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

June, 2001 web edition

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(Published as VOLUME 2001 NUMBER 294)

U.S. Supreme Court Actions
Employment Issues
False Imprisonment
Medical Care
Prison Litigation Reform Act: Attorneys' Fees
Prison Litigation Reform Act: Exhaustion of Remedies
Prisoner Assault: By Inmate
Prisoner Assault: By Officer
Prisoner Suicide
Public Protection
Work/Education Programs


U.S. Supreme Court rules that prisoners do not have a special First Amendment right to provide legal assistance to fellow inmates.

            The U.S. Supreme Court has reversed a federal appeals court ruling holding that inmates have a First Amendment right to give legal assistance to other prisoners. See Murphy v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999), reported in Jail & Prisoner Law Bulletin, No. 280, p. 51 (April 2000), full text: <http://www.ce9.uscourts.gov/opinions>. The case involved a Montana state prisoner who sent a letter to a fellow inmate containing legal advice. The letter was intercepted and the inmate who sent it was sanctioned for violating prison rules prohibiting insolence and interfering with due process hearings. The appeals court had ruled that a First Amendment right to provide legal advice to other prisoners should be taken into account when applying the standard in Turner v. Safley, 482 U.S. 78 (1987) that a prison regulation impinging on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests.

            In a unanimous decision, the U.S. Supreme Court stated that there is no such "special First Amendment right" to provide legal assistance to fellow prisoners that enhances any protections otherwise available under Turner. Prisoners' constitutional rights are "more limited in scope" than the rights held by individuals in society at large and the Court has "generally deferred" to prison officials' judgment in upholding regulations which limit prisoners' First Amendment rights when they are inconsistent with the corrections system's "legitimate penological objectives."

            Turner, the Court stated, reflects this "deferential standard" for reviewing prisoners' claims, and does not permit an increase in the constitutional protection provided whenever a prisoner's communication includes legal advice. Additional legal protection for such advice, the Court reasoned, would "undermine" prison officials' ability to address the "complex and intractable" problems of prison administration. The Court also noted that the legal advice could be an excuse for making "clearly inappropriate comments" which might circulate among prisoners despite prison measures to screen individual inmates or officers from the comments.

            On remand, the Court found, the plaintiff, in order to prevail on his claim that the regulations in question are unreasonable, must overcome a presumption that the prison officials acted within their "broad discretion." Shaw v. Murphy, No. 99-1613, 121 S. Ct. 1475 (2001).

Text: <www.findlaw.com/casecode/supreme.html>. [Cross-reference: Access to Courts/Legal Info; First Amendment].


Incident in which a white female correctional officer was not disciplined for allegedly kissing an inmate did not show that firing an African-American male officer for allegedly having sex several times with a female prisoner was a "pretext" for racial discrimination.

            An African-American prison guard in a Colorado correctional facility had participated in a federal lawsuit alleging systemic racial discrimination by the Department of Corrections, which resulted in a settlement requiring the department to compensate the plaintiffs and to make certain institutional reforms. Months later, he was fired, based on allegations that he had twice had sexual relations with a female prisoner, once in an office in the facility and a second time in the law library. As a result of an investigation into the incident, criminal sexual assault charges were filed against him, but they were later dropped.

            He filed a lawsuit claiming that his termination on the sexual misconduct charges was a "pretext" for racial discrimination. He asserted that this was demonstrated by the way in which the investigation was conducted, arguing that investigators failed to speak to him to get his version of events, that the inmate's description of his genitalia was inaccurate, and that investigators did not inform the facility's superintendent that the first polygraph examination conducted with the female inmate indicated that she was not being truthful. (A second polygraph examination resulted in a conclusion that the inmate was truthful in answering questions by the examiner).

            He further argued that he knew of at least one instance in which a white female employee who was charged with having an inappropriate relationship with an inmate was not terminated or "severely disciplined."

            A federal appeals court upheld summary judgment for the defendant Department of Corrections. The court found that, rather than showing a pretext for racial discrimination, the record showed that the defendant "reached an independent conclusion that there was sufficient evidence to warrant his termination based on the witness statements," the second polygraph examination, and the results of serology and DNA tests conducted on fluids found on carpet swatches taken from the law library where the inmate claimed the second sexual incident took place.

