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Access to Courts/Legal Info

****Editor's Case Alert****

     A prison regulation under which a prisoner's Uniform Commercial Code materials were seized did not violate his constitutional right of access to the courts. The prisoner did not show that the seizure of the materials deprived him of the ability to pursue arguably valid legal claims. The prisoner wished to pursue his "right' to copyright or trademark his name in order to prevent public officials from using it without "just compensation." The items confiscated from his cell included the kind of papers and documents that are necessary for filing a UCC commercial lien. The regulation, the court noted, is intended to address the practice among inmates in Pennsylvania of filing fraudulent liens against public officials (including correctional officers and administrators) pursuant to so-called "redemption" and name copyrighting schemes, among others. Courts have uniformly declared such commercial liens brought by inmates against prosecutors, judges, correctional officers and other government employees, as null and void, and a regulation designed to prevent the filing of such liens is not improper. Edmonds v. Sobina, No. 08-1851, 2008 U.S. App. Lexis 21955 (Unpub. 3rd Cir.).

     Prisoner failed to show how prison's action of confiscating his commercial law (Uniform Commercial Code--UCC) materials denied him his constitutional right of access to the courts in relationship to his criminal appeal. Policy against prisoners possessing such UCC materials furthered legitimate penological interests, and did not violate the prisoner's constitutional rights. Johns v. Mich. Dept. of Corrections, Case No. 1:07-cv-95, 2008 U.S. Dist. Lexis 84384 (S.D. Mich.).

     A prisoner's constitutionally protected right of access to the courts did not extend to the filing of a lawsuit in state court for breach of contract. Brown v. Leavenworth County, Kansas, Case No. 08-3175, 2008 U.S. Dist. Lexis 75620 (D. Kan.).

Expert Witnesses

     A trial court did not abuse its discretion in allowing a prison guard to testify about his experiences with prison fights as part of the evidence in a case that resulted in a prisoner being sentenced to death for murder. U.S. v. Jackson, No. 06-41680, 2008 U.S. App. Lexis 25294 (5th Cir.).

False Imprisonment

     Sheriff was not entitled to qualified immunity on prisoner's claim that he was improperly kept in custody for almost a month after drug charges against him were dropped in another county. The sheriff failed to show that he had acted in good faith, based on the record. McGee v. Carrillo, No. 07-51363, 2008 U.S. App. Lexis 21960 (Unpub. 5th Cir.).

First Amendment

     A policy barring committed sex offenders from having access to sexual material relating to children did not violate their First Amendment rights. Possession of such material would undermine the treatment being provided to the plaintiff, who had been convicted of crimes against children. Stewart v. Richards, Case No. C08-5275, 2008 U.S. Dist. Lexis 83586 (W.D. Wash.).

     Genuine factual issues existed as to whether an inmate was removed from his prison law library job in retaliation for filing a grievance concerning a federal prison camp's practice of taking pictures of visitors and allegedly opening his legal mail outside his presence. Nunez v. Renda, Civil No. 3:CV-05-1763, 2008 U.S. Dist. Lexis 86280 (M.D. Pa.).

Medical

      A prison official could not be found to have acted with deliberate indifference to a prisoner's medical needs concerning a stair restriction when his actions were completely in compliance with the medical restriction imposed. If the prisoner was not satisfied with the restriction imposed, he should have asked medical personnel to restate it in a manner that would make it clear that he should not be made to climb the stairs to a dining hall on the second floor. Worrell v. Bruce, No. 08-3049, 2008 U.S. App. Lexis 22202 (10th Cir.).

    A prisoner who alleged that prison medical personnel acted with deliberate indifference to his hip and lower back pain and to an ear problem failed to timely object to a magistrate judge's report recommending the rejection of his claims, properly resulting in the dismissal of some claims and summary judgment for the defendants on others. Duffield v. Jackson, No. 08-6002, 2008 U.S. App. Lexis 23553 (10th Cir.).

     An undisputed affidavit by the medical director of the facility at which the plaintiff inmate was confined indicated that his medical treatment had met acceptable standards, despite his argument that employees ignored him when he complained of chest pain. The prisoner failed to submit an affidavit of his own or any response to the defendant's motion for summary judgment. Price v. Dept. of Rehabilitation and Correction, Case No. 2007-06543, 2008 Ohio Misc. Lexis 248 (Oh. Ct. of Claims).

