September, 2001 web edition

Corrections officers subject to discipline for "inattentiveness" during training on "gays and lesbians" in the workplace were improperly punished for silently reading bibles, when other officers, inattentive or reading non-religious materials, were not similarly punished.

            During a training program on "Gays and Lesbians in the Workplace," three officers were allegedly inattentive and silently read their Bibles, subsequently being disciplined. A federal appeals court has agreed that selectively punishing them violated their First Amendment rights, since other officers who were also inattentive, but who slept, read secular reading materials, or did paperwork, were not punished. "The plaintiffs were clearly punished because of the content of their behavior, rather than the behavior itself. This is clearly unconstitutional." Altman v. Minn. Dept. of Corrections, #00-1168 and 00-1489, 2001 U.S. App. LEXIS 10968 (8th Cir.).

Text: <caselaw.lp.findlaw.com/data2/circs/8th/001168P.pdf>. [Cross-reference: First Amendment; Religion].

Labor board upholds an arbitration ruling that federal correctional management could require prison employees to wear a dress shirt, without a tie, even when presented with a doctor's note about a skin irritation.

            A drug treatment employee at a federal prison presented a doctor's note stating that he had a skin irritation, and therefore sought to wear polo-type shirts at work instead of a dress shirt and tie. An arbitrator upheld his supervisor's decision to require him to wear a dress shirt without a tie, in a ruling stating that the doctor's note "cast great doubt on the grievant's credibility, sincerity and mental health."

            This ruling has been upheld by the National Labor Relations Board, which noted that there was no evidence that the prison had changed its dress policy or that employees had been allowed to wear more casual clothing in the past. While the arbitrator may have been "intemperate" in commenting on the doctor's note, this did not prove that he was biased or that his decision was wrong. AFGE L-4044 - Council of Prisons L-33 and Federal Corr. Inst., Three Rivers, Tex., #0-AR-3314, 2001 FLRA LEXIS 45, 57 FLRA No. 27, 39 (1914) G.E.R.R. (BNA) 657 (4/30/01).

Text: <www.flra. gov/decisions/v57/57-027.html>.

Complete denial of all out-of-cell exercise to prisoner confined in "phone booth" size cell during 6 month prison lockdown could be an Eighth Amendment violation when prisoner posed no special security risk; defendant prison guards and warden were not entitled to qualified immunity.

            A federal appeals court has ruled that a prisoner's claim that he was denied all out-of- cell exercise for six months without posing any special security risk, and while being confined in a cell "the size of a phone booth," stated a claim for violation of the Eighth Amendment from which defendant prison guards and the warden were not entitled to qualified immunity.

            The alleged denial of out of cell exercise took place during a prison lockdown. The plaintiff prisoner was allegedly restricted in his movements to a once a week shower, three family visits and two brief trips to the prison's medical unit, during which he was shackled and chained to the inmate in front and behind him. The cell in which he was incarcerated was 122 inches by 43 to 56 inches.

            The prisoner claimed that, as a result of the denial of exercise, he suffered from migraines, heartburn, stomach cramps, neck pains, constipation, and depression. He also claimed that he repeatedly complained to each of the named defendants, filed a grievance, and requested medical attention frequently because of the impact of the denial of exercise but that the defendants "did nothing." The appeals court found that as "early as 1986--10 years before this lockdown was instituted," it was clearly established that a lack of exercise could rise to a constitutional violation, and in 1996, it was "objectively unreasonable" to institute a complete 6-month denial of all out-of-cell exercise privileges for segregated prisoners. Delaney v. DeTella, No. 00-4145, 256 F.3d 679 (7th Cir. 2001).

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

Federal appeals court rules that Los Angeles County sheriff's department, in checking records to determine when prisoners are to be released, acts on behalf of the county whose jails it administers, and not as an "arm of the state," and therefore is not entitled to Eleventh Amendment immunity in lawsuit by former prisoners claiming that they were improperly detained for longer time periods.