            Further, "the white female employee who was not discharged was accused of kissing an inmate, and that does not seem of comparable seriousness to multiple acts of sexual intercourse between a prison employee and an inmate." There was evidence that two other white female employees were investigated for allegedly having a physical relationship with a prisoner--but one was terminated and the second resigned her position before disciplinary proceedings began. Based on this, the plaintiff failed to show that the reasons for his firing were pretextual. English v. Colorado Dept. of Corrections, No. 99-1452, 2001 U.S. App. LEXIS 7645 (10th Cir.).

Text: <www.kscourts.org/ca10/>. [Cross-references: Racial Discrimination; Sexual Assault].

Warden was entitled to qualified immunity for using race as a criteria to deny a white correctional officer promotion to one of three lieutenant positions; appeals court rules that it was not clearly established in 1992 that this could violate the plaintiff's rights.

            A white correctional officer at an Illinois prison filed a race discrimination lawsuit against the warden, claiming that he had been denied one of three positions as a lieutenant because he was not African-American. The warden hired two African-Americans and one white candidate for the three positions. The prisoner population at the facility was 46% African-American at the time, but only 3.6% of the security staff was African-American.

            Upholding summary judgment on the basis of qualified immunity for the defendant warden, a federal appeals court held that, even assuming that the plaintiff had been rejected on the basis of his race, it was not clearly established in 1992, the time of the hiring, that this action would violate the plaintiff's equal protection rights. There may have been "operational reasons for using race as one factor in hiring lieutenants" at the time, the court stated, given the high African-American inmate population and the low number of African-American staff members, since "discipline was critically important for the security and safety of the prison."

            The appeals court also pointed to its own decision in Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996), upholding a policy of considering race when promoting lieutenants in a minimum security boot camp for nonviolent male offenders. Elwell v. Dobucki, No. 98-1920, 224 F.3d 638 (7th Cir. 2000).

Text: <www.kentlaw.edu/7circuit/>. [Cross-reference: Race Discrimination].


NY officials reach $3.25 million settlement in lawsuit over mistaken two-year imprisonment of mentally ill homeless man extradited to the state after being misidentified as a fugitive drug dealer.

            New York state correctional officials paid $3.25 million and provided an apology for the mistaken two-year incarceration of a mentally ill homeless man, to settle a lawsuit brought on his behalf by his mother, serving as his guardian. The man, who had no prior criminal record and suffers from schizophrenia, was arrested in Los Angeles and extradited to New York when he was misidentified as a fugitive drug dealer from New York who has the same last name and birthdate, but a different first name.

            While he repeatedly asserted that he was not the man sought, and that his first name was not Robert, correctional officials and employees never compared his fingerprints and photographs to that of the fugitive sought, and believed that his claims that he was the wrong man were simply a sign of his mental illness. Correctional officials indicated that improvements in identification procedures for incoming prisoners have since been made. No disciplinary actions were taken against any of the correctional officers, counselors, and prison psychiatrists who were involved in the prisoner's case in two New York state prisons. Sanders v. N.Y. Depart. of Corrections, No. 97 Civ. 7112 (DAB), U.S. Dist. Ct. (S.D.N.Y. April 12, 2001), reported in The New York Times, National Edition, p. A14 (April 13, 2001).


Asthmatic prisoner who received medication on 899 occasions during 119 days was not subjected to inadequate medical treatment; jail's policy of securing his asthma inhaler and providing it to him upon request, was not medically unreasonable.

            A former inmate of an Illinois county jail claimed that the jail's medical director had been deliberately indifferent to his serious medical need for an asthma inhaler. The inhaler was taken away from him as a result of a jail policy requiring that all drugs, including over-the- counter medication, must be secured and accessible only to designated staff. Medications also are to be administered only in the presence of a medical staff member or jail officer.

            The medical director defended the policy as a security measure, arguing that inhalers are metal and can be fashioned into weapons. Additionally, the substance in inhalers can induce a "high" if the device is misused. He also argued that the jail's policy or custom of providing inhalers to prisoners within 4 minutes of a request was medically adequate.

