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A Civil Liability Law Publication
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(Published as VOLUME 2001 NUMBER 289)
Federal Tort Claims Act
Jail & Prison Conditions
Prison Litigation Reform Act
Prisoner Assault: By Officers
Index of Cases Cited
Claim that prison doctor changed the medication of a prisoner suffering from AIDS solely on the basis of cost, causing serious side effects and shortened life expectancy, was sufficient to state a claim for deliberate indifference to serious medical needs.
A Virginia prisoner suffering from AIDS claimed that a doctor at the prison ordered a change in his medication without notifying him, and that this change caused a variety of side effect, including rashes, drowsiness, discolored urine, numbness in his feet, loss of appetite and mental stress. In a federal civil rights lawsuit filed against the doctor, the prisoner claimed that the action was "cost-motivated and criminally negligent," causing him serious injury because his "life expectancy has been greatly shortened."
The trial court denied the doctor's motion to dismiss. The court agreed that a mere disagreement over the appropriate course of treatment would not be enough to show an Eighth Amendment violation, nor would failure to provide a prescribed medication on a timely basis, standing alone. But in this case, the prisoner claimed that the change in medication had no medical purpose at all, caused serious side effects, and shortened his life. His claim that the defendant was motivated "solely by cost considerations and not by an informed medical decision" was sufficient to state a claim for deliberate indifference to his serious medical needs. Taylor v. Barnett, 105 F. Supp. 2d 483 (E.D.Va. 2000). [Cross-reference: Medical Care].
Texas appeals court overturns $153,670 jury award to warden fired after he reported to his employer that his supervisor had allegedly taken his girlfriend on trips for state business and kept another girlfriend on the payroll earlier solely on the basis of the relationship; statements, which were based solely on rumor and innuendo, did not constitute good faith reports of "violations of law" as required to support an award of damages under the state's Whistleblower Act.
A warden at a Texas prison was fired. He claimed that his termination was based on him reporting, in good faith, alleged "violations of law" by his immediate supervisor, a regional director of the state department of Criminal Justice. Prior to his termination, he had met with the Chairman of the state Board of Criminal Justice and told him that his supervisor "had a girlfriend and that the two traveled together on state business," and "roomed next to one another." When asked whether he had any evidence to back up the allegation, he said that he did not, but that every warden in the system knew of the relationship and that the Board "could check with any of them." He also claimed that, when his supervisor had been a warden, he had kept a girl on the payroll "when her time ran out because she was his girlfriend." Asked how he knew this, he said "word of mouth."
He sued his employer after his termination, arguing that it violated the state Whistleblower Act, prohibiting retaliation against public employees who report violations of law in good faith. He argued that "falsification of payroll records and/or misappropriation of travel funds" were the possible "violations of law" involved. A jury returned a verdict in favor of the plaintiff, awarding $153,670 in damages, as well as court costs, attorney's fees and pre- and post-judgment interest.
An intermediate Texas appeals court overturned the jury's award. It found that the plaintiff's reliance solely on rumor and innuendo in reporting alleged illegal conduct by his former supervisor was insufficient to constitute a factual basis on which it could be concluded that a reasonable employee with the same level of experience and training would have made such a report. "In sum, an employee does not act in good faith when his report of a 'violation of law' is based entirely on unsubstantiated rumor and innuendo." Texas Department of Criminal Justice v. Terrell, No. 12-99-00054-CV, 18 S.W.3d 272 (Tex. App. 2000).
Maryland correctional officer was properly terminated for allowing three female inmates to live at his house after their release from custody
A correctional officer employed by a county correctional facility was proven to have allowed three female inmates to come to live at his house after their release from custody. He was terminated for breaking a rule prohibiting establishing a personal relationship with an inmate "beyond what is required to perform official duties."
Upholding the termination, a Maryland appeals court found that the rule was valid and could properly be applied in this situation even if the officer's actions were "motivated by good intentions," such relationships could undermine the public's confidence or trust in the department of corrections. Stover v. Prince George's Co., #775-1999, 132 Md. App. 373, 752 A.2d 686 (2000).