            In a lawsuit against Los Angeles County and the sheriff's department, a number of former detainees claimed that they were kept in county jails after all legal justification for their seizure and detention ended, in violation of both federal and state law.  A federal appeals court has ruled that the county sheriff's department, when implementing its policy of conducting prisoner release records checks acts for the county in its capacity as the administrator of the county jails, and not on behalf of the state of California. It therefore held that both the sheriff's department and the county are subject to possible liability under 42 U.S.C. Sec. 1983 in the suit, since county entities, as opposed to those that are an "arm of the state" are not entitled to Eleventh Amendment immunity. Streit v. County of Los Angeles, #99-55897, 236 F.3d 552 (9th Cir. 2001).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>. [Cross- references: Defenses: Eleventh Amendment Immunity].

Prisoner shot and rendered paraplegic during an escape attempt while being transported awarded nothing by California federal jury on his claim that excessive force was used against him.

            A prisoner being transported through an airport was shot and rendered paraplegic by officers when he attempted to escape. The prisoner was facing possible prosecution for murder and jewelry store robbery, and tried to climb a fence to get away from the officers who were transporting him. One of them fired three shots which struck him in the back, and he filed a federal civil rights lawsuit against both officers, claiming excessive force. Federal court jurors returned a verdict in favor of the defendant officers. Mounsaveng v. Krug, No. CIV F 98 6078, U.S. Dist. Ct. E.D. Cal., reported in The National Law Journal, p. B3 (Aug. 13, 2001).

Michigan prison officials had discretion to deny television network's request for an on- camera interview with prisoner Dr. Jack Kevorkian, assisted suicide advocate.

            An intermediate Michigan state appeals court ruled that it was improper for a trial judge to order prison officials to allow ABC-TV to conduct an on-camera interview with prisoner Dr. Jack Kevorkian, imprisoned for participating in an assisted suicide of a terminally ill man, for which he was convicted of second-degree murder. In a lawsuit brought by ABC, a county judge had ordered the state department of corrections to permit the interview, but the appeals court ruled that the department had the discretion to decide whether or not to allow such interviews.

            The plaintiff television network claimed that restricting the interview violated the First Amendment, but the defendant argued that allowing cameras in the prison might present security concerns. The defendant did offer the tv network possible access to Kevorkian for an off-camera interview with an individual reporter.

            A state administrative rule concerning inmate interviews says that the department "shall grant requests for personal interviews of a prisoner if the number and duration of the interviews are reasonable and the granting of the request does not create a threat to security, order, or rehabilitation." The appeals court rejected the argument that the word "shall" meant that the department had to grant such requests, finding that the defendants plainly had the discretion to deny requests if they are "unreasonable" or pose threats to "security, order, or rehabilitation. The trial court's order that this discretion be exercised "in a particular fashion" was an abuse of discretion. American Broadcasting Companies, Inc. v. Mich. Dept. of Corrections, No. 228757, unpublished, (Mich. App. June 1, 2001).

Full text: <www.state.mi.us/mdoc/>.

Reporter could not be barred from access to county jail based on the critical content of a prior article she wrote.

            A federal court has granted a weekly free newspaper and its reporter summary judgment in its lawsuit against a county sheriff and other correctional officials claiming that their First Amendment rights were violated when the reporter was allegedly denied access to the county jail in retaliation for a prior negative newspaper story. The reporter was denied access to a legal aid program for incarcerated mothers. The court ruled that, even if the reporter had no constitutional or statutory right to attend the program, when denial of access was based on the content of her prior article about the jail, this violated the First Amendment. Additionally, the court ruled that the defendants had to "admit her to the jail on the same terms as other reporters." The Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001).

Specific statute giving a prisoner in Missouri only one year to sue the corrections department for any injuries barred suit for injuries inmate suffered when van she was being transported in overturned; more general five-year statute which would have applied if injured party was not a prisoner had no bearing on the case.

            A Missouri prisoner was injured when the van she was being transported in overturned and went off the highway while being driven by a correctional officer. She sued the Missouri Department of Corrections approximately five years after the accident. The defendant Department was granted summary judgment on the basis that the lawsuit was not filed within an applicable one-year statute of limitations.