            A federal appeals court upheld summary judgment for the defendant medical director. In doing so, it noted that the plaintiff prisoner received medication on 899 occasions during his 119 days at the jail and that the nursing staff gave him his inhaler 329 times. Additionally, after the prisoner complained that he was not getting his medication soon enough after it was requested, the medical director transferred him from the general population to the infirmary, where he was housed 15 to 20 feet from where his inhaler was stored and 5 to 10 feet from a guard. Additionally, the director prescribed other medications and an asthma nebulizer was purchased by the jail especially for the prisoner's use.

            The prisoner never required hospitalization or emergency treatments due to his asthma during his incarceration, and the appeals court concluded that the record of the medical treatment he did receive "does not even come close to meeting the deliberate indifference standard." Garvin v. Armstrong, No. 00-1263, 236 F.3d 896 (7th Cir. 2001).

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

Forcible administration of psychotropic medication was lawful when based on treating psychiatrist's opinion that the prisoner would pose a threat to himself or others without such medicine and a treatment review committee agreed after hearing the prisoner describe the psychiatrist as the "anti-Christ."

            A former inmate in an Illinois facility claimed that he was wrongfully administered psychotropic medication against his will in violation of his due process rights. A federal appeals court rejected this claim. It noted that the first forcible administration of the medication came after the prisoner, who had previously attempted to set himself on fire and experienced auditory hallucinations, refused to voluntarily take medication recommended by a treating psychiatrist.

            The psychiatrist believed that the prisoner would pose a threat of harm to himself or to others in the absence of the medication, and a treatment review committee, after hearing the inmate express his believe that the psychiatrist was "the Anti-Christ," approved the forcible administration of the medication. While the prisoner filed a written appeal to the medical director of the state Department of Corrections, no written decision in connection with the appeal was ever produced.

            The appeals court found that the initial administration of the medication was justified by the treating psychiatrist's written opinion and the treatment review committee's proceedings. The committee provided the prisoner with a fair hearing, even if they did not agree with his contentions. The court also held that there was nothing in due process which required that the prisoner be entitled to a "third level of review" from the state medical director before he was forcibly medicated, so that the defendants were entitled to qualified immunity regardless of the fact that the state director failed to issue a decision regarding the inmate's appeal, which may have been mandated by state law. Fuller v. Dillon, No. 97-4192, 236 F.3d 876 (7th Cir. 2001).

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


Prisoner awarded a total of $83,250 in lawsuit asserting excessive use of force by correctional officer was not entitled to $30,550.90 in attorneys' fees; such fees must be recalculated, based on cap on hourly fees in Prison Litigation Reform Act after federal appeals court rejects trial court's ruling that the cap violated prisoner's right to equal protection.

            A prisoner in an Ohio correctional facility prevailed in his federal civil rights lawsuit which claimed that a former correctional officer used excessive force against him and that another officer was "deliberately indifferent" to his safety during the first officer's use of excessive force. A jury awarded $8,250 in compensatory damages against both officers, $45,000 in punitive damages against the officer who used force against the plaintiff prisoner, and $30,000 in punitive damages against the other officer, for a total award of $83,250.

            The trial court then ordered the defendants to also pay $30,550.90 in attorneys' fees and expenses, and rejected a claim that the attorneys' fees should be reduced based on a cap on attorneys' fees contained in the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(d)(3). The trial court found that this cap on attorneys' fees violated the prisoner's equal protection rights when compared with successful nonprisoner civil rights litigants not subject to the cap, and that the fee restriction was not "rationally related" to the PLRA objective of reducing frivolous prisoner lawsuits. Wolff v. Moore, No. C-1-96-708, 104 F. Supp. 2d 892 (S.D. Ohio 2000).

            In an unpublished opinion, a federal appeals court has reversed, holding that the cap did not violate the plaintiff prisoner's equal protection rights. It ordered further proceedings to calculate the appropriate attorneys' fees to be awarded, as governed by the hourly fee cap set forth in the statute. Wolff v. Moore, No. 00-3959, 00-3995, 2000 U.S. App. LEXIS 28054 (6th Cir.).

Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>. [Cross-references: Attorneys' Fees; Prisoner Assault: By Officer].

