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Defenses: Settlement Offers

     A correctional officer was entitled to an award of costs against a prisoner who was awarded damages against him in a federal civil rights lawsuit alleging that he was falsely accused of threatening a guard and was thereafter mistreated, including being subjected to frequent strip searches. The prisoner had sued a number of correctional employees, including the officer, and all defendants had offered to settle the lawsuit for a $10,000 lump sum, along with attorneys' fees and costs, making a settlement offer under Federal Rule of Civil Procedure 68. The prisoner rejected that offer, and was later awarded, against the officer alone, an amount of damages less than the amount of the settlement offer--$1 in nominal damages and $500 in punitive damages. While the prisoner, as a prevailing plaintiff, was entitled to attorneys' fees and costs expended before the making of the offer, the officer was entitled to costs incurred after the offer was rejected, in the absence of the plaintiff prisoner achieving greater success. The court ruled that the cost shifting mechanism of Rule 68 applied despite the fact that the settlement offer had been made by multiple defendants, King v. Rivas, #08-1557, 2009 U.S. App. Lexis 1820 (1st Cir.)

Diet

     A correctional officer was not entitled to qualified immunity in a prisoner's lawsuit claiming that she had deprived him of 16 meals over a 23-day period. The court ruled that, if this were true, a jury could find that the officer acted in deliberate indifference to an obvious risk of harm. The obligation to provide prisoners with nutritionally adequate meals is clearly established under existing law. Foster v. Runnels, #06-15719, 554 F.3d 807 (9th Cir. 2009).

Employment Issues

     A former prison guard challenged her firing for being involved in a romantic relationship with a former prisoner. The policy prohibiting such relationships was justified by the "clear and obvious" threat such relationships pose to prison security and order. Poirier v. Massachusetts Dept. of Corr. , #08-1290, 2009 U.S. App. Lexis 3940 (1st Cir.).

First Amendment

     A prisoner had no protected First Amendment right to make disrespectful comments about prison officials in his outgoing mail to them, calling them "evil," "unmerciful," and "inhumane." The court rejected the prisoner's claim that prison officials had unlawfully retaliated against him for his statements, in violation of his First Amendment rights. Huff v. Mahon, #08-6568, 2009 U.S. App. Lexis 3605 (Unpub. 4th Cir.).

     Prisoner stated a viable First Amendment claim in alleging that prison officials retaliated against him for making a statement in support of a wrongful death lawsuit against them. Bridges v. Gilbert, #07-1551, 2009 U.S. App. Lexis 5129 (7th Cir.).

Mail

     The fact that a Kansas regulation banning sexually explicit materials from being mailed to prisoners covered a broader range of materials in its definition of nudity than regulations at other prison systems was not a sufficient basis to invalidate it. Strope v. Collins. #08-3188, 2009 U.S. App. Lexis 3713 (10th Cir.).

Medical Care

      Prison medical personnel did not act with deliberate indifference to an inmate's back injury. They saw him immediately after his fall, and saw him subsequently when he complained of continuing pain, providing medication. Their failure to see him later, during the next six months, was due to the inmate's own failure to attend required sick calls, which was also the basis for the denial of his request for a new mattress, which only a doctor at sick call could order. Lowe v. Kaplan, #08-1622, 2009 U.S. App. Lexis 2672 (Unpub. 7th Cir.).

     Any delay in treatment of a sty under a prisoner's left eye did not rise to the level of deliberate indifference to a serious medical need. There was no evidence that medical personnel knew that the inmate's condition posed a substantial risk to his health. The prisoner claimed that the delay caused the sty to grow, blurring his vision, and requiring multiple surgeries. Slater v. Greenwood, #08-3042, 2009 U.S. App. Lexis 2223 (Unpub. 7th Cir.).

     The failure on a non-medical staff member to take action concerning a prisoner's pre-existing eye condition (a pinhole in the retina of his left eye) did not amount to deliberate indifference but the plaintiff prisoner was entitled to carry out further discovery concerning whether the head of the prison medical unit had knowledge of his complaints but failed to take necessary action. Burks v. Raemish, #07-3041, 2009 U.S. App. Lexis 2640 (Unpub. 7th Cir.).