Prisoners who had allegedly been mistakenly released early from Maryland prisons were properly rearrested as escapees; state officials were entitled to qualified immunity for obtaining escape arrest warrants for former prisoners and having them taken back into custody.
After a Maryland appeals court issued a decision, Beshears v. Wickes, 349 Md. 1, 706 A.2d 608 (1998), concerning the interpretation of the state statute governing the calculation of criminal sentence diminution credits, state officials decided that their understanding of the rule in the case should be applied to recalculate the sentences of some prisoners who had been released prior to the decision. Based on this, arrest warrants for three previously released prisoners were obtained and they were arrested as escapees.
The prisoners filed a federal civil rights lawsuit against the state officials, arguing that the arrests violated their rights under the Fourth Amendment prohibition on unreasonable search and seizures and their right to due process of law before being deprived of liberty. A federal appeals court, upholding the dismissal of the lawsuit, rejected these claims and also ruled that the defendant officials were entitled to qualified immunity from liability. Under Maryland state law, mistakenly released prisoners are to be treated as escapees, providing probable cause for the warrants. Further, a prisoner does not have a "liberty interest" protected under the due process clause if they have been mistakenly released.
Even if the officials were arguably mistaken, the court found, it was not unreasonable for the defendants to have believed that these actions were lawful since they reasonably believed the prisoners to have been mistakenly released. And there was no clearly established right, at the time of the issuance of the warrants, to a hearing prior to the issuance of such retake warrants. Henderson v. Simms, No. 99-1706, 223 F.3d 267 (4th Cir. 2000).
Text: <http://www.law.emory.edu/4circuit>. [Cross-references: Defenses: Qualified (Good-Faith) Immunity].
Mississippi man mistakenly kept in county jail for ten months after city charges against him were dismissed awarded $36,200 against city; county sheriff and deputy sheriff were not liable when they never received notice that city charges were resolved.
A Mississippi man was stopped by police for speeding and driving without a license, but a records check showed an outstanding warrant on a simple assault charge, so he was taken to a city jail. County officials then requested a detainer from the city since the man had never been sentenced on an earlier burglary conviction.
When he was taken to court, he was fined less than $60 for speeding, and the pending assault charge was dismissed. Returned to the jail on the county's detainer, he was then booked as a city inmate in a county detention facility housing the city's overflow prisoners. The county never received notice of the dropping of the assault charge, and would have released him had they known. Instead, he was held in custody for ten months, and only released after a cellmate wrote a letter on behalf of him, since he was illiterate.
He sued the city for essentially having lost him in the county facility for ten months. While his lawsuit asked for $4 million in damages, a jury awarded $36,200. The county sheriff and a deputy named as defendants were found not liable, as they never received notice of the resolution of the assault charge on which the city was holding him. Jones v. City of Jackson, 396-CV-510-LN, U.S. 5 (S.D. Miss.), reported in The National Law Journal, p. A14 (Oct. 30, 2000).
EDITOR'S NOTE: In another recent case, a prisoner in Ohio who wound up spending an extra 13 months in a state penitentiary after his 3-1/2 sentence expired reached a $25,000 settlement from the state. Carter v. Ohio, settlement reported in The Cleveland, Oh Plain Dealer, August 31, 2000. This was reported the largest the state had ever paid in such a case, with the prior record being an award of $16,106 paid to a prisoner named Corder in Hamilton County, Ohio in 1994 for 149 days of illegal confinement.
FEDERAL TORT CLAIMS ACT
Federal prisoner could not sue doctors employed by the Public Health Service for violation of his constitutional rights; a lawsuit against the U.S. government under the Federal Tort Claims Act was his exclusive remedy for any problems arising from his medical treatment by them.
