appeals court therefore ruled that the proper attorneys' fee award was no larger than $1.50 and ordered the trial court to enter an award in that amount.

            The court found that a "nominal damage award" of $1.00 "is "just as much a monetary judgment as an award of $1,000,000," so that the "plain language of the statute makes the fee cap applicable to such an award." The court further reasoned that "Congress could well have reasoned that applying the fee cap to nominal damage awards would encourage both prisoners and members of the bar to weigh the likely value of claims before proceeding in court, thus reducing the overall number of prisoner suits and easing the perceived burden of prisoner litigation on the just system."

            Finally, the appeals court rejected the argument that the cap on attorneys' fees contained in the statute violated the prisoner's right to due process. The provision does not involve a "suspect classification" (since prisoners are not one), and it does not infringe on the fundamental right of access to the courts. There was a rational relationship between the cap on attorneys' fees and a number of legitimate governmental purposes, including discouraging the filing of frivolous or "low-value" lawsuits. Voivin v. Black, No. 99-2085, 225 F.3d 36 (1st Cir. 2000).

Text: <http://www.law.emory.edu/1circuit>. [Cross-references: Prison Litigation Reform Act: Attorneys' Fees].

Trial judge erred in awarding nominal damages when setting aside jury's award of $231,000 on prisoner's failure to protect claim against county jail; jury's contradictory answers on interrogatories about whether defendants' conduct caused the plaintiff's injuries required a new trial, not a nominal award of $1.

            A former inmate of a Washington state jail sued the county and a number of employees, claiming that his civil rights were violated by their failure to protect him during his incarceration. A jury awarded him $231,000 in damages, but gave two contradictory answers to special interrogatories. In one, they found that the defendants' alleged "deliberate indifference" did not cause the plaintiff's injuries, while in another, they found that the defendants' conduct proximately caused the violation of the plaintiff's civil rights.

            The trial judge, based on this contradiction between the answers set aside the jury's award, but awarded nominal damages in the amount of $1, further denying a motion for an award of attorneys' fees. A federal appeals court, noting that the jury answers "cannot be reconciled," ruled that the trial judge erred in awarding nominal damages, and remanded for a new trial. Roberson v. Chelan County, No. 98-36043, 2000 U.S. App. LEXIS 28086 (9th Cir.).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Damages: Nominal].

UPDATE: Federal appeals court upholds ruling that being able to handle inmates, including the possibility of physical confrontation, was an essential job function of a  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 suffered a non-work related injury when a horse fell on her. Her doctors 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.

            As previously reported, Hoskins v. Oakland County Sheriff's Dept., 44 F. Supp. 2d 882 (E.D. Mich. 1999), Jail & Prisoner Law Bulletin, No. 285, p. 132 (Sept. 2000), a federal trial 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. A federal appeals court upheld this ruling and rejected the argument that allowing the deputy to rely on the possible assistance of other officers in restraining inmates would be a "reasonable accommodation" under the circumstances. The ADA does not require an employer to shift essential job functions to other employees. Hoskins v. Oakland County Sheriff's Dept., No. 99-1491, 227 F.3d 719 (6th Cir. 2000).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.

Federal appeals court orders "further consideration" when trial judge's opinion granting summary judgment on a wide variety of disability discrimination and other complaints by a wheelchair-bound prisoner was so "sparse" as to fail to really provide reasons for the decision.

            A wheelchair-bound prisoner in New York filed a federal civil rights and disability discrimination lawsuit against some twenty-one prison officials or employees, claiming that excessive force was used against him, that he was denied adequate medical care, that he was denied access to drinking water for more than a week, that he was assaulted with fire extinguisher spray, that no action was taken when an inmate/porter poured bleach into and sealed the plaintiff's cell, that his bedding and clothing was removed from his cell, that he was denied outdoor recreation for six months, and that he was denied access to therapy or mental health programs despite his "documented mental illness."

            The trial court granted summary judgment on all claims, stating that it did not reach the issue of Eleventh Amendment immunity raised by the defendants but rather "relies on the alternate grounds articulated in Defendants' memorandum."

            A federal appeals court remanded for further consideration and a "complete and comprehensive decision," being "troubled both by what the decision says and by what it fails to address." First, the appeals court could not find any "alternate grounds" articulated by the defendants, "upon which the decision purports to rely in deciding the motion with respect to" the disability discrimination claims.

