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Access to Courts/Legal Info

     Prisoner failed to spell out, except in a conclusory manner, any connection between the alleged actions of prison employees and an actual impact on his right of access to the courts, i.e., the inability to pursue legitimate legal challenges to his conviction, sentence, or conditions of confinement. As a result, his lawsuit was properly dismissed for failure to state a claim. Rivera v. Huibregtse, 08-cv-515, 2008 U.S. Dist. Lexis 102650 (W.D. Wis.).

     Prison law librarian and other defendants presented undisputed evidence that the plaintiff prisoner had told them the wrong date for the deadline for his filing of a notice of appeal. They were therefore, at most, negligent in failing to provide him with access to the courts, and were entitled to summary judgment in his federal civil rights lawsuit. Henderson v. Moore, No. C-08-36, 2008 U.S. Dist. Lexis 100846 (S.D. Tex.).

     New York prisoner failed to show that a prison superintendent had any personal involvement in the policies that allegedly resulted in the dismissal of his legal action--policies that limited the number of books he could borrow at a time, and the law libraries' hours of operation. Merely being the facility superintendent was insufficient to impose liability for denial of access to the courts. Shell v. Brun, #00-CV-6152, 2008 U.S. Dist. Lexis 92029 (W.D.N.Y.).

Chemical Agents

     Prisoner failed to present a viable claim that excessive force was used against him on either of two occasions that he was subjected to pepper spray. In the first instance, he used a profane name against a prison employee, retreated into his cell when ordered to go to another unit, and refused to move before pepper spray was used to compel his compliance. As for the second incident, the prisoner himself admitted he was resisting being handcuffed, and that he was asked four times to get in his cell before the pepper spray was used. Thompson v. Carani, CV 106-099, 2008 U.S. Dist. Lexis 97455 (S.D. Ga.).

Defenses: Statute of Limitations

     Oklahoma two-year statute of limitations applied to and barred prisoner's claims that he was injured by guards in a privately run prison during a disturbance that other inmates initiated. While the contract between the corporation and that state indicated that Wisconsin law, the site of the prison, governed the contract, the prisoner was not a party to or a third-party beneficiary of the contract, and his lawsuit was not seeking to enforce the contract, but instead claimed a violation of civil rights, so the provisions of the contract were not relevant to whether or not the lawsuit was timely. Malone v. Corrections Corporation of America, No. 07-3640, 2009 U.S. App. Lexis 1153 (7th Cir.).

Diet

     Prisoners have no right to compel a prison to comply with its internal regulations. The prison made a reasonable effort to serve hot meals, and the prisoners were not entitled to an order either under California law or the Eighth Amendment requiring it to comply with a regulatory mandate to serve two hot meals a day. In re Cannon, #A121142A121143, 2008 Cal. App. Lexis 2357 (1st Dist.).

Disability Discrimination: Prisoner

     Prisoner presented genuine issues as to whether prison officials' alleged denial of crutches or a wheelchair, or of a handicap accessible shower, prevented him from taking a shower or participating in recreation for over two months, and whether crutches or a wheelchair were medically needed to ease his pain, prevent further damage, and shower. His claims for violations of disability discrimination statutes, however, were correctly rejected. Brown v. Lamanna, No. 08-6840, 2008 U.S. App. Lexis 26501 (4th Cir.).

First Amendment

     Prisoner failed to show that correctional defendants confiscated his property in retaliation for his previous filing of grievances, since he failed to show a causal relationship between the decision to confiscate the property and his prior actions. Royster v. Beard, No. 08-3353, 2009 U.S. App. Lexis 1364 (Unpub. 3rd Cir.).

     A prisoner failed to show a sequence of events from which it could be inferred that allegedly false disciplinary charges were filed against him in retaliation for his filing of complaints against correctional personnel. Mahogany v. Rogers, No. 06-31144, 2008 U.S. App. Lexis 18635 (Unpub. 5th Cir.).