            An intermediate state appeals court upheld this result, rejecting the plaintiff's argument that a five year statute of limitations, rather than the one-year statute, was applicable to lawsuits arising out of negligent driving by a Department of Corrections employee. The court noted that the one-year statute applied, by its plain language, to "all" lawsuits brought by an offender against the department, so that the more general five year statute, which might have applied if the injured party was not an inmate, had no bearing on the case. Kinder v. Missouri Dept. of Corrections, #WD 58592,  43 S.W.3d 369 (Mo. App. 2001).

Text: <www.findlaw.com/11stategov/mo/moca.html>. [Cross-references: Defenses: Statute of Limitations].

Correctional officers were not liable for prisoner's death from heat exhaustion while working outdoors; his collapse in 72-degree weather, without prior complaints or symptoms, was simply not foreseeable.

            An Arkansas prisoner, on his first day working outdoors on a "hoe squad," returned to work for the afternoon after lunch break, only to collapse and die from heat exhaustion. The temperature, however, was only 72 degrees, and the prisoner did not complain earlier of any discomfort or exhibit any symptoms of heat exhaustion.

            His estate sued a number of correctional officers, arguing that they violated the decedent's Eighth Amendment rights by requiring him to keep working in the heat and by "delaying" medical treatment after his collapse. A federal appeals court has ruled that the defendant officers were entitled to qualified immunity and could not be held liable under the circumstances.

            The record contained no evidence that any defendant knew they were compelling the decedent to work in disregard of a known serious medical need. Indeed, the prisoner had been medically cleared with no restrictions, and there was no admissible evidence that would show that he displayed any signs of physical difficulty prior to his collapse. The court also found that the officers responded in a quick and reasonable manner while still maintaining the necessary security of the hoe squad after the decedent's collapse. The prisoner was promptly transported to the prison infirmary, and there was no evidence that would support a finding of deliberate indifference to the prisoner's medical condition after his collapse. Mays v. Rhodes, #00-1822, 255 F.3d 644 (8th Cir. 2001).

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

Prisoner stated a claim against sheriff based on assertion that he was not given any medical care for over 30 minutes after his finger tip was severed when deputy shut a cell window door on it, and was not even given his prescription medication to take with him when released hours later.

            A North Carolina prisoner stated a claim for violation of his Eighth Amendment rights by a sheriff when he asserted that his finger tip was severed after a deputy allegedly shut a cell window door on it, and jail officials heard his cries for help, but initially ignored him. He claimed that the ultimate response to the situation displayed indifference to his need for quick medical attention to preserve the possibility of reattaching the tip of his finger, and that even after his release from custody, and as a matter of policy, the jail staff would not release his prescribed medication to him.

            The plaintiff alleged that he shouted and cried loudly for help for over 30 minutes before he was given any assistance, that he was not given any first aid, and that doctors at a medical center later determined that the tip of his finger could not be re-attached and instead amputated the remaining bone of the distal segment of his right index finger. Upon his release several hours later, he claimed that sheriff's department personnel would not give him the medicine bottle containing the medication prescribed for him at the medical center, telling him that he was required to return to the jail periodically over the next several days to receive each pill individually.

            The court also ruled that the prisoner stated a claim under a North Carolina statute, N.C. Gen. Stat. Sec. 162-55, providing for triple damages when a "keeper of a jail shall do, or cause to be done, any wrong or injury to the prisoners committed to his custody, contrary to law." The alleged facts could support a finding that the deputy "intended to slam the cell window door on his finger or, at the very least" disregarded and was indifferent to the plaintiff's safety. Ramsey v. Schauble, 141 F. Supp. 2d 584 (W.D.N.C. 2001).

Prisoner was required to exhaust administrative remedies before proceeding with lawsuit challenging prison drug testing policies, which constituted a claim about "prison conditions," but he was not required to do so on claims that prison officials took retaliatory disciplinary actions against him individually.