            Second, it was "neither clear from the opinion nor obvious to us from a review of the record on appeal why there is no triable issue of material fact with respect to at least some of the plaintiffs claims, such as those with respect to the bleach incident, the denial of out-of-cell activities for nearly six months, and perhaps an alleged assault by prison officials." The trial court's decision was "simply too sparse to serve as a basis for our review." The appeals court reserved jurisdiction to review the trial court's expanded decision when it was issued, if it still granted summary judgment. Beckford v. Portuondo, No. 00-0111, 234 F.3d 128 (2nd Cir. 2000).

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

Correctional officials did not act with deliberate indifference towards prisoner with a missing leg when they promptly arranged for him to obtain a prosthesis and offered him housing on the same floor as the mess hall (which he declined).

            A New York prisoner who was missing a leg sued state prison officials, claiming that his rights under the Americans With Disabilities Act (ADA) and the Eighth Amendment had been violated by his treatment in prison. The trial court ruled that the plaintiff had not shown that the defendants were "deliberately indifferent" to his condition, as required for an Eighth Amendment claim. When he was imprisoned, they promptly arranged for him to obtain a prosthesis, offered him housing on the same floor as the mess hall (which he declined to accept), and swiftly processed his claim for housing in an area of the facility which was more handicapped accessible. As for his claim that a prison superintendent violated the Eighth Amendment by denying a general request by inmates that there be railings installed in prison showers, there was no showing that the plaintiff prisoner made his individual situation known to the superintendent in relationship to this request.

            On the ADA claim, the court ruled that the prisoner did not need to exhaust his administrative remedies before pursuing his lawsuit, but that his transfer to another facility made his request for injunctive relief moot. Parkinson v. Goord, 116 F. Supp. 2d 390 (W.D.N.Y. 2000).

Two prison guards who fired shots into prison yard disturbance, one of which struck plaintiff prisoner in the neck, were entitled to qualified immunity, even if plaintiff was being attacked by other prisoners rather than an attacker; shots were being used to quell a serious disturbance and hitting the wrong prisoner was negligence at most, not violation of civil rights.

            A California prisoner was shot in the neck during a prisoner disturbance. In his federal civil rights lawsuit, the trial court denied summary judgment to two correctional officers who fired shots during the incident, finding that there were disputed issues about their intent when they fired, as well as triable issues of fact concerning inmate shootings in California by correctional officers.

            A federal appeals court reversed, finding that both of these officers was properly entitled to qualified immunity from liability. The shots were fired as part of an emergency response undertaken to control a "large-scale disturbance in a prison yard." The use of force in such circumstances is justified when "applied in a good faith effort to maintain or restore discipline," rather than "maliciously and sadistically for the very purpose of causing harm," under the test set forth by the U.S. Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986).

            The disturbance in question was a racial incident involving an attack by groups of Hispanic inmates on Black inmates in the prison yard, and it involved between 150 and 200 prisoners and lasted thirty minutes. Attempting to quell the disturbance, guards fired twenty- one rounds, injuring four prisoners, including the plaintiff, and killing a fifth. Also used were side-handled batons, pepper spray, and .37 mm launchers.

            The appeals court noted that the prisoner's own account of the incident is that he was being attacked by an inmate with a knife-like weapon when he was shot. The fact that the bullet struck him rather than his attacker, the appeals court stated, "amounts to negligence or recklessness," and according to the District Attorney's report, even the plaintiff prisoner "believed that he was not shot intentionally." Given the "lack of evidence showing that either officer acted purposely to injure" the plaintiff, and the clearly established law "that a prison guard is permitted to use deadly force 'in a good faith effort to maintain or restore discipline,'" both of the officers' actions in firing their guns in the plaintiff's vicinity "were neither malicious nor sadistic." Jeffers v. Gomez, No. 99-15867, 240 F.3d 845 (9th Cir. 2001).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross-reference: Defenses: Qualified Immunity].

UPDATE: Prison officials adequately showed that there were legitimate security concerns about a prisoner's attempt to form an inmate "legal defense center"; no injunction requiring permitting the group on First Amendment grounds was justified.

            A federal appeals court, as previously reported, overturned summary judgment on a New York prisoner's claim that his First Amendment right of association supported his request to form a prisoners' "legal defense center," with the stated goals of disseminating information to the public and media on prison issues, lobbying the state and federal government in support of prison issues, and providing legal assistance to selected prisoners.  The court found that the plaintiff prisoner had stated "credible arguments" why his group should be recognized despite correctional officials' security concerns and ordered a detailed examination of the factors involved. Nicholas v. Miller, #98-2768, 189 F.3d 191 (2nd Cir. 1999), reported in Jail & Prisoner Law Bulletin, No. 283, p. 102 (July 2000). Full Text: <http://www.tourolaw.edu/2ndCircuit>.