Prison Conditions: General -- Sanitation

     Prisoner's allegation that guards, for two weeks, without any explanation, rejected his requests for "basic" cleaning supplies, despite cell conditions that included human waste, filth, and a heavy infestation of roaches, stated a viable Eighth Amendment claim, as did his contention that he was not provided with more than a thin blanket when his unheated cell was exposed to "frigid" air in November. A claim for deliberate indifference to his serious medical needs, however, was not viable, since the symptoms he described amounted to a "common cold," which did not indicate a serious medical need. Wheeler v. Walker, No. 08-1898, 2008 U.S. App. Lexis 25434 (Unpub. 7th Cir.),

Prison Litigation Reform Act: Exhaustion

     The Prison Litigation Reform Act's requirement that a plaintiff prisoner exhaust available administrative remedies on a grievance before pursuing a lawsuit in court does not apply to a plaintiff who is no longer confined. The plaintiff , who was no longer incarcerated at the time he filed his lawsuit, therefore, despite not having exhausted administrative remedies, could pursue his failure to protect lawsuit concerning his beating by gang members after he was housed with them despite bearing the tattoos of a rival gang he previously belonged to. Valdivia v. County of Santa Cruz, Case Number 08-00916, 2008 U.S. Dist. Lexis 79089 (N.D. Cal.).

     A prisoner's claims concerning being denied access to religious materials and items needed to maintain his health should be dismissed because he failed to obtain a "Director's Level Decision" on his grievance, failing to exhaust his administrative remedies available under California law. Wilson v. Wann, No. CIV S-06-1629, 2008 U.S. Dist. Lexis 82318 (E.D. Ca.).

     In a prisoner's lawsuit alleging that deliberate indifference to his serious medical needs caused him to suffer an insulin-induced heart attack, further proceedings were ordered as to whether the prisoner's filing of a medical request form was the equivalent of filing a grievance, and, if it was, whether he should have or could have known how to exhaust that grievance. Williams v. Marshall, No. 08-11311, 2008 U.S. App. Lexis 22709 (Unpub. 11th Cir.).

     While an Oklahoma prisoner filed two separate grievances concerning the alleged failure to protect him from an assault by other prisoners, he failed to exhaust the administrative process on either of them, and did not follow established procedures. As a result, the defendants were entitled to summary judgment. Green v. Sirmons, No. 08-7032, 2008 U.S. App. Lexis 23051 (10th Cir.).

Prisoner Assault: By Inmates

     The plaintiff prisoner failed to show that he had been threatened by the inmate who attacked him, and that the defendant prison officials had been aware of any such threat and acted with deliberate indifference to the risk of harm. Cortez v. Ford, Civil Action No. 1:07-CV-1466, 2008 U.S. Dist. Lexis 86348 (M.D. Pa.).

****Editor's Case Alert****

     A prisoner's allegation that a lieutenant at the prison deliberately permitted another prisoner to throw feces on him, if true, showed an Eighth Amendment violation. Norfleet v. Stroger, No. 08-1066, 2008 U.S. App. Lexis 22495 (7th Cir.).

     Prisoner who was a member or associate of the Mexican Mafia gang could pursue his claim that a prison guard put him at risk of assault by gang members by telling others that he had engaged in a homosexual act. This was the case even though he had not actually been subsequently attacked as a result of the statement. The prisoner presented undisputed facts indicating that the gang did not tolerate homosexual acts, and that the guard knew of the risk of harm that making such a statement to gang members created. The court stated that this was different from cases in which prisoners' claims of a failure to protect were rejected when they were based on a speculative fear that they would later be attacked if other prisoners thought that they were a "snitch," since the alleged action here would create a known specific risk of attack. Radillo v. Lunes, 1:04-CV-5353, 2008 U.S. Dist. Lexis 82576 (E.D. Cal.).

Prisoner Assault: By Officers

     Prisoner failed to present evidence that correctional officials condoned, permitted, or participated in correctional officers' alleged attack on him, nor that they ratified the alleged attack or allowed a policy to exist that caused the attack. The officials, therefore, could not be held liable, while further proceedings were needed on the claims against the officers. Liner v. Goord, 98-CV-6343L, 2008 U.S. Dist. Lexis 79522 (W.D.N.Y.).