Medical Care

     A prisoner with diabetic osteomyelitis could proceed with his claim that a physician's assistant had violated his Eighth Amendment rights by failing to take appropriate action in response to obvious signs of infection in his right foot that was methicillin resistant staphylococcus aureus, requiring surgery. The defendant allegedly merely told him to soak his foot. Recovery of punitive damages, however, was barred under the Prison Litigation Reform Act pursuant to 18 U.S.C.S. § 3626(a)(1)(A), (g)(7). Mitchell v. McDonell, Case No. 3:06-180, 2008 U.S. Dist. Lexis 106148 (W.D. Pa.).

     Prisoner with cystic fibrosis was entitled to injunctive relief requiring him to be fully evaluated at a medical center accredited by the Cystic Fibrosis Foundation. He claimed that prison officials and employees acted with deliberate indifference to his serious medical needs by confiscating a "flutter valve" device which he needed to use every day to clear his airways (contending that it could be used as a weapon), and that a doctor improperly substituted generic enzymes for brand-name pancreatic enzymes. The prisoner presented a doctor's testimony that his current treatment departed from acceptable medical practices. Farnam v. Walker, No.08-CV-3001, 2009 U.S. Dist. Lexis 2781 (C.D. Ill.).

     While the prisoner believed that a different course of treatment would have been preferable for his foot injuries and for the urinary problems he developed after surgery on his foot, he failed to present evidence that the defendants acted with deliberate indifference to his serious medical needs, and the medical records presented refuted any such claim. Latham v. U.S., No. 07-4135, 2009 U.S. App. Lexis 836 (Unpub. 3rd Cir.).

     Even though the treatment provided to a female inmate concluded with her death, there was no indication of deliberate indifference to her serious medical needs. She was seen in the infirmary numerous times, provided with various prescription medications, and examined by medical professionals, as well as being given a special diet, being excused from working, and told to stay in bed. While it may have constituted poor medical judgment not to have conducted additional medical tests on her, there was no evidence that there was a known excessive risk to her health that was ignored. Bennett v. State of Louisiana, No. 07-31189, 2009 U.S. App. Lexis 853 (Unpub. 5th Cir.).

Medical Care: Mental Health

     Prison administrators would be authorized to provide consent to medical treatment on a prisoner's behalf when he was engaged in a hunger strike predicated on "delusional" reasons that showed an "irrational" thought process. Conservatorship of Burton, No. F0548632009, Cal. App. Lexis 96 (Cal. App. 5th Dist.).

Prison and Jail Conditions: General

     Prison officials promptly remedied inmate's complaints about a soiled mattress and his placement in a cell with a transparent plastic shield. His other complaints about cell conditions, including denying him his chosen cleaning materials, one occasion on which the cell block flooded, and the passing to him of a toilet brush through the same cell door slot used to pass wrapped food did not amount to constitutional violations, but were instead minor inconveniences that were part of prison life. Wesolowski v. Kamas, 03-CV-6405, 2008 U.S. Dist. Lexis 99263 (W.D.N.Y.).

     Most of the conditions of confinement challenged by Wisconsin inmates civilly committed as "sexually dangerous" were justified on the basis of security, including restrictions on visitors, leaving the facility, phone call monitoring, inspection of mail, property, and the inmates' persons, requiring restraints during transport, and mandating the wearing of institutional clothes. Walker v. Hayden, No. 08-2628, 2008 U.S. App. Lexis 25014 (Unpub. 7th Cir.).

Prisoner Assault: By Inmates

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

     There was no evidence that deliberate indifference by three jail officers was the cause of a pretrial detainee's death from a beating by his cellmate. While the claim was governed by the Fourteenth Amendment rather than the Eighth Amendment because the decedent was a pretrial detainee, the legal standard for liability was still deliberate indifference to a substantial risk of serious injury. There was no indication that the officers believed that such a risk existed. Further, they were all off-duty when the beating actually took place, after the cellmate returned from a court appearance. Their placement of the cellmate in the cell did not cause the detainee's death. Jenkins v. DeKalb County, Georgia, No. 07-15820, 2009 U.S. App. Lexis 657 (11th Cir.).