            EDITOR'S NOTE: See also the prior decision in Hadix v. Johnson, Nos. 96-2387, 96- 2397, 230 F.3d 840 (6th Cir. 2000). ("Sec. 803(d)(3) of the PLRA, 42 U.S.C. Sec. 1997e(d)(3), does not violate plaintiff's rights under the implied equal protection provision of the Fifth Amendment."). Text: <http://pacer.ca6.uscourts.gov/opinions/main.php>.


Prisoner did not need to exhaust administrative remedies before pursuing federal civil rights lawsuit for particular, individualized instance of alleged retaliation by correctional officer; inmate claimed officer filed disciplinary charges against him because of his complaints to prison authorities about the officer's alleged misconduct.

            A New York prisoner claimed that a correctional officer issued him a series of unwarranted misbehavior reports in retaliation for his complaints to prison authorities about alleged misconduct by the officer.

            The trial court dismissed the prisoner's lawsuit for failure to comply with a provision of the Prison Litigation Reform Act, (PLRA), 42 U.S.C. Sec. 1997e(a), mandating the exhaustion of available administrative remedies before the filing of a federal civil rights lawsuit concerning "prison conditions." In this case, the trial court found that state regulations permitted inmates to file grievances regarding retaliatory actions and that the prisoner filed no such grievance.

            A federal appeals court vacated the trial court's decision, reinstating the prisoner's lawsuit. The appeals court stated that the "underlying principles requiring exhaustion--giving notice to administrators and allowing policy makers to change their behavior--are not served when a practice is aimed at one specific inmate rather than the prison population as a whole." Accordingly, the court found that "inmates need not exhaust their administrative remedies before bringing suit for particularized instances of retaliation." The court found that such lawsuits are not actions "with respect to prison conditions" within the meaning of the PLRA. Lawrence v. Goord, No. 99-0202, 238 F.3d 182 (2nd Cir. 2001).

Text: <www.tourolaw.edu/2ndCircuit>. [Cross-references: First Amendment; Prisoner Discipline].


Correctional officer was not deliberately indifferent to a prisoner's risk of injury from assault by another inmate when she took affirmative steps to prevent the assault, including stepping between the two prisoners and thereby exposing herself to danger.

            A Virginia prisoner claimed that a female correctional officer was deliberately indifferent to another prisoner's assault on him, and "allowed and assisted" the other prisoner to injure him. The trial court dismissed claims against this officer, noting that she testified that she was aware that the other prisoner was hostile towards the plaintiff, and ordered the plaintiff's cell door closed, following an earlier confrontation between the two, in order to prevent a second confrontation. The plaintiff himself, however, "slipped out of his cell before the door was completely closed." Far from remaining "indifferent" to the risk of harm to the plaintiff, the officer "stood between them and ordered both to return to their cells."

            Neither inmate obeyed, and the assailant shoved the officer aside and proceeded to assault the plaintiff. The officer called for backup and restrained the plaintiff. This amounted to taking "affirmative steps to protect plaintiff, including exposing herself to the same danger," and could not be a basis for liability.

            The court did allow the plaintiff prisoner, however, to proceed with limited discovery on his claim that certain supervisory personnel created or condoned official policies, procedures, and customs that allowed him to be assaulted. Delph v. Trent, 86 F. Supp. 2d 572 (E.D. Va. 2000).

Failure of jail to segregate inmates by which gang they belonged to could not be a basis for holding supervisory officials liable for assault on former gang member attacked by rival gang members; appeals court reinstates claims, however, against two correctional officers who allegedly ignored prisoner's request to be placed in protective custody.

            A former member of the "Latin Kings" street gang was taken to a county jail in Illinois after being arrested for the alleged murder of a member of a rival gang, the "Latin Disciples." Despite his requests to be placed in protective custody, he was housed in a section of the jail in which 80% of the inmates were gang members, including members of the Latin Disciples, Latin Kings, and "Vice Lords."  He was ultimately stabbed approximately 16 times with a "shank" and hit on the head with a mop wringer and a thrown television set.