A prisoner in a federal correctional facility brought a federal civil rights lawsuit against two prison doctors for allegedly deliberately and unnecessarily delay his dental and medical treatment, causing him unnecessary pain. He brought the lawsuit directly under the Eighth Amendment of the U.S. Constitution, as he argued was allowable under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The defendants argued that, pursuant to the Public Health Service Act, 42 U.S.C. Sec. 233, they were immune from such a civil rights lawsuit for actions committed within the scope of their employment as Public Health Officers. This statute provides that an action against the U.S. government under the Federal Tort Claims Act (FTCA) is the exclusive remedy "for personal injury, including death, resulting from the performance of medical, surgical, dental or related functions," by "any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment." The trial court agreed that a Bivens lawsuit cannot be pursued when "Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Seminario Navarrete v. Vanyur, 110 F. Supp. 2d 605 (N.D. Ohio 2000). [Cross-reference: Medical Care].
JAIL & PRISON CONDITIONS: GENERAL
The fact that an INS detainee awaiting deportation had fewer privileges while held at a parish jail than he would have had if kept in a federal detention center did not violate his right to equal protection; court orders further proceedings on detainee's claims concerning inadequate food, exercise and sanitation in the jail.
A detainee of the federal Immigration and Naturalization Service (INS) awaiting deportation from the U.S. was being held at a Louisiana parish jail. They filed a federal civil rights lawsuit against the sheriff and warden challenging the constitutionality of the conditions in which he was confined.
In two recent decisions in the case, the trial judge held that the mere fact that the detainees held at the parish jail had fewer privileges than detainees held at a federal detention center, standing alone, did not violate equal protection of the law, and that the housing of the INS detainee with convicted prisoners did not violate his right to due process of law. The prisoner had no constitutional right to be held in any particular institution.
At the same time, the court ruled that there were triable issues of fact as to whether correctional officers acted reasonably in removing mattresses from the cell the plaintiff shared with other INS detainees after the detainees attempted to block the ventilation system in order to shield themselves from the cold. He claimed that this forced him to sleep on the bare floor, in cold and wet conditions. The court also ordered further proceedings on the detainee's claims concerning inadequate meals, exercise, clothing, overcrowding, lack of access to telephones, excessive phone rates, inadequate sanitation and unsafe conditions created by the lack of adequate exits. Oladipupo v. Austin, 104 F. Supp. 2d 643 (W.D. La. 2000) and Oladipupo v. Austin, 104 F. Supp. 2d 654 (W.D. La. 2000).
Federal trial court denies summary judgment to Wisconsin prison officials in lawsuit over regulation under which a picture of the Sistine Chapel and various other magazines and correspondence was withheld from prisoners because of depicted nudity or discussion of sex.
Wisconsin state prisoners filed a federal civil rights lawsuit challenging a correctional department regulation under which they were denied the right to receive or possess correspondence or magazines that were defined as "in whole or in part pornography." Their lawsuit alleged that materials that had been banned under the regulation's prohibition included a letter from an inmate to his fiance that had a single reference to sex, an entire book because on page 127 it contained a reference to "the act of copulation," a magazine that had an article about the ugliness of a prostitute's life, and an issue of Cosmopolitan magazine because it contained an article about sex.
Other materials banned on the basis that they contained "nudity which appeals to the prurient interest in sex" included a picture of Michelangelo's Sistine Chapel, an art work by Herrera, the Sports Illustrated swimsuit issue, and issues of Vanity Fair, Rolling Stone, Maxim and various fitness and motorcycle magazines because they contained advertisements or photographs showing a portion of a buttock or breast.