Prisoner Assault: By Officers

     Prisoner failed to show that the force used against him in his cell was excessive, or that engaging in further discovery would establish that. The evidence showed that the prisoner refused to obey commands to allow guards to secure his cell door properly by releasing control of a food slot in the door, that he was warned that failure to obey would result in the use of chemical agents and the sending of a "move team" into his cell, and that he was restrained by force when he failed to comply. Poe v. Texas Dept. of Criminal Justice, No. 08-20148, 2009 U.S. App. Lexis 706 (Unpub. 5th Cir.).

Prisoner Death/Injury

     The possibility of claims for medical negligence under 42 U.S.C. Sec 233(a) of the Federal Tort Claims Act does not bar the pursuing of federal civil rights claims for deliberate indifference to serious medical needs of prisoners, so that such a claim against employees and officers of the Public Health Service arising out of the death of a prisoner from allegedly repeatedly untreated penile cancer should not be dismissed. Castaneda v. Henneford, No. 08-55684, 546 F.3d 682 (9th. Cir. 2008).

Prisoner Discipline

     Disciplinary determination finding prisoner guilty of drug possession and smuggling was supported by "some evidence" including reports that a prison official saw him swallow something, that drugs were found in his feces, and that drugs were found in his room. The fact that the determination was reversed, and that a second hearing officer reached a different result did not show, by itself, that the first hearing officer was biased. The prisoner also failed to allege that the purportedly false reports of his involvement in drug offenses were issued out of a retaliatory purpose. Requiring the prisoner to defecate within the view of others in a drug watch room did not violate his right to privacy. Sital v. Burgio, 06-CV-6072, 2009 U.S. Dist. Lexis 1127 (W.D.N.Y.).

     While a prisoner sought damages for violation of his civil rights on the basis that false disciplinary charges were filed against him, this amounted to a claim for malicious prosecution, which does not amount to a violation of constitutional rights. Williams v. Dretke, No. 07-11071, 2009 U.S. App. Lexis 512 (5th Cir.).

Prisoner Suicide

     Police officers were aware that a pretrial detainee was suicidal, and, although the actions they took proved insufficient to prevent his death, there was no reasonable basis to determine, on the basis of the evidence presented, that they acted with deliberate indifference to the risk of his suicide. The officers did take dangerous items, including a razor blade, from the detainee, handcuffed him behind his back, and sought help from a special unit to assist with the emotionally disturbed arrestee. As they waited for assistance, they cornered the detainee against a wall, and chased him when escaped and ran up stairs to a roof from which he jumped to his death. Kelsey v. City of New York, 07-0290-cv, 2009 U.S. App. Lexis 840 (2nd Cir.).

Privacy

     Federal prisoner claimed that the Bureau of Prisons based his transfer to a maximum security facility on "false and fabricated" documents about him maintained in its records, and he sought injunctive relief to undo the transfer. These claims, the court found, could exclusively be addressed under the Privacy Act, 5 U.S.C. Sec 552a, authorizing claims only against federal agencies. The court therefore dismissed the prisoner's constitutional claims, and also dismissed all claims against individuals in their individual capacities. Because the U.S. Department of Justice has exempted the BOP Central Records System from Sec. 552a(d)'s access and amendment provisions, and from Sec. 552a(g)'s civil remedies, the remainder of the prisoner's claims were also dismissed. Lynn v. Lappin, Civil Action No. 08-0418, 2009 U.S. Dist. Lexis 663 (D.D.C.).

Public Protection

     County was not liable for the death of two persons allegedly murdered by an inmate on work release. The plaintiffs, representatives of the decedents' estates, argued that the prisoner's work release should have been revoked when one of the decedents complained that the prisoner was harassing her, and that failure to do so violated due process under the Fourteenth Amendment. The court noted that there is no constitutional right to protection against violence by private persons. Additionally, there was no evidence that county officials did anything that had the effect of limiting the decedents' ability to use self-help to defend themselves. Sandage v. Bd. of Commissioners of Vanderburgh County, No. 08-1540, 2008 U.S. App. Lexis 24059 (7th Cir.).

Religion

     Prisoner sufficiently stated First Amendment claim and claims under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1(a), by alleging that prison officials confiscated Nation of Islam literature that his religion required him to study and read and that he faced retaliation for practicing that religion and possessing its religious materials. Limiting access to such religious material amounted to imposing a "substantial burden" on the free exercise of religion. Yates v Painter, No. 06-3302, 2009 U.S. App. Lexis 499 (3rd Cir.).