     Officers were not entitled to summary judgment of prisoner's claim that they used excessive force against him, beating him with batons for ten minutes, and kicking and punching him. While there was some evidence in the record that his visible injuries were not consistent with those expected to be present follow such a beating, there was a factual issue as to whether his version of the incident or that of the officers was more credible. Moore v Casselberry, 05-CV-6063L, 2008 U.S. Dist. Lexis 88764 (W.D.N.Y.).

Prisoner Death/Injury

     A Colorado prisoner sought damages for injuries he allegedly suffered when a showerhead, newly replaced by other inmates, allegedly broke off, hitting him in the head in a manner that rendered him unconscious. He also complained that prison staff members failed to check the showerhead after its installation, and that he received inadequate medical care for his injuries. The court ordered that the lawsuit be dismissed if the prisoner failed to specify more particularly what he claimed each defendant did or failed to do. Sanaah v. Arrellano, Civil Action No. 08-cv-02117, 2008 U.S. Dist. Lexis 91327 (D. Co.).

     Estate of deceased prisoner and his heirs could not pursue, in federal civil rights lawsuit, claims arising from the death of the prisoner, allegedly shot in the head with a plastic bullet by a prison employee, and pepper sprayed by other prison employees who allegedly then placed a plastic bag over his head to increase the harm suffered from the burning effect of the pepper spray. The plaintiffs, in alleging only negligence by the defendants in causing the death failed to show that the defendant supervisory personnel did anything that they should have known would cause prison employees to take actions that would violate constitutional rights. State law claims were time barred, based on the plaintiffs' prior filing of a state court lawsuit that they voluntarily dismissed before attempting to raise such claims in the federal court proceeding. Provencio v. Vazquez, 1:07-CV-0069, 2008 U.S. Dist. Lexis 73255 (E.D. Cal.).

     In a case where a detainee allegedly died at a jail following a beating, his parents failed to show that officers who sent him to the jail rather than to a hospital were aware that his mental disorder, if not immediately treated, would create a serious risk of harm. Evidence indicated that the detainee behaved in a manner that was calm and that seemed to indicate that he was "aware" of his surroundings, giving no indication of urgently requiring medical treatment. The officers were also entitled to qualified immunity, since they had both a duty to respond to the detainee's medical needs and to honor a right to decline medical treatment. King v. County of Gloucester, No. 07-3954, 2008 U.S. App. Lexis 24833 (Unpub. 3rd Cir.).

Prisoner Discipline

     A federal prisoner lost good conduct time when convicted in a disciplinary proceeding of fighting with another prisoner, and he sued, claiming that he was denied due process, based on a failure to inform him of the evidence against him and a reliance on hearsay in an incident report. While the lawsuit was pending, however, he was granted supervised release on his sentence, although he was transferred to another facility on the basis of an indictment for mail fraud. He could not continue to pursue his due process claim, since he did not suffer any actual continuing injury once his incarceration on his sentence ended. The possibility that the discipline would have an impact on his classification in the future was too "speculative" to show continuing consequences, and he suffered no continuing harm from the loss of good time credits. Scott v. Schuykill FCI, No. 07-4494, 2008 U.S. App. Lexis 23215 (Unpub. 3rd Cir.).

     Federal prisoner received all the process that was due him in two disciplinary proceedings. In the first, he received notice of the alleged offense, an opportunity to present a defense through documentary evidence and witnesses, help from a prison staff member, and a written decision summarizing the evidence relied on and the reasons for the sanctions imposed. Additionally, in that proceeding, the prisoner himself admitted making a phone call that violated prison rules, and requesting that his brother get in touch with a third party, which supported the disciplinary determination. In the second proceeding, the sanctions imposed--which included two months' loss of commissary privileges and a suspended sentence of disciplinary segregation-- did not constitute a sufficient hardship to deprive the plaintiff of a liberty interest, so that due process protections were inapplicable. Milton v. Ray, No. 08-1593, 2008 U.S. App. Lexis 24925 (3rd Cir.).

     Prisoner received adequate notice of female prison volunteer's accusation that he touched her in a sexually inappropriate way when her email containing the accusation was read to him prior to a disciplinary hearing. The failure to provide him with a written copy of the email did not violate his due process rights. Brenneman v. Knight, No. 08-2121, 2008 U.S. App. Lexis 22498 (Unpub. 7th Cir.).