Defendant correctional officials sought summary judgment, which was denied. The federal trial court found that the defendants failed to establish that the regulation was not an impermissible violation of the prisoners' rights protected by the First Amendment. The court noted that since the defendants did not disavow the use of the regulation to ban the picture of the Sistine Chapel, "logic suggests the regulation prohibits access to such great works of literature as the Bible and the writings of Walt Whitman, as well as countless others whose depictions of nudity and sexual intimacy are enlightening and inspiring rather than 'degrading and disrespectful.'" The defendants "have suggested no rational connection between so broad a ban" and their stated goals of promoting rehabilitation, increasing security, and protecting female correctional officers. The court also found that the defendants had failed to show that the regulation, as plaintiffs contended, was not so vague as to fail "to provide fair warning to prisoners" about what materials would be banned and "ascertainable standards" for department employees to use in deciding what materials to ban.
The court found that the "defendants cannot have it both ways: either they stand by their interpretations and applications of the regulation banning such materials as a depiction of the Sistine Chapel and sexually intimate love letters between spouses, in which case a trier of fact could reasonably conclude the regulation is not rationally connected by a legitimate penological interest and thus violates plaintiffs' rights protected by the First Amendment or they disavow such interpretations, in which case a trier of fact could reasonably conclude that the regulation is so vague that it fails to provide those charged with enforcing it with an 'explicit and ascertainable standard' to prevent arbitrary enforcement and thus violates plaintiffs' rights protected by the due process clause of the Fourteenth Amendment."
The trial court also noted that at least one affidavit by a female correctional officer concerning problems with certain magazines was "untrue and possibly perjurious" as she later, during a deposition, admitted to never having heard of Maxim or Vanity Fair magazines before, as well as that she had never seen a Sports Illustrated swimsuit issue or seen inmates selling or renting Penthouse, Cosmopolitan or the Victoria's Secret catalog. The court noted that a paragraph contained in this officer's affidavit appeared in "many if not most of the sworn affidavits defendants submitted" in support of their motion for summary judgment, and concluded that the "credibility" of the affidavits was therefore "in grave doubt." Aiello v. Litscher, 104 F. Supp. 2d 1068 (W.D. Wis. 2000).
MEDICAL CARE: DENTAL
Prison officials could not withhold medical treatment from a prisoner who needed a cavity filled because the prisoner refused to consent to the extraction of another tooth; such withholding, if true, violated prisoner's constitutional rights.
A New York prisoner claimed that prison officials refused to provide treatment for a cavity he had in one tooth unless he consented to the extraction of another tooth, which was also diseased but which he wished to keep. He claimed that this violated his constitutional rights under the Eighth Amendment.
The trial court granted qualified immunity to the defendant correctional officials and employees. A federal appeals court has reversed.
"Although a tooth cavity is not ordinarily deemed a serious medical condition, that is because the condition is readily treatable. Unless the cavity is treated, however, the tooth will degenerate, probably cause severe pain, and eventually require extraction and perhaps further extraordinary invasive treatment. The present record allows the inference that for nearly a year, the defendants refused treatment unless" the plaintiff "consented to an unwanted extraction, and would have continued to do so indefinitely had they not been required by court order to give treatment."
The court noted that the prisoner had the right to refuse to consent to treatment on the second tooth, for which the indicated treatment was extraction. This was not a case in which the prisoner and medical personnel disagreed about the appropriate treatment for the first tooth--the appropriate treatment for it was clearly a filling, and that treatment could not be withheld on the basis of the prisoner's refusal to consent to treatment on the second tooth. Harrison v. Barkley, No. 97-2286, 219 F.3d 132 (2nd Cir. 2000).
PRISON LITIGATION REFORM ACT: EXHAUSTION OF REMEDIES
Prisoner's failure to name the warden or correctional commissioner in his administrative grievances concerning alleged denial of prescribed treatment for his hernia did not constitute a failure to exhaust administrative remedies so as to require dismissal of his subsequent federal civil rights lawsuit against them.
A Georgia prisoner filed a federal civil rights lawsuit asserting that correctional officials denied him necessary medical treatment for his hernia by depriving him of an athletic supporter and snacks that had been prescribed by a prison physician. The lawsuit named the warden of his prison and the former Commissioner of the state Department of Corrections as two of the defendants in the lawsuit.