            The attack lasted approximately 15 minutes and left him unconscious. Lasting injuries included disfigurement and paralysis. He sued the county sheriff and other jail supervisors for failure to implement a policy which would consider gang affiliations in making housing assignments, and also named two correctional officers as defendants for failure to place him in protective custody or otherwise prevent the assault on him.

            A federal appeals court upheld summary judgment for the sheriff and supervisory personnel. "The number of gang members housed" by the jail, the court stated, and the "high representation of certain gangs would place an unmanageable burden on prison administrators were they required to separate inmates by gangs." Additionally, if the jail were to separate inmates by gang affiliation, and "thus effectively by race, it would only be a matter of time before a lawsuit would be filed" challenging racial segregation. "Plus it would be an unmanageable practice burden to manage the jail population. What would happen if there were too many Disciples for a tier and too few Latin Kings?"

            The appeals court also, however, reinstated the claims against the two correctional officers, finding that they were not entitled to qualified immunity on the prisoner's assertions that he told them he needed to be in protective custody and they failed to take any action. One of the officers admitted that the inmates in the unit "were rowdy and seemed to be intoxicated," and the other officer stated that he knew that some inmates were drunk, and told another inmate to "control 'his guys,'" and ended a lockdown when this prisoner agreed to do so. In doing this, the court commented, this officer "seems to have deliberately abdicated his responsibility and put the fate of the inmates in the hands of another inmate." It is "impossible to say as a matter of law that one who leaves such a volatile situation under the control of an inmate is not deliberately indifferent to inmate health and safety." Mayoral v. Sheahan, No. 00-1034, 2001 U.S. App. LEXIS 4908 (7th Cir.).

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


Federal trial court grants a new trial in prisoner's lawsuit alleging that officer kicked him several times in the mouth, breaking his teeth, as he lay in restraints on the floor; court rules that no reasonable jury could conclude that prisoner's rights were not violated.

            A New York prisoner became involved in a struggle with a correctional officer who allegedly called him a "bitch" when taking him to a shower. At the conclusion of the struggle, the prisoner said he got down on his knees and voluntarily laid on the floor as instructed by the officers, and while he lay on the floor in restraints, two officers held him down, and the first officer "kicked him in the face approximately three or four times."

            Two of the kicks allegedly landed directly in his mouth, breaking his teeth and filling his mouth with blood. The officers all denied that the prisoner was kicked. Evidence in the trial of the prisoner's lawsuit against the officers included testimony by another prisoner stating that he saw the officer kick the plaintiff in the mouth, and testimony by a dentist that the injuries to the plaintiff's teeth could not have occurred as a result of a single blow or impact, such as a fall on the floor, but rather would have resulted from "forces hitting the teeth at different angles at different times."

            The jury returned a verdict in favor of the defendant officers. The trial court, acting on its own, granted a new trial. It found that the jury's verdict "was against the weight of the evidence presented at trial, and permitting the verdict to stand would result in a miscarriage of justice." The judge stated that he was "firmly convinced" that the prisoner was kicked in the teeth, and that in the circumstances of the case, that kicks to his mouth would have been an unreasonable and excessive use of force.

            The judge was also troubled by the "frankly incredible testimony of the officers that none of them saw how" the prisoner sustained his injuries, and the fact that the portions of a videotape presented did not support their testimony that the incident was triggered when the prisoner kicked at one of them. Further, one of the officers testified that he did not use a night stick or baton, but then acknowledged, when shown a frame from the videotape, that he was in fact holding a baton. "Indeed, the videotape shows him apparently swinging the baton" at the prisoner.  No reasonable jury, the court was convinced, "having examined the testimony and evidence could have concluded that plaintiff's constitutional rights were not violated." Ruffin v. Fuller, 125 F. Supp. 2d 105 (S.D.N.Y. 2000).


Constant video surveillance of suicidal prisoner's cell was not "deliberate indifference" to the risk of him taking his life; correctional officials not liable for prisoner hanging himself with his shoelaces; no liability, under Virginia state law, for suicide in the absence of a showing that prisoner was of "unsound mind" when he took his own life.

            A man on probation was arrested after he failed a random urinalysis drug test and had admitted to his probation officer that he was taking 8-10 pills a day and had attempted suicide the week before by overdosing on unspecified pills. The probation officer informed jail officials that the arrestee was "suicidal, psychotic, [and subject to] volatile withdrawal," and also might "attack people" as he withdrew from drugs. He was placed on "medical watch," which consisted of continuous video surveillance of his cell.