Privacy

     An alleged violation of Ohio correctional rules and regulations in informing a prisoner's mother that he had Hepatitis C did not constitute negligence or any other viable claim for damages under Ohio state law. The Ohio Court of Claims lacked jurisdiction over any claim concerning violation of the federal constitutional right of privacy based on the improper disclosure of medical records. Petty v. Ohio Dept. of Rehabilitation and Correction, Case No. 2007-07001, 2008 Ohio Misc. Lexis 206 (Oh. Ct. of Claims).

Racial/National Origin Discrimination

     The use of race as a factor in assigning cellmates on the basis of concern about gang and racial violence was supported by legitimate safety and security interests. The plaintiff prisoner failed to show that prison employees should have known that their use of race in this manner was unlawful under international treaties or the equal protection clause of the Fourteenth Amendment. Mayweathers v. Hickman, Case No. 05cv0713, 2008 U.S. Dist. Lexis 85154 (S.D. Ca.).

Religion

     The plaintiff prisoners' purchase of non-kosher food items from the prison store provided prison officials with some objective factors to use in determining whether their request for a kosher diet was based on a sincere religious belief. A policy of removing, temporarily, such prisoners from the kosher meal program while they possessed non-kosher food did not violate the First Amendment. Ketzner v. Williams, No. 4:06-CV-73, 2008 U.S. Dist. Lexis 90500 (W.D. Mich.).

Segregation: Administrative

     Colorado prisoner did not have a constitutionally protected liberty interest in staying in the general population and out of administrative segregation, especially in the absence of any specific claims about the length or conditions of the administrative segregation. Restricting him for 14 months from possessing headphones, glasses, a lamp, fan, and television while on restricted privilege status also did not violate any constitutionally protected liberty interest. Further, the prisoner's claims concerning his disciplinary convictions could not be pursued in a federal civil rights lawsuit when they had not been overturned on appeal or otherwise invalidated. Doyle v. Cella, Civil Action No. 07-cv-01126, 2008 U.S. Dist. Lexis 83837 (D. Co.).

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     Statistics: Prisoners in 2007. Presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2007, collected from the National Prisoner Statistics series. This annual report compares changes in the prison population during 2007 to changes from yearend 2000 through yearend 2006. It provides data on the imprisonment rates for prisoners sentenced to more than one year by jurisdiction; the number of males and females in prison; age, race, and gender distributions; admissions and releases; the number of inmates in custody in state and federal prisons and local jails; and custody incarceration rates. It also includes the count for inmates held within facilities operated by and for the military, U.S. territories, Indian country, Immigration and Customs Enforcement (ICE), and juvenile authorities. Highlights include the following: At yearend 2007, federal and state prisons and local jails held just under 2.3 million inmates (2,293,157). The number of inmates incarcerated in prison or jail increased by 1.5% during the year. About 1 in 198 U.S. residents was imprisoned with a sentence of more than 1 year in a federal or state prison. The federal prison population experienced the largest absolute increase of 6,572 prisoners, followed by Florida (up 5,250 prisoners), Kentucky (up 2,457 prisoners), and Arizona (up 1,945 prisoners). 12/08 NCJ 224280 Press release | Acrobat file (194K) | ASCII file (34K) | Spreadsheets (zip format 39K)

     Statistics: Probation and Parole in the United States, 2007 - Statistical Tables by Lauren E. Glaze and Thomas P. Bonczar. Presents the number of persons on probation and parole at yearend 2007, by state, with percent changes in each state during the year. The statistical tables provide state-level probation and parole supervision rates and entries and exits. National and state-level data on parole re-incarceration rates are presented. Tables provide the total community supervision population, which includes offenders on probation or parole, in the U.S. for yearend 2000 through 2007. Data are presented on offenders supervised in the community as a percentage of the total correctional population, which includes offenders in prison or jail or on probation or parole. The tables also describe the national-level composition of these populations by race, gender, and offense. 12/08 NCJ 224707  Press release | Acrobat file (354K) | Spreadsheets (zip format 14K)

 Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.

     • AELE's list of recently-noted jail and prisoner law resources.