These two defendants were granted dismissal of the claims against them because the prisoner, while he had pursued and exhausted available administrative remedies, had not named either of the two of them in his administrative complaints. Accordingly, the trial court ruled that he failed to exhaust his administrative remedies against them as required by 42 U.S.C. Sec. 1997e(a), enacted as part of the Prison Litigation Reform Act (PLRA).
Reversing, and reinstating the claims against these two defendants, a federal appeals court ruled that the prisoners failure to specifically name them in his administrative complaints did not mean that he had failed to exhaust his available administrative remedies against them. His administrative complaints provided all the relevant information concerning his complaints which he could be expected to provide, and the exhaustion of remedies provision "does not require him to provide information he cannot reasonably obtain, nor does it require him to inform those who will pass on his grievance of the identity of the warden or prison commissioner."
The court noted that the prisoner did not allege that the two defendants were personally involved in the incidents. It was possible that there still could be a dismissal of the claims based on the lack of personal involvement in the alleged denials, unless there was some other basis for liability. But that had not been the basis of the dismissal by the trial court. "Naming the warden and commissioner in a grievance simply because they are the top officials in charge of the prison would not have advanced any of the policies underlying the exhaustion requirement." Brown v. Sikes, No. 98-08727, 212 F.3d 1205 (11th Cir. 2000).
Text: <http://www.law.emory.edu/11circuit/index.html>. [Cross-reference: Medical Care].
PRISONER ASSAULT: BY OFFICERS
Federal appeals court rules that provision of the Prison Litigation Reform Act requiring the exhaustion of administrative remedies before pursuing a federal civil rights lawsuit does not apply to a prisoner's claim that correctional officers physically assaulted him without any lawful justification.
A prisoner in a Connecticut correctional facility claimed that he was the target of a prolonged and sustained pattern of harassment and intimidation by corrections officers because of his "perceived friendship" with the state's governor. He claimed that, on at least one occasion officers placed him against a wall and beat him so badly that he lost control of his bowels, without any provocation or reason, except the sadistic intent to cause him pain. He also claimed that officers threatened to kill him if he reported the beating.
He filed a federal civil rights lawsuit against two of the officers. The trial court dismissed the lawsuit because the plaintiff prisoner failed to first exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a), enacted by the Prison Litigation Reform Act.
Reversing, a federal appeals court held that this exhaustion of remedies requirement did not apply to Eighth Amendment claims based on particular instances of assault or use of excessive force by prison employees that are brought under 42 U.S.C. Sec. 1983. The court noted that the exhaustion of remedies was required for lawsuits concerning "prison conditions," and concluded that a particular use of excessive force or an assault was not a "prison condition" as intended by the statute. Nussle v. Willette, No. 99-0387, 224 F.3d 95 (2nd Cir. 2000).
Text: <www.tourolaw.edu/2ndCircuit>. [Cross-reference: Prison Litigation Reform Act: Exhaustion of Remedies].
"Low-level" county jail employees were not liable for prisoner's suicide after he was taken off of suicide watch, since they relied on statements by a nurse and a social worker that the prisoner no longer seemed suicidal; court orders further proceedings, however, on whether county policy, which did not require consulting with a mental health professional before ending suicide watch, was inadequate.
A New Jersey man serving time in a county jail on drug charges, who had a prior history of depression and attempted suicide, was placed on suicide watch after he drank cleaning fluid, which correctional officials viewed as a new suicide attempt, despite the prisoner's claim that he had mistaken it for orange juice. The county jail placed him on suicide watch after he returned from the hospital. Under suicide watch, he was watched every 15 minutes.
About three weeks after the cleaning fluid incident, correctional employees took him off of suicide watch, based on his behavior and demeanor, which they thought was much improved. He was instead placed in administrative segregation, and one day later, his lifeless body was found hanging from a bed sheet in his cell. Attempts to revive him failed and he died.