            A New York prisoner sued correctional officials, seeking to challenge prison drug- testing procedures as well as claiming that prison officials took various retaliatory actions against him. The trial court dismissed both of his claims, based on his failure to first exhaust available administrative remedies, as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act (PLRA).

            A federal appeals court has ruled that the prisoner's claims challenging the prison's procedures, applicable to all inmates, of obtaining, processing, storing, and testing urine samples for drugs was a lawsuit over "prison conditions," and therefore was subject to the PLRA's exhaustion of remedies provision. It also ruled, however, that the exhaustion of remedies requirement did not apply to the prisoner's claims about alleged retaliatory actions taken against him alone, supposedly in the context of disciplinary proceedings brought against him. Giano v. Goord, #98-2619, 250 F.3d 146 (2nd Cir. 2001).

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

Provision of Prison Litigation Reform Act barring claims for emotional distress unaccompanied by physical injury did not bar Muslim prisoner's lawsuit for violation of his right to practice his religion.

            A former Massachusetts prisoner sued correctional officials and employees over alleged violations of his right to practice his Muslim religion, complaining that he was denied vegetarian meals, access to the "Nation of Islam" newspaper, and possession of a religious medallion.

            A federal trial judge refused to grant the defendants' judgment on the pleadings, rejecting the argument that a provision of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e), limiting access to federal courts for prisoner claims for emotional distress unaccompanied by physical injury applied to bar the suit. "The harms proscribed by the First Amendment, Due Process, or Equal Protection are assaults on individual freedom and personal liberty, even on spiritual autonomy, and not on physical well-being. Intangible rights like these are abridged the moment a state silences free speech or prevents a citizen from following the precepts of his religion.  While the prisoner's transfer to a facility outside of Massachusetts made moot his claim for injunctive relief, his claim for damages could proceed. Shaheed-Muhammad v. Dipaolo, 138 F. Supp. 2d 99 (D. Mass. 2001). [Cross-reference: Religion].

Supervisory corrections officer could not be held liable for death of inmate stabbed by five fellow inmates; no direct connection was shown between the death and any alleged conduct of the officer.

            The family of an inmate in Puerto Rico stabbed to death by five fellow inmates filed a federal civil rights lawsuit against Puerto Rican officials and corrections officers, asserting claims for failure to protect under the Fifth, Eighth, and Fourteenth Amendment.

            The trial court ruled that only the inmate's heir, his son, and the son's mother, as his legal guardian, had standing to bring the suit in a representative capacity on behalf of the decedent for his pain and suffering prior to death. Other family members, such as his mother and sisters, could not sue in their individual capacities.

            The court also granted a motion to dismiss by a supervisory corrections officer named as a defendant. There was no evidence, the court found, that his conduct amounted to condonation or tacit authorization of any alleged constitutional violation, and there was a lack of any "direct link" between the supervisor's alleged conduct and the prisoner's death. Reyes Vargas v. Rosello Gonzalez, 135 F. Supp. 2d 305 (D. Puerto Rico 2001).

Federal court overturns $500,000 jury award against county in prisoner's claim of excessive force by jail detention officers; failure to specifically train officers that they were prohibited from standing on an detainee's back in an effort to restrain him did not constitute a "glaring" omission showing that county was deliberately indifferent; size of verdict also found excessive.

            A detainee in a county jail on domestic violence charges alleged that detention officers grabbed him when he was purportedly slow in taking off his jacket, and then threw him down, taking a hold of his neck and began choking him. He was placed in a restraint chair, and claimed that the officers continued to taunt and hit him after he was restrained. While he claimed that he did not resist the officers, the officers stated that he did, and that they had to use force to restrain him. At one point, one of the officers said that he put his foot in the prisoner's back and forced him back down to the floor because he was trying to get up.

            The detainee sued the county, alleging that it was liable for the officers' actions because it had a "custom and policy of failing to adequately train, supervise or discipline" them regarding the excessive use of force. A jury agreed, awarding $500,000 in damages against the county.