            He subsequently hung himself in his cell by his shoe laces. The officer responsible that day for monitoring that cell, as well as 27 others by way of small video screens, did not notice this until someone else brought it to his attention. Undisputed medical evidence showed that he had been deprived of oxygen for at least four minutes, and as a result he was hospitalized, and died seven days later. His estate sued various correctional officials and employees claiming deliberate indifference to the serious risk of suicide by the prisoner.

            A federal appeals court upheld summary judgment for the defendants on both a state- law wrongful death and a federal civil rights claim.

            Under state law in Virginia, there can be no liability for wrongful death in a suicide case unless the decedent was of "unsound mind" at the time he took his own life. While there was testimony that the decedent suffered from "bipolar disorder," the court found that this was insufficient to create a jury question regarding the decedent's competency or sanity, because the doctor expressed no opinion about his mental condition at the time he took his own life, but only at the time of his examination, three months prior to the incident. Secondly, the same doctor also stated that "his judgment was considered fair," and that, even with the bipolar disorder, the decedent might have been able to work and "carry on ordinary life activities."

            On the federal civil rights claim, the court declined to find that placing the prisoner on "medical watch" with constant video surveillance of his cell was "deliberate indifference" to the risk of suicide. At most, the failure to take "additional precautions," such as putting the prisoner in a paper gown, etc., "was negligent, and not deliberately indifferent, because by placing" the prisoner on constant video surveillance, the risk was not "disregarded."  Brown v. Harris, No. 00-1127, 240 F.3d 383 (4th Cir. 2001).

Text: <www.law.emory.edu/4circuit>.

Having male pretrial detainees strip to their underwear as a suicide prevention measure if they refused to answer intake questions about suicidal tendencies was reasonable and did not violate their due process or privacy rights, even if done in the presence of female correctional officers.

            Male pretrial detainees in a Michigan city filed a federal civil rights lawsuit claiming that their federal and state due process rights and right to privacy was violated when they were stripped to their underwear during processing and detained in that manner as a measure designed to prevent suicide attempts. They complained in particular that, in some instances, this stripping took place in the presence of female correctional officers.

            This was done with prisoners who said they were suicidal or refused to answer intake questions as to whether they were suicidal. The court rejected the plaintiff detainees' claims, finding that the policy in question was rationally related to legitimate interests in suicide prevention. Further, even though the disrobing took place in the presence of female officers, they were not forced to expose their genitals to the female officers and the period of time in which they were confined in their underwear was of "limited duration." The prisoners were kept in their underwear because a "suicide gown" which was supposed to be issued to them was not available.

            "Given the plaintiffs' refusal to cooperate fully, a fact essentially admitted by each plaintiff in his complaint," an initial period of observation to allow detention officers a fair opportunity to determine that they were not suicidal "before allowing them to have articles of clothing which otherwise might have posed some risk of self-inflicted harm" was reasonable. Johnson v. City of Kalamazoo, 124 F. Supp. 2d 1099 (W.D. Mich. 2000). [Cross-reference: Privacy].


State of Washington was not liable for assault on woman by prisoner out in "community custody"; community corrections officer may have been negligent in investigating purported prior violations by prisoner, but not "grossly negligent" as required for liability, since he did conduct some investigation.

            A Washington prisoner was sentenced to 43 months of confinement and one year of "community custody" after he pleaded guilty to attempted rape. While in "community custody," he offered a woman a ride in his vehicle, drank beer with her, and then assaulted her when she refused his demands that she have sex with him. He struck her with his truck when she tried to leave and also hit her with a board. She managed to escape and he later pleaded guilt to second degree assault for the incident.

            She sued the state, pursuant to state law allowing the imposition of liability for gross negligence in the supervision of prisoners. She claimed that the community corrections officer in charge of this prisoner was negligent in failing to discover that the prisoner had violated his curfew when police found him in a motel room one night and had possibly violated his curfew another night, and also in failing to take action after the prisoner failed to make all of the required field contacts with him (he made only 14 out of at least 27 required field contacts in eight months of supervision).