            On remand, the trial court held that the prisoner failed to satisfy the requirements for an injunction, as he had not shown a likelihood of prevailing on the merits. The court found that prison officials refusal to allow the formation of the "legal defense center" was rationally related to legitimate security concerns. Prison officials argued both that the proposed center would duplicate existing services which permit individual prisoners to contact the media and government and to "research the law and file suits with the assistance of the law library staff," and that the center would pose a significant security risk.

            The security risk claimed was that "particularly belligerent prisoners may use the Center as a way to incite violence, anti-authoritarian behavior, or extortion." The court noted that there was testimony in the record about the "peril of approving any gatherings" of inmates "called together by an antagonistic organization." The court also found that the correctional officials adequately accommodated the free speech needs of the prisoners "by permitting them" individually to "write complaints addressed to the media and the government," as well as providing an inmate grievance procedure and the ability to join a group called the Inmate Legal Association, an existing and approved prisoner organization. Nicholas v. Miller, 109 F. Supp. 2d 152 (S.D.N.Y. 2000). [Cross-reference: Access to Courts/Legal Info].

Trial judge erred in dismissing, as frivolous, prisoner's claim that prison nurse retaliated against him for complaining about medical treatment by filing false disciplinary charges against him; even if prisoner's factual assertions were "unlikely," this did not make them "clearly baseless or wholly incredible" as required for factual frivolousness.

            An Illinois prisoner claimed that a prison nurse filed false disciplinary reports and injury reports against him in retaliation for his filing a grievance against her and complaining about her to other medical staff. His complaint was that she allegedly denied him his tuberculosis medication.

            The trial court dismissed this claim as frivolous, noting that there was evidence from other prison employees that the plaintiff prisoner was a "major troublemaker capable of threats and (even worse) dangerous actions," and that a disciplinary finding that he had struck the nurse and then burned her hand with a cigarette was supported both by the testimony of a correctional officer who witnessed the incident and a polygraph examination that found that the prisoner had answered "deceptively."

            A federal appeals court ruled that the trial judge erred in dismissing the lawsuit as frivolous. A frivolous claim is one that "lacks an arguable basis either in law or in fact," and a finding of factual frivolousness is appropriate when the facts alleged "rise to the level of the irrational or the wholly incredible." The appeals court found that the trial judge erred in dismissing the prisoner's claim on the basis of the "supposed unlikeliness of the allegations." While the trial judge's assessment of the credibility of the prisoner's claims "may prove to be correct," the trial court was resolving a genuine issue of fact--whether the inmate did or did not injure the nurse. Further, the prisoner's claims of retaliation, whether true or not, were not "clearly baseless" or "fanciful, fantastic, delusional, irrational, or wholly incredible." Johnson v. Stovall, No. 98-2998, 233 F.3d 486 (7th Cir. 2000).

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

Use of interest earned on deposited inmate wages to benefit the entire prison population, rather than crediting it to individual inmate accounts did not violate Virginia prisoners' property rights or constitute an unconstitutional "taking" of their money.

             A federal appeals court held that prison officials' expenditure of interest earned on deposited inmate wages to benefit the entire prison population, rather than crediting it to individual prisoner accounts did not violate the "takings" clause of the Fifth Amendment. This clause prohibits the taking of private property for a public purpose without just compensation from government. The court based its ruling on the fact that the right of Virginia prisoners to any wages at all for their prison work was based on a state statute rather than on the common law of property.

            Under the state statute, prisoners have only limited rights to their wages, the court reasoned. They are currently credited with pay for their prison work assignments at the rate of $0.90 per hour, but they are not paid in cash. Part of their wages goes into a "hold" account,  which is kept until the prisoner is released, so that they will have some funds when freed, while the rest is put into a "spend" fund which may be used for prison commissary purchasers, or, with official approval, sent outside the prison to designated individuals to make purchases.

            All such prisoner accounts are pooled, and the state statute provides that interest on the funds earned may be used by the director of the state department of corrections "for the benefit of the prisoners under his care." The court found nothing constitutionally wrong with such a provision. Washlefske v. Winston, #99-7321, 234 F.3d 179 (4th Cir. 2000).