            A federal trial court granted the county judgment as a matter of law, setting aside the jury's verdict. It noted that the evidence in the case showed that the county's program for training detention officers included instruction in the basic constitutional limitations on the use of force, including the prohibition on using excessive force against a cooperating nonresistive detainee.

            "If, as the jury apparently believed, the detention officers did what plaintiff claimed--i.e., assaulted him and repeatedly struck him without justification or necessity and without any resistance on his part--it cannot be said that they did so as a result of inadequate training by the county. Such conduct would have been a clear violation of the county's policies and the training the officers received concerning the use of force."

            The court rejected the plaintiff's argument that it was a "glaring omission" in the training that the officers were not "specifically told during training they were prohibited from standing on an individual's back in an effort to restrain the person."             The court also found that the jury's verdict of $500,000 was excessive and against the weight of the evidence produced at trial. The court stated that the size of the award appeared to be improperly motivated by a desire to punish the county and was not related to the injuries that the plaintiff presented proof of. Lewis v. Board of Sedgwick County Commissioners, 140 F. Supp. 2d 1125 (D. Kan. 2001). [Cross-references: Damages: Compensatory].

Trial court did not abuse its discretion in ordering new trial in case where jury found that some prison guards used excessive force against prisoner but awarded only $1 in nominal damages despite evidence of actual injuries; appeals court rules, however, that issues of liability and damages were "so intertwined" that a new trial should consider all issues, not just damages, setting aside $300,000 damage award from second trial.

            A Pennsylvania prisoner filed a federal civil rights lawsuit against a number of prison guards claiming that they had assaulted him in two separate incidents. A jury found that some of the guards had acted reasonably, but found four others liable and awarded the plaintiff $1 in damages. The trial court ordered a new trial limited to the issue of damages, and in the retrial prevented the defendants from arguing that some of the guards no longer in the case had caused the plaintiff's injuries. In the second trial, the jury awarded the plaintiff $300,000 in damages.

            A federal court has upheld the trial judge's decision granting a new trial, but also ruled that the issues of liability and damages were so "intertwined" as to make a fair trial on damages alone "impossible," and ordered a new trial on all issues.

            The prisoner's lawsuit included claims about an alleged beating by officers who he said beat him unconscious without provocation and while he was in handcuffs. The officers involved in the incident said that the prisoner began screaming and punched an officer in the face, and then had to be subdued.

            In a second incident, the prisoner claimed that an officer who was searching him before he went outside for exercise improperly fondled his buttocks and then punched him in the face when he complained, followed by a beating by several other officers, including blows struck after he was handcuffed.  The officers involved in that incident also stated that the prisoner had punched two of them, and forcibly resisted the search. Medical records and the prisoner's undisputed testimony in the second incident indicated that two bones in his left hand and three in his right hand were broken and he required stitches and urinated blood afterwards.

            Given this evidence of actual injuries, the appeals court concluded that the trial court did not abuse its discretion in concluding that an award of only nominal damages was against the weight of the evidence, and that he had improperly failed to instruct the jury that they could award compensatory damages for pain and suffering, and need not limit such awards to out-of-pocket monetary expenses.

            At the same time, the appeals court found, it was improper to limit the retrial to the issue of damages alone. The proofs that the prisoner submitted, upon which the finding of liability rested, "necessarily form the foundation for the award of damages," and there was "no conceivable fashion by which a second jury could fairly evaluate the extent" of his damages "without also fully appreciating the manner in which the force, both reasonable and excessive, gave rise to his injuries." The defendants, therefore, were entitled to a new trial on all issues. Pryer v. Slavic, #00-3297, 251 F.3d 448 (3rd Cir. 2001).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-references: Damages: Compensatory].

Prisoner who was barred, by Prison Litigation Reform Act, from receiving compensatory damages for mental distress from failure to receive kosher diet could still be awarded punitive damages by a jury; appeals court orders new trial on punitive damages alone.