            Upholding summary judgment for the state Department of Corrections, an intermediate Washington appeals court ruled that the officer's conduct was not "grossly negligent." While the officer "certainly" could have "more carefully" investigated the motel incident, he did do some investigation, so that his negligence was not "gross." The court also found that the missed field contacts were "irrelevant" because the plaintiff had not shown that additional field contacts would have prevented the prisoner from assaulting her. "Absent some evidence" that the prisoner "was violating his community placement conditions and that" the officer "would have discovered the violations if he had made more field contacts, the missed contacts do not help" the plaintiff. Kelley v. State of Washington, No. 25254-6-II, 17 P.3d 1189 (Wash. App. 2000).

Text: <www.courts.wa.gov/opinions/>.


Virginia prison policy mandating short hair, which had no exception for religious objections, upheld by federal court as "neutral" policy with only "incidental" impact on religious practices; court rejects claim that different hair length standards for male and female prisoners violates equal protection.

            Virginia prisons adopted a mandatory grooming policy requiring that all male inmates' hair be not more than 1" in thickness/depth, and which does not permit styles such as braids, plaits, dreadlocks, cornrows, ponytails, buns, mohawks, partially shaved heads, designs cut into the hair, and any style which could conceal contraband. With regard to female inmates, hair length cannot be longer than shoulder length, and one or two braids or ponytails are allowed, but hair must be kept out of the face and eyes, and styles such as mohawks, "tailed" haircuts, shaved or partially shaved heads, more than two braids/plaits/ponytails, dreadlocks, cornrows, designs cut into the hairs, and any style which could conceal contraband, are not permitted.

            The policy does not have an exception for inmates claiming that they cannot cut their hair for religious reasons. Prisoners with religious objections, including prisoners with Islamic, Christian, Rastafarian and Native American religious beliefs, claimed that the failure to include a religious exception violated their rights.

            The trial court rejected these claims, finding that the policy in question was implemented to help eliminate contraband, reduce gang activity, identify inmates and maintain order. Any impact on religious practices, the court found, was "incidental", and the rule adopted was "neutral and generally applicable."

            The court also rejected a claim that the policy violated equal protection because it had different standards for the hair of male and female prisoners. The court noted that the defendant correctional officials had experience and data indicating that female inmates "are not as violent as male inmates, and are not as prone to hide weapons in their hair or to escape."  DeBlasio v. Johnson, 128 F. Supp. 2d 315 (E.D. Va. 2000). [Cross-reference: Sex Discrimination].

Federal appeals court rules that Religious Freedom Restoration Act (RFRA) still applies to federal prisons; further proceedings ordered on Buddhist prisoner's request to receive pastoral visits from Methodist minister; new federal statute redefines protected "exercise of religion" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."

            A federal prisoner who believed in the Buddhist religion sued correctional officials after they denied his requests for pastoral visits from a Methodist minister. The Methodist minister had previously served as a missionary in Japan, where the prisoner was born, and made the initial offer to visit the prisoner. Federal Bureau of Prison regulations, as interpreted by the prison's warden, allowed pastoral visits only if the prisoner initiated the request and the clergyman is from the same religion as the one to which the prisoner belongs.            The lawsuit claimed violations of the First Amendment right to free exercise of religion and of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. Sec. 2000bb-1. While upholding the rejection of the prisoner's First Amendment claim, a federal appeals court held that the trial judge committed a legal error in holding that the plaintiff prisoner did not have a substantial likelihood of success on his RFRA and would not be irreparably harmed absent an injunction.

            The appeals court ruled that the RFRA still applied to the federal prisons despite having been declared unconstitutional by the U.S. Supreme Court in City of Boerne v. Flores, 521 U.S. 504 (1997), since the basis for the Court's decision was that Congress had exceeded its powers to enforce the 14th Amendment against states and local authorities. This did not have any impact on the power of Congress to apply the RFRA to federal agencies under its powers derived from Article 1 of the Constitution.