Illinois prisoner had no vested right to continue to possess any particular quantity of personal property in his cell; court upholds prison rule restricting inmate property to what would fit in a storage box of a particular size.

            Officials at an Illinois prison informed prisoners that the amount of personal property they could keep would now be limited to what could be stored in a box of a designated size. While certain items were exempt, any excess property not so exempted would either have to be shipped out at the prisoner's expense or picked up by a visitor. The only other alternative was that the property would be thrown out.

            An intermediate Illinois appeals court rejected a prisoner's challenge to this rule. It held that prisoners have no due process right and no other right to the possession of any personal property that is not essential to fulfilling basic needs. The court ruled that statements in an orientation manual given to the prisoner earlier, which had included a list of the type and quantity of personal items which inmates in the facility could possess did not give the prisoner any kind of vested right to continue to possess those items in their cells. Prison officials were free to alter the rules, and the court also rejected the argument that this somehow constituted unconstitutional enhanced "punishment." Ashley v. Snyder, #4-99-0712, 739 N.E.2d 897 (Ill. App. 2000).

Text: <www.state.il.us/court>.

Forced administration of antipsychotic medication to paranoid schizophrenic prisoner on 22 occasions without hearings did not violate his rights when this was done in emergency situations where his behavior posed an immediate threat to himself or others, and the decisions were based on "professional medical judgment."

            An inmate in a Maryland correctional facility claimed that the forcible administration of antipsychotic medication to him without his consent on 22 occasions violated his rights since it was done without hearings. The federal trial court ruled that this claim, even if factually true (which it did not determine) would not have violated any of the prisoner's rights. This was because the decisions to administer the medication were made "in the exercise of professional medical judgment," and in the context of emergency situations where the prisoner was posing a danger to himself or others.

            In the particular, the plaintiff, who had been diagnosed as a paranoid schizophrenic, did not contravert any of the evidence of his abusive, self-injurious, or violent behavior during these individual incidents, or present any professional medical evidence which would challenge the opinions of the treating physicians.

            The court also found that prison officials did not violate his rights by failing to transfer him to a maximum security facility that handled long-term forcible medication for severely mentally disabled inmates. That facility was reserved for inmates who were not responding well to treatment, and the plaintiff was usually compliant with taking his prescribed medication and usually responded well to treatment, only requiring forced medication upon occasion. Dancy v. Simms, 116 F. Supp. 2d 652 (D. Md. 2000).

UPDATE: U.S. Supreme Court to decide whether prisoner who claimed that correctional officers used excessive force against him was required to exhaust available administrative remedies before filing a federal civil rights lawsuit for damages, even if money damages could not be awarded in the administrative proceeding.

            A Pennsylvania prisoner's federal civil rights lawsuit claimed that prison guards had used excessive force against him. As previously reported, a federal appeals court ruled that the use of excessive force by correctional officers, even if alleged to have been intentional, was a "prison condition" for purposes of the PLRA, so that the exhaustion of remedies section applies. The appeals court upheld the dismissal of the lawsuit for failure to exhaust such remedies. It rejected the argument that the prisoner was not required to exhaust available administrative remedies because the administrative procedures available to him could not provide him with a money damages remedy such as the one he sought in the civil rights lawsuit. The court found that Congress in general intended the PLRA to reduce the intervention of the federal courts into the nation's prison system, and that this intent was furthered by requiring exhaustion of available administrative procedures even in cases where prisoners sought money damages but could not obtain it through those procedures.

            The U.S. Supreme Court has granted review of the case to determine whether this holding is correct. Booth v. Churner, Co., #97-7487 & 97-7488, 206 F.3d 289 (3rd Cir.), reported in Jail & Prisoner Law Bulletin, No. 287, p. 168 (Nov. 2000), full text: <http://pacer.ca3.uscourts.gov/>, cert. granted, No. 00-289, 121 S. Ct. 377 (2000). [Cross- reference: Prisoner Assault: By Officers].

Prisoner's claim for compensation for alleged violation of his religious rights was barred without a physical injury, but he could still seek both nominal and punitive damages.

            A Pennsylvania prisoner who is a member of the "Nation of Islam" religion sued for alleged violation of his First Amendment right to free exercise of his religion, based on the fact that the prison's appointed outside minister for the Nation of Islam within the prison was allegedly not a member of that religion. The complaint sought injunctive relief, as well as compensatory and punitive damages.