            A federal jury awarded a Kansas prisoner $3,650 in compensatory damages and $42,500 in punitive damages against a prison chaplain for allegedly denying him approval for the receipt of a kosher diet. The prisoner had declared that he had converted to Judaism, but the chaplain required that the prisoner be "active in the Jewish Group" for 90 days to be eligible for the kosher diet, based on an alleged concern over the prisoner's sincerity.

            The chaplain had only looked at the prisoner's file and determined that he had listed Protestant as his religion earlier, failing to find, elsewhere in the file, a "change of religious preference form" or two prior requests for a kosher diet.

            A federal appeals court ruled that: (1) 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act, barring awards of damages for mental distress in the absence of physical injury barred the award of compensatory damages; (2) The award of punitive damages was also flawed because the jury had been instructed to consider the amount of compensatory damages in setting the amount of punitive damages; (3) The plaintiff was entitled to an award of nominal damages of $1 on remand, based on the jury's finding that there had been a violation of his constitutional rights; and (4) A new trial should be granted on the issue of punitive damages alone.

            The appeals court explicitly held that the Prison Litigation Reform Act does not bar awards of punitive damages in cases such as this, and that the issue of whether punitive damages were appropriate was a question for the jury. Searles v. Van Bebber, No. 99-3076, 251 F.3d 869 (10th Cir. 2001).

Text: <www.kscourts.org/ca10/>. [Cross-references: Damages: Punitive; Prison Litigation Reform Act: Mental Injury].

Qualified immunity denied to prison officials on claim that they acted with deliberate indifference to male guard's alleged sexual misconduct towards female prisoner in special unit for past victims of sexual trauma; factual issues presented also on whether practice of pat searches of such prisoners by male guards was reasonably related to legitimate penological objectives.

            A female federal inmate placed in a special unit for past victims of sexual trauma claimed that she was forced to submit to pat searches by male guards, including one, in particular, who made "unauthorized approaches" of a sexual nature towards her. She claimed that even after she complained of such harassment, it continued for several months, culminating in a physical assault. She also alleged that she was subjected to "taunts and humiliation" by this officer after she reported the assault, and further claims that he has had sexual relationships with other female prisoners in the institution, so that supervisory personnel "knew or should have known" that he was unfit for the position.

            A federal trial court rejected motions for qualified immunity, ruling that there were sufficient factual issues concerning whether the practice of male guards conducting pat searches of female prisoners in the sexual trauma unit was reasonably related to legitimate penological objectives. The court also ruled that the plaintiff was not required, to prove her Eighth Amendment claim, to show that the policy of such cross-gender pat searches was adopted with malice or the intent to injure or humiliate her, but only that prison officials were "deliberately indifferent" to such prisoners' vulnerability.

            The court also found sufficient factual issues were presented on the issue of whether prison officials were aware of the male guard's alleged inappropriate conduct towards the plaintiff and failed to take reasonable measures to protect her. Finally, the court ruled that the allegation that prison officials failed to investigate or discipline the officer after she complained about the alleged assault stated a claim for violation of clearly established Eighth Amendment law, given her claim that this left her exposed to continued harassment. She asserted that after reporting the assault to supervisory personnel, she was still exposed to her alleged assailant and he was "at liberty to, and did, harass her, fondle her, spit on her on one occasion, and inform her that complaints would be to no avail." Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn. 2001).

Correctional center supervisor's alleged decision to allow lieutenant to continue to have access to female unit after receiving information that he was sexually abusing female inmates in order to attempt to catch him "red-handed" could be found to be deliberately indifferent to the risk that the lieutenant would rape a female prisoner.

            Supervisory personnel at a federal correctional center in New York were denied qualified immunity in their attempt to obtain dismissal of a lawsuit in which a female prisoner asserted that she was raped by a lieutenant at the facility. The trial court found that it was a factual issue for the jury to decide whether three supervisors should be liable for inadequate supervision of the lieutenant. The lieutenant pled guilty to providing gifts (cosmetics, jewelry and other items) to an inmate with whom he was having a sexual relationship, but was not charged with sexual assault.