            Accordingly, while the prison's legitimate penological interest in limiting the total number of pastoral visits and preventing abuses were rationally related to the policies carried out by the warden, and therefore were not violative of the First Amendment, the stricter standard of the RFRA applied. This standard requires that governmental actions that substantially burden a religious practice be justified by a "compelling" governmental interest, and that the "least restrictive means" possible be used to further that interest.

            The court found that the prisoner's desire to study Christianity and practice Christian prayer, despite being a Buddhist, and to receive the requested pastoral visits "are protected activities" under RFRA. This was particularly true in light of a new definition of "exercise of religion" adopted in the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc. This statute amended RFRA, which previously defined "exercise of religion" as "the exercise of religion under the First Amendment" to now include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." The appeals court therefore remanded for further proceedings on the plaintiff's RFRA claim. Kikumura v. Hurley, #99-1284, 242 F.3d 950 (10th Cir. 2001).

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


Louisiana prison officials did not violate asthmatic prisoner's rights by forcing him to do ditch digging on a dusty road, when they consulted with medical personnel before compelling the prisoner to do the work.

            A Louisiana prisoner claimed that prison officials violated his rights by forcing him to do field work, including ditch digging on a dusty road, while he claimed he was unable to do because of his asthma ailment. The trial court entered summary judgment for current prison officials and denied the prisoner's request for a default judgment against former prison officials who had not filed an answer to the complaint or joined in the motion seeking summary judgment.

            A federal appeals court upheld this result. It noted that prison officials had contacted the medical staff before compelling the plaintiff prisoner to do the work, and that the medical personnel informed them that the assigned work did not violate his medical duty status. Under these circumstances, the defendants did not violate the prisoner's rights, and the "defaulting" former prison officials were entitled to the benefits of the summary judgment entered in favor of the current officials, since the court essentially found that the prisoner did not state a claim. Lewis v. Lynn, No. 00-30783, 236 F.3d 766 (5th Cir. 2001).

Text: <www.law.utexas.edu/us5th/us5th.html>.


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

Brown v. Harris, No. 00-1127, 240 F.3d 383 (4th Cir. 2001).[90-91]
DeBlasio v. Johnson, 128 F. Supp. 2d 315 (E.D. Va. 2000).[93]
Delph v. Trent, 86 F. Supp. 2d 572 (E.D. Va. 2000).[88-89]
Elwell v. Dobucki, No. 98-1920, 224 F.3d 638 (7th Cir. 2000).[84-85]
English v. Colorado Dept. of Corrections, No. 99-1452, 2001 U.S. App. LEXIS 7645 (10th Cir.).[83-84]
Fuller v. Dillon, No. 97-4192, 236 F.3d 876 (7th Cir. 2001).[86-87]
Garvin v. Armstrong, No. 00-1263, 236 F.3d 896 (7th Cir. 2001).[85-86]
Hadix v. Johnson, Nos. 96-2387, 96-2397, 230 F.3d 840 (6th Cir. 2000).[87]
Johnson v. City of Kalamazoo, 124 F. Supp. 2d 1099 (W.D. Mich. 2000).[91-92]
Kelley v. State of Washington, No. 25254-6-II, 17 P.3d 1189 (Wash. App. 2000).[92]
Kikumura v. Hurley, #99-1284, 242 F.3d 950 (10th Cir. 2001).[93-94]
Lawrence v. Goord, No. 99-0202, 238 F.3d 182 (2nd Cir. 2001).[88]
Lewis v. Lynn, No. 00-30783, 236 F.3d 766 (5th Cir. 2001).[94-95]
Mayoral v. Sheahan, No. 00-1034, 2001 U.S. App. LEXIS 4908 (7th Cir.).[89]
Ruffin v. Fuller, 125 F. Supp. 2d 105 (S.D.N.Y. 2000).[90]
Sanders v. N.Y. Depart. of Corrections, No. 97 Civ. 7112 (DAB),
                U.S. Dist. Ct. (S.D.N.Y. April 12, 2001), reported in The New
                York Times,
National Edition, p. A14 (April 13, 2001).[85]
Shaw v. Murphy,
No. 99-1613, 121 S. Ct. 1475 (2001).[83]
Wolff v. Moore, No. 00-3959, 00-3995, 2000 U.S. App. LEXIS 28054 (6th Cir.).[87]

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