The decedent's estate filed a lawsuit against the county and various county employees, asserting that they should be held liable for failure to prevent the suicide. The trial court ruled that various "low-level" county jail staff defendants who transferred the prisoner from suicide watch to administrative segregation could not be held liable. They did not act with "deliberate indifference" to the possibility that the prisoner would kill himself and they acted in reliance on the statements of a nursing supervisor and social worker who stated that the prisoner was no longer suicidal.
The court ordered further proceedings, however, on the question of whether the county's verbal policy governing suicide watch was adequate. The lawsuit contended that the policy should have required that county employees consult with a qualified mental health professional before removing a prisoner from suicide watch. While the nurse was consulted, she had no psychological training other than the standard courses that she had completed in nursing school and neither she nor the social worker who was also consulted considered themselves experts in psychology or psychiatry.
The court therefore denied motions by the county and the warden of the jail for summary judgment. It found a genuine issue of material fact as to whether the warden knew of "and disregarded the serious risk to inmate safety which existed from the absence of a mental health professional on staff. Cills, Estate of, v. Kaftan, 105 F. Supp. 2d 391 (D.N.J. 2000).
Washington state jury awards $15 million to family and estate of 65-year-old woman repeatedly raped and ultimately murdered by an ex-convict; lawsuit claimed that state correctional officials failed to adequately supervise him after his release and should never have placed him on "minimum management."
A 65-year-old woman in the state of Washington was repeatedly raped and ultimately murdered in her home by an ex-convict who had previously been imprisoned for attacking a couple with an ice pick. During the attack, he put her in the bathtub and put a solvent on her face and suffocated her. He was later convicted of the murder and sentenced to death. The woman's family and estate sued the state, claiming that community corrections officers inadequately supervised and monitored the ex-convict. His community supervision, the state's equivalent of probation, ended after one year, and he was then required to report to an offender "minimum management" unit. The plaintiffs in the lawsuit alleged that there was so little contact with him subsequently that state correctional officials did not even know the ex- convict's address.
The lawsuit further asserted that the ex-convict engaged in behavior that "terrorized" the neighborhood and that he bragged to children in the neighborhood about his crimes. Correctional officials argued that they had little legal ability to control the ex-convict, and could only, after his community supervision ended, seek to enforce financial obligations, such as collection of fines and restitution. The lawsuit argued, however, that the ex-convict was a violent offender who should not have been put on minimum management to begin with.
The trial judge ruled that the department of corrections had a duty to supervise the ex- convict and to control or deter his violent conduct. A jury award $15 million in damages to the plaintiffs, including $5 million to the estate of the woman's husband, who died nine months after the attack on his wife and allegedly suffered nightmares every night after the murder. The damages awarded also included $6 million to the woman's estate and $1 million apiece to each of her four adult children. An appeal is anticipated in the case, challenging the jury's finding that the lack of supervision was a proximate cause of the murder, and the trial judge's rulings preventing an attempt by the state to introduce the issue of comparative fault. Couch v. Washington State Dept. of Corrections, No. 99-2-11902-4 (Super. Ct., Pierce Co., Wash.), reported in The National Law Journal, p. A14 (Nov. 27, 2000).
EDITOR'S NOTE: The jury award reported above came just two months after another Washington state jury awarded $22.4 million against the state to the family of a female motorist killed in a collision with a stolen car driven at 90 m.p.h. through stoplights by a prisoner on supervised release for two felonies. That lawsuit also claimed that correctional officials inadequately supervised the prisoner. Joyce v. State of Washington, No. 99-2-10179-6 (Sept. 1, 2000, Super. Ct., Pierce Co. Wash.), The National Law Journal, p. A18 (October 16, 2000), reported in Jail & Prisoner Law Bulletin, No. 287, p. 172 (November 2000). The state is also appealing that award.
Florida prison's initial refusal to put death row prisoner's legally adopted religious name on his identification card together with the name under which he had been imprisoned violated his right to exercise his religion.