            The prisoner claimed, however, that he raped her and that she was threatened with retaliation if she complained. The court did dismiss claims against another correctional officer, since he did not supervise anyone and "did all he had the power to do to protect plaintiff--he diligently interviewed plaintiff, had her put her allegations in writing, and passed her complaint on to a supervisor."

            The court rejected the claims by two of the defendant supervisors that they could not be held liable because the last alleged sexual assault by the lieutenant took place before they began working at the facility. The court found that the lieutenant's "continued access to the female unit during their tenure, however, would suffice to permit the conclusion that a 'serious risk of harm' still existed under their supervision for which they could be held liable under the deliberate indifference standard."

            As to a third supervisor, the court found that his alleged decision, after he received information that the lieutenant was sexually abusing female prisoners, to permit him to continue to have access to the female unit to try to catch him "red-handed" could be found to be "deliberately indifferent to the serious harm that might befall plaintiff and other female inmates." Noguera v. Hasty, 2001 U.S. Dist. LEXIS 2458 (S.D.N.Y. 2001).

Alleged city policy of strip searching all detainees placed in a cell awaiting court action was improper, in the absence of suspicion of possession of weapons or contraband.

            An alleged city policy of strip searching all detainees placed in a cell block awaiting court action, even those arrested for misdemeanors and minor offenses violated the Fourth Amendment, in the absence of reasonable suspicion that a particular arrestee was concealing weapons or other contraband on the basis of the crime charged, circumstances of the arrest, or particular facts about the detainee.

            In a lawsuit brought by several detainees, the court ruled that officers did not have grounds to strip search the female detainee, who was stopped for a purported traffic violation and then brought to a police station to check whether she was a wanted individual under a warrant. There was a factual dispute whether she was actually strip searched.

            The court granted summary judgment to a male detainee on his claim that his strip search was improper. He was being released and given an appearance ticket when he was redetained, allegedly because of his comments to officers concerning his arrest. He was strip searched, placed in a cell, and later released on bail. "Defendants did not strip search him until after they had released him and decided to re-detain him," so there was no argument that they reasonably believed that he was in possession of weapons or contraband. Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304 (N.D.N.Y. 2001).

Injunction that prohibited the use of stun belts to control unruly prisoners in court was overbroad to the extent that it prevented their use for controlling court security, such as to prevent escape or violence; appeals court orders injunction modified and rules that plaintiff prisoner, who was convicted, could not represent the interests of unconvicted detainees, so that case was improperly certified as a class action.

            As previously reported, a federal judge in California enjoined the use of stun belts to control potentially disruptive prisoners appearing in court for trial or sentencing. Hawkins v. Comparet--Cassani, 33 F. Supp. 2d 1244 (C.D. Cal. 1999), Jail & Prisoner Law Bulletin, No. 269, p. 77 (May 1999). The action came in a federal civil rights lawsuit filed by a prisoner who was subjected to 50,000 volts of low-amperage electricity during a court hearing where he engaged in a confrontation with the trial judge. The court also certified the case as a class action lawsuit. The court found that the presence of a stun belt on a defendant, even if not actually used, could chill the ability of a defendant to participate fully in their trial. "For example, a defendant may be reluctant to object or question the logic of a ruling--matters that a defendant has every right to do."

            A federal appeals court has reversed, ruling that the trial court had improperly certified a class of all persons in the custody of the county sheriff, because the prisoner who brought the suit (who was appearing for sentencing) could not serve as a representative for prisoners who had not yet been convicted. Eighth Amendment claims, the appeals court noted, concerning the prohibition of cruel and unusual punishment, was the standard for claims of convicted prisoners, while claims of unconvicted detainees must be based on Fourth Amendment claims about unreasonable search and seizure.

            The appeals court further held that the injunction against the use of stun belts was, in any case, overbroad, since it prohibited the use of such belts even if needed to prevent escape or violence. The injunction against the use of the belt was within the trial court's discretion to the extent that it barred the use of the belt for "non-security purposes," but overbroad in barring its use when necessary to protect courtroom security.