            The prisoner's claims for injunctive relief were rendered moot by his transfer to another facility, leaving only his damage claims remaining. A federal appeals court ruled that his claim for compensatory damages was barred by section 1997e(e) of the Prison Litigation Reform Act (PLRA), providing that "no federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The only "actual injury" he sought compensation for, the court noted, was the "mental and/or emotional injury" he claimed to have suffered, and no prior physical injury was alleged.

            The appeals court noted that the prisoner could still seek nominal damages in order to vindicate his rights, and that he could also seek punitive damages if the conduct violative of his rights was "motivated by evil motive or intent," or if it involved "reckless or callous indifference" to his rights. It held that the cited provision of the PLRA did not bar either "claims for damages brought to vindicate a constitutional right or to punish for violation of that right." Allah v. Al-Hafeez, No. 98-1385, 226 F.3d 247 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-reference: Religion].

            EDITOR'S NOTE: For decisions to the contrary, see Canell v. Lightner, #95-35161, 143 F.3d 1210 (9th Cir. 1998), full text: Full text: <www.ce9.uscourts.gov/web/newopinions.nsf/>., (a prisoner plaintiff was not barred under Sec. 1997e(e) from seeking compensatory damages for violation of his First Amendment rights) and Rowe v. Shake, #98-4207, 196 F.3d 778 (7th Cir. 1999), full text: <www.kentlaw.edu/7circuit/>, (despite Sec. 1997e(e), a "prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained.").

N.Y. prisoners could not pursue federal civil rights claim over alleged "conspiracy" of failure to protect them from assault by officers or inmates in 13 different prisons over a ten year period when the incidents were unrelated and no "conspiracy" was shown.

            A number of New York prisoners brought a federal civil rights lawsuit claiming that prison conditions in the state violated constitutional standards, based on each plaintiff's claim of an unrelated incident of assault by different correctional officer or other inmates, occurring at no less than thirteen different correctional facilities over a period of more than ten years. The prisoners also attempted to have their lawsuit consolidated with six other lawsuits they had filed in other districts in the state, also alleging failure to protect against assaults.

            The federal trial court rejected the prisoners' motion to consolidate the cases, based on their allegation of a "Reign of Terror" requiring the appointment of a "special Master" to oversee the state prison system. The court noted that the incidents alleged were unrelated and the that the prisoners failed to offer any factual basis of any "agreement, action in concert or overt conduct" by any of the defendants that would show the kind of "conspiracy" they alleged to violate inmate rights.

            The court noted that "in effect, plaintiffs seek to establish a case, although not so labeled, akin to a class action challenging State prison conditions and operational practices," but had failed to provide any facts that would justify class action certification. The court ordered the lawsuit dismissed, while leaving open the possibility that plaintiffs could attempt to reassert their individual claims relating to particular incidents. Webb v. Goord, 197 F.R.D. 98 (S.D.N.Y. 2000). [Cross-reference: Prisoner Assault: By Inmates].

Spanish-speaking inmate had no right to a "medically qualified" Spanish interpreter to communicate with medical personnel; no violation of his privacy right was caused by the use of an inmate interpreter.

            A Spanish-speaking inmate claimed that the failure to provide "medically qualified" interpreters when he sought medical treatment for back and leg pain violated his right to privacy. He was given no choice but communicating through an inmate interpreter, who therefore had access to his medical information. The court rejected this claim. The prisoner was, the court noted, "afforded the luxury" of choosing whether he wanted a "particular inmate or even a non-inmate" to interpret, and there was no claim that knowledge of his condition was later "disseminated to inappropriate persons." Further, even had the prisoner's right to privacy been violated, the defendant prison officials were entitled to qualified immunity, since there was no clearly established law entitling the prisoner to "medically- qualified" language interpreters in 1996 or 1997, when the incidents complained of occurred. Cortes v. Johnson, 114 F. Supp. 2d 182 (W.D.N.Y. 2000). [Cross-reference: Medical Care].

N.Y.C. was not liable for escaped prisoner's shooting and injuring of a man who attempted to subdue him during a bar robbery; even if city had knowledge of prisoner's violent propensities and tendency to escape, there could be no liability without a "special relationship" to the plaintiff based on prior contact or assurances of protection.

            A prisoner with a history of both escape and violent crimes escaped from a New York City correctional facility. While out, he and an accomplice attempted a robbery at a bar, during which he shot and killed the bartender, and shot and injured another man present who had attempted to subdue him. The injured man sued the city, claiming that it negligently caused or permitted the prisoner to escape in spite of its actual or constructive knowledge of the prisoner's violent propensities. The lawsuit claimed that it was foreseeable that if the prisoner escaped, he would commit the same kind of violent crime for which he was imprisoned.