A prisoner on death row converted to Islam after his incarceration and adopted a religious name. He legally changed the name in court proceedings, and then sued correctional officials for violating his right to exercise his religion because they refused to recognize the legal change of name within the prison. A federal trial court directed the prison to comply with a "dual name" policy on the prisoner's identification card, placing both his original name and his new religious name on it. A federal appeals court has upheld that order. The appeals court ruled that an alleged policy of the Florida Department of Corrections which refused to follow the dual-name policy for identification cards and related services (such as bank and canteen services for which the identification card is required) violated the plaintiff prisoner's constitutional right to free exercise of religion. The trial court had rejected the argument that the addition of a "legal religious name as an alias would result in mass confusion or disruption of the inmate identification system."
The court upheld the determination by the trial court that the prison system's initial response to its order, of placing the prisoner's religious name on the reverse side of his identification card, was inadequate since it contained the notation "for notary purposes," which might be interpreted as restricting his ability to obtain other services under his legally adopted religious name. Hakim v. Hicks, No. 98-3062, 99-12050, 223 F.3d 1244 (11th Cir. 2000).
South Dakota correctional officials were entitled to sovereign immunity from liability for alleged negligent hiring, training and supervision of correctional officer who allegedly raped a female prisoner in a prison bathroom on two occasions
A female prisoner in a South Dakota correctional facility claimed that a male correctional officer, who had previously "flirted" with her, approached her in the "dishroom" of the prison, kissed her and asked her to go into the bathroom with him. When she refused to do so, he allegedly put his hand on her back and lead her into the inmate bathroom and then raped her. She further claimed that he raped her again a couple of days later, once again in the bathroom.
She filed a lawsuit against the state, the warden, and the secretary of the state Department of Corrections, claiming that they negligently supervised, trained, and hired the officer who allegedly raped her, and further negligently failed to take action to prevent him from making inappropriate advances towards her. The officer's employment was terminated after an investigation by the department, and he was not made a party to the lawsuit.
Upholding summary judgment for the defendants, the Supreme Court of South Dakota ruled that sovereign immunity under state law barred the plaintiff's claims, since the challenged actions concerning the hiring, supervising, training, etc. of the officer were discretionary, requiring the exercise of judgment, rather than ministerial (envisioning direct adherence to a governing rule or standard with a compulsory result, to be "performed in a prescribed manner without the exercise of judgment"). Casazza v. State, No. 21217, 616 N.W.2d 872 (S.D. 2000).
Text: <http://www.sdbar.org/opinions/default.htm>. [Cross- references: Defenses: Sovereign Immunity; Negligent Hiring, Retention, Supervision, & Training].
Prisoner could pursue federal civil rights lawsuit over loss of his prison job which allegedly resulted from officers pursuing false disciplinary charges against him after he filed a complaint against an officer; despite the lack of a property or liberty interest in his job assignment, prisoner's equal protection (racial discrimination) and retaliation claims were not barred.
An Illinois prisoner was engaged in his work assignment cleaning the building that houses the prison school when a correctional officer allegedly made a series of sexually suggestive and racially derogatory comments to him regarding certain female teachers at the prison school. The prisoner filed a grievance against the officer. A series of events followed in which the prisoner claimed he was "set up" and falsely accused of various disciplinary infractions, which resulted, among other things, in his loss of his prison job. He claimed that this was retaliatory on the part of the officer he complained about and other officers who took action against him in support of that officer.
The trial court dismissed the lawsuit for failure to state a claim, noting that a prior case held that neither Illinois state law nor the due process clause gives prisoners a liberty or property interest in their prison jobs. See, Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991).
A federal appeals court, while still upholding the rule in Wallace, reinstated the lawsuit, finding that the fact that the prisoner had no liberty or property interest in his former prison job did not foreclose his equal protection (race discrimination) and retaliation claims arising from the loss of that job. The court further grappled with the issue of whether the claims were barred under Edwards v. Balisok, 520 U.S. 641 (1997), precluding damage actions challenging disciplinary sanctions that have not been overturned through some other means.