            Other possible alternatives to serve such purposes, such as shackles, the appeals court stated, "may prejudice a defendant in the eyes of the jury by impairing the presumption of innocence," and "even at sentencing, where a defendant's guilt is no longer in dispute," shackling "detracts from the dignity and decorum of the proceeding and impedes the defendant's ability to communicate with his counsel," and may "confuse and embarrass the defendant." Removing the defendant from the courtroom "is also problematic since it necessarily limits their Sixth Amendment right to presence."

            The "stun belt offers more effective protection of courtroom security than alternative methods," so that "we should be reluctant to deny recourse to what may be a valuable tool in protecting courtroom security." By "shifting the focus from disruption to security, the belt's 'chilling' effect becomes less prejudicial and the alternatives more so."

            The appeals court therefore remanded for modification of the injunction. Hawkins v. Comparet-Cassani, Nos. 99-55187, 99-55394, 251 F.3d 1230 (9th Cir. 2001).

Text: <www.ce9.uscourts.gov/web/newopinions.nsf/>.

            Juveniles in Adult Prisons and Jails. The product of a nationwide DOJ Bureau of Justice Assistance study intended to improve response to this issue. The report focuses on such issues as what types of facilities are used to house juvenile offenders, what happens to these juveniles, and whether prisons are protecting young offenders from physical, sexual and psychological abuse. NCJ-182503. Single copies available from the National Criminal Justice Reference Service (NCJRS), Rockville, MD 20850. Phone (301) 519-5500 or 1-800-732-3277.

Altman v. Minn. Dept. of Corrections, #00-1168 and 00-1489,
                2001 U.S. App. LEXIS 10968 (8th Cir.).[131]
AFGE C/P and Fed. Corr. Inst., 2001 FLRA LEXIS 45, 57 FLRA No. 27.[131]
American Broadcasting Companies, Inc. v. Mich. Dept. of Corrections, No. 228757, unpublished,
                (Mich. App. June 1, 2001).[133]
The Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001).[133-134]
Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn. 2001).[139-140]
Delaney v. DeTella, No. 00-4145, 256 F.3d 679 (7th Cir. 2001).[131-132]
Giano v. Goord, #98-2619, 250 F.3d 146 (2nd Cir. 2001).[135-136]
Gonzalez v. City of Schenectady, 141 F. Supp. 2d 304 (N.D.N.Y. 2001).[141]
Hawkins v. Comparet-Cassani, Nos. 99-55187, 99-55394, 251 F.3d 1230 (9th Cir. 2001).[141-142]
Kinder v. Missouri Dept. of Corrections, 43 S.W.3d 369 (Mo. App. 2001).[134]
Lewis v. Board of Sedgwick County Commissioners, 140 F. Supp. 2d 1125 (D. Kan. 2001).[137-138]
Mays v. Rhodes, #00-1822, 255 F.3d 644 (8th Cir. 2001).[134-135]
Mounsaveng v. Krug, No. CIV F 98 6078, U.S. Dist. Ct. E.D. Cal.,
                reported in The National Law Journal, p. B3 (Aug. 13, 2001).[132-133]
Noguera v. Hasty, 2001 U.S. Dist. LEXIS 2458 (S.D.N.Y. 2001).[140-141]
Pryer v. Slavic, #00-3297, 251 F.3d 448 (3rd Cir. 2001).[138-139]
Ramsey v. Schauble, 141 F. Supp. 2d 584 (W.D.N.C. 2001).[135]
Reyes Vargas v. Rosello Gonzalez, 135 F. Supp. 2d 305 (D. Puerto Rico 2001).[136-137]
Searles v. Van Bebber, No. 99-3076, 251 F.3d 869 (10th Cir. 2001).[139]
Shaheed-Muhammad v. Dipaolo, 138 F. Supp. 2d 99 (D. Mass. 2001).[136]
Streit v. County of Los Angeles, #99-55897, 236 F.3d 552 (9th Cir. 2001).[132]