            A New York trial court rejected this claim, noting that the city's duty to keep prisoners under lock and key was a duty owed to "society in general," and not to any specific person in the absence of a "special relationship" to the plaintiff. In this case, the city and its agencies had no prior contact with the plaintiff and no knowledge that the plaintiff, in particular, would be threatened or injured by the escaped prisoner. "Without a duty running directly to the injured person," the court ruled, there can be no liability "no matter how careless the City's conduct or foreseeable the harm."

            There was no claim that anyone from the city or its agencies had "made any promises" of protection to the plaintiff or that he "relied on any promises." While it was foreseeable that the escaped prisoner might commit other crimes after his escape, foreseeability of harm, in general, does not trigger" municipal liability for harm to a specific person. Kiernan v. City of New York, #QDS: 22703794, Supreme Court, N.Y. County, Judge Stallman, reported in New York Law Journal, Jan. 19, 2001.

Text: <www.nylj.com/decisions/01/01/011901b5.htm>. [Cross-reference: Escape].

Prisoner's rights were not violated by transferring him from a prison with vocational training and substance abuse programs to one which had none, despite his argument that he would have earned "good time" credits if he successfully completed the programs.

            An Indiana prisoner's federal civil rights lawsuit was based on the fact that he had been transferred from a prison which had vocational training and substance abuse programs to one which had no such programs. He asserted that the failure to provide such programs deprived him of a liberty interest in violation of his right to due process, because if he successfully completed these programs, he would earn "good time credits" under state law, entitling him to earlier release.

            A federal appeals court upheld the dismissal of this claim. It noted that, even if he had been given the opportunity these programs presented, there was nothing "inevitable" about him completing the programs and earning the "good time." His argument that he "would" have received this credit had he been left in the first prison was merely a legal conclusion, which was "devoid" of supporting factual allegations.

            Further, the court noted that there is absolutely no constitutional requirement that prisons provide educational, rehabilitative, or vocational programs to prisoners, in the absence of conditions which constitute cruel and unusual punishment under the Eighth Amendment. Zimmerman v. Tribble, #98-2163, 226 F.3d 568 (7th Cir. 2000).

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

Allah v. Al-Hafeez, No. 98-1385, 226 F.3d 247 (3rd Cir. 2000).[60]
Ashley v. Snyder, #4-99-0712, 739 N.E.2d 897 (Ill. App. 2000).[58]
Beckford v. Portuondo, No. 00-0111, 234 F.3d 128 (2nd Cir. 2000).[54]
Booth v. Churner, Co., #97-7487 & 97-7488, 206 F.3d 289 (3rd Cir.),
            cert. granted, No. 00-289, 121 S. Ct. 377 (2000).[59]
Cortes v. Johnson, 114 F. Supp. 2d 182 (W.D.N.Y. 2000).[61]
Dancy v. Simms, 116 F. Supp. 2d 652 (D. Md. 2000).[58-59]
Gates v. Cook, #99-60609, 234 F.3d 221 (5th Cir. 2000).[51-52]
Hoskins v. Oakland County Sheriff's Dept., No. 99-1491, 227 F.3d 719 (6th Cir. 2000).[53-54]
Jeffers v. Gomez, No. 99-15867, 240 F.3d 845 (9th Cir. 2001).[55-56]
Johnson v. Stovall, No. 98-2998, 233 F.3d 486 (7th Cir. 2000).[57]
Kiernan v. City of New York, #QDS: 22703794, Supreme Court, N.Y. County,
            Judge Stallman, reported in New York Law Journal, Jan. 19, 2001.[61-62]
Nicholas v. Miller, 109 F. Supp. 2d 152 (S.D.N.Y. 2000).[56]
Parkinson v. Goord, 116 F. Supp. 2d 390 (W.D.N.Y. 2000).[54-55]
Roberson v. Chelan County, No. 98-36043, 2000 U.S. App. LEXIS 28086 (9th Cir.).[53]
Voivin v. Black, No. 99-2085, 225 F.3d 36 (1st Cir. 2000).[52]
Washlefske v. Winston, #99-7321, 234 F.3d 179 (4th Cir. 2000).[57-58]
Webb v. Goord, 197 F.R.D. 98 (S.D.N.Y. 2000).[60-61]
Zimmerman v. Tribble, #98-2163, 226 F.3d 568 (7th Cir. 2000).[62-63]