"Today, we join the Second Circuit [in Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999)], and hold that a prisoner may bring a Sec. 1983 lawsuit challenging the conditions of [his] confinement where [he] is unable to challenge the conditions through a petition for federal habeas corpus," the court stated. Habeas corpus relief could not restore his prison job, the court noted. "To summarize, we hold today that the unavailability of federal habeas relief does not preclude a prisoner from bringing a Sec. 1983 action to challenge a condition of his confinement that results from a prison disciplinary action." In doing this, the court explicitly overruled two of its prior cases, Anderson v. County of Montgomery, 111 F.3d 494 (7th Cir. 1997) and Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997) (precluding prisoners from pursuing Sec. 1983 actions when federal habeas was not available or when the prisoner had not first availed himself of that option) to the extent that they are contradictory.
The court found that the plaintiff prisoner stated claims for both racial discrimination and unlawful retaliation, but upheld the dismissal of an excessive force claim by the prisoner against a correctional officer who allegedly pushed him, since the "shove was a single and isolated act, unaccompanied by further use of force," and the bruising allegedly suffered "does not appear to have been particularly serious." DeWalt v. Carter, No. 98-2415, 224 F.3d 607 (7th Cir. 2000).
Text: <http://www.kentlaw.edu/7circuit/>. [Cross-references: First Amendment; Prisoner Discipline; Racial Discrimination].
INDEX OF CASES CITED
Page numbers in [brackets] refer to the print edition.
Aiello v. Litscher, 104 F. Supp. 2d 1068 (W.D. Wis. 2000).[7-8]
Brown v. Sikes, No. 98-08727, 212 F.3d 1205 (11th Cir. 2000).[9-10]
Carter v. Ohio, settlement reported in The Cleveland, Oh Plain Dealer, August 31, 2000.[5-6]
Casazza v. State, No. 21217, 616 N.W.2d 872 (S.D. 2000).[13-14]
Cills, Estate of, v. Kaftan, 105 F. Supp. 2d 391 (D.N.J. 2000).[10-11]
Couch v. Washington State Dept. of Corrections, No. 99-2-11902-4
(Super. Ct., Pierce Co., Wash.), reported in The National Law
Journal, p. A14 (Nov. 27, 2000).[11-12]
DeWalt v. Carter, No. 98-2415, 224 F.3d 607 (7th Cir. 2000).[14-15]
Hakim v. Hicks, No. 98-3062, 99-12050, 223 F.3d 1244 (11th Cir. 2000).[12-13]
Harrison v. Barkley, No. 97-2286, 219 F.3d 132 (2nd Cir. 2000).[8-9]
Henderson v. Simms, No. 99-1706, 223 F.3d 267 (4th Cir. 2000).[4-5]
Jones v. City of Jackson, 396-CV-510-LN, U.S. 5 (S.D. Miss.),
reported in The National Law Journal, p. A14 (Oct. 30, 2000).
Joyce v. State of Washington, No. 99-2-10179-6 (Sept. 1, 2000, Super. Ct., Pierce Co. Wash.),
The National Law Journal, p. A18 (October 16, 2000).
Nussle v. Willette, No. 99-0387, 224 F.3d 95 (2nd Cir. 2000).
Oladipupo v. Austin, 104 F. Supp. 2d 643 (W.D. La. 2000).[6-7]
Oladipupo v. Austin, 104 F. Supp. 2d 654 (W.D. La. 2000).[6-7]
Seminario Navarrete v. Vanyur, 110 F. Supp. 2d 605 (N.D. Ohio 2000).
Stover v. Prince George's Co., #775-1999, 132 Md. App. 373, 752 A.2d 686 (2000).
Taylor v. Barnett, 105 F. Supp. 2d 483 (E.D.Va. 2000).
Texas Department of Criminal Justice v. Terrell, No. 12-99-00054-CV,
8 S.W.3d 272 (Tex. App. 2000).[3-4]
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