     Court declines to dismiss Muslim prisoner's First Amendment claim and claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc-1(a), since he allegedly was not allowed to participate in weekly prayer services or to fast during Ramadan (by refusing to set aside food for him to eat after sundown and before sunrise), and was not provided with a pork-free diet. Further proceedings were needed to determine whether these restrictions were reasonably related to legitimate penological interests and whether the policies at issue were the least restrictive means of accommodating the prisoner's rights under the RLUIPA. Foster v. Ouachita Correctional Center, Civil Action No. 07-1519, 2008 U.S. Dist. Lexis 92914 (W.D. La.).

Segregation: Administrative

     Pretrial detainee's placement in administrative detention was justified by concerns that he might harm or attempt to tamper with material witnesses in the criminal case against him, and was not imposed for punitive purposes. Jones v. Lieber, Civil Action No. 07-1027, 2008 U.S. Dist. Lexis 76668 (D.D.C.).

Segregation: Disciplinary

     Prisoner's placement in administrative segregation in a penitentiary Special Management Unit (SMU) was not intended to be punitive in nature, but instead to provide him, as a person who had been involved in a gang related disturbance at his prior facility, with additional program opportunities. His placement in the SMU, therefore, did not raise due process issues. His subsequent placement in disciplinary segregation in the SMU was justified by his involvement in "no less" than eighteen disciplinary incidents, and the prisoner failed to show that he faced atypical conditions while so confined. MacKey v. Strada, No. 3:CV-06-015, 2008 U.S. Dist. Lexis 86339 (M.D. Pa.).

Sexual Offender Programs and Notification

     Prisoner dismissed from participation in a sex offender treatment program without a hearing, allegedly resulting in the denial of good time credits, failed to show that he was deprived of due process rights. West v. Olin, No. 08-1168, 2008 U.S. App. Lexis 26764 (10th Cir.).

Voting

     California intermediate appeals court rejects argument that the 14th Amendment's second clause, allowing states to take away voting privileges from citizens for participating in rebellion or other crimes is limited to "felonies at common law." Crime, in the U.S. Constitution, means serious offenses, or, if required by the context, any criminal offense. No historical evidence supported the notion that such disenfranchisement only is constitutionally permissible for acts of rebellion and the crimes of treason, murder, manslaughter, mayhem, rape, arson, burglary, robbery, larceny, and sodomy. Legal Services for Prisoners With Children v. Bowen, A120220, 2009 Cal. App. Lexis 72 (1st Dist.).

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     Policies and Regulations: Searching, Detaining, or Arresting Visitors to Bureau Grounds and Facilities. Federal Bureau of Prisons Program Statement P5510.12 (2008).

     Prisoner Reentry: Legal Barriers to Prisoner Reentry in New Jersey: Employment. New Jersey Institute for Social Justice (NJISJ) (Newark, NJ). Laws and regulations governing the employment of ex-offenders are explained. Information regarding the statute or regulation, conviction or offense, consequences, and remedies are given for employment barriers. Issues and legislation regarding occupational licensing, expungement, and protection from discrimination are also reviewed.

     Sexual Abuse: The National Council on Crime and Delinquency has published a Special Report examining incidences of reported sexual abuse in juvenile correctional facilities collected from national and selected state and local data. This report also provides recommendations on how to "reduce youth violence and sexual assaults in troubled youth corrections systems." (Jan. 30, 2009).

     Sexual Abuse: Your Role: Responding to Sexual Abuse. National Institute of Corrections. e-Learning Center (Aurora, CO) Details Published 2009. 1 computer disk; CD-ROM. This self-paced course will enable participants to "learn an appropriate initial response to sexual abuse or misconduct in a correctional facility . . . whether the assault was observed or reported directly or indirectly." Lessons comprising this training program are: course introduction; the Prison Rape Elimination Act (PREA); sexual abuse and the initial responder; the role of the initial responder; effective communication; the responder's role in the investigation; prevention; and course follow up.

 Reference:

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

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