     Prison nurse was not entitled to qualified immunity in prisoner's lawsuit alleging deliberate indifference to his suffering from heat exhaustion. After she told him to drink fluids, lie down, and rest, his condition allegedly became worse, and he became quadriplegic. If the facts were as the prisoner claimed, including that the nurse delayed examining the prisoner for hours after being informed of his condition, it could be concluded that she knew that serious health risks accompanied excessive heat, dehydration, and heat stroke, but acted with deliberate indifference. Dominguez v. Correctional Med. Servs., #08-1212, 2009 U.S. App. Lexis 2895 (6th Cir.).

Medical Care: Mental Health

     Inmate failed to establish a claim for inadequate medical treatment, as he was examined by a number of mental health providers while incarcerated, as well as being provided with treatment for a number of physical ailments. His medical needs were not "serious," he suffered no long-term effects from any delay in treatment, and he never complained about his treatment while at the prison. Tsakonas v. Cicchi, #07-4115, 2009 U.S. App. Lexis 1856 (3rd Cir.).

Overcrowding

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

     A panel of three federal judges issued a tentative ruling in a case alleging overcrowding in California prisons that could ultimately result in the release of up to 57,000 inmates, or one third of the state's prisoners. Evidence heard, including expert witness testimony, indicated that the state's prison system was operating at almost 200 percent of design capacity in August of 2008, and that a number of potentially dangerous and unconstitutional conditions of confinement exist, including inadequate medical care and mental health services. The court found that this justified the issuance of an order for the reduction of the prison population under the Prison Litigation Reform Act, and issued a tentative ruling so that correctional officials would have adequate notice of the possible release order and be able to plan for it. The release order, if issued, according to news reports, would probably take place over a two to three year time period. Coleman v. Schwarzenegger, #Civ. S-90-0520, (3-judge court. U.S. Dist. E.D. and N.D. Cal. 2009).

     The Florida Supreme Court has issued a public reprimand for St. Lucie County Court Judge Clifford Barnes, who filed a lawsuit seeking to change the way county authorities handled jail overcrowding. His actions were found to violate principles of judicial impartiality and to have cause disrepute to the judicial system. His petition for a writ of mandamus (subsequently withdrawn) claimed that the county failed to give arrested detainees "a meaningful first appearance hearing," so that they remained in jail pending trial, resulting in overcrowding. Inquiry Concerning Judge (Barnes), #05-437, No. SC06-2119 A (Fla. 2009).

Prison and Jail Conditions: General

     When the only relief sought by a plaintiff prisoner was an award of money damages against a defendant commissioner of a correctional facility, and he failed to allege that this defendant was personally responsible for the complained of conditions of confinement, the lawsuit was properly dismissed. Pettus v. Morgenthau, #070395, 554 F.3d 293 (2nd Cir. 2009).

Prisoner Assault: By Officer

     Trial court improperly issued summary judgment to defendants in pretrial detainee's lawsuit claiming that he was subjected to excessive force at a county detention center. The wheelchair reliant detainee, who has an amputated leg, claimed that he was held down, kicked, lifted out of his wheelchair, and carried to his cell by his jaw after failing to comply with an order to leave a shower, and that he did not threaten or assault officers. If true, a reasonable jury could find that excessive force was used. Roby v. McCoy, #07-3647, 2009 U.S. App. Lexis 3677 (Unpub. 8th Cir.).

     A trial court did not act erroneously in dismissing two claims of excessive force filed by a former inmate, who subsequently died. Nothing in the materials filed on the first claim supported an inference that the plaintiff had been threatened with personal injury or assaulted by a correctional officer, while the second claim merely asserted that "excessive" force was used, but the evidence showed that the officer did not act in a malicious or sadistic manner, and any injuries suffer by the prison were minor and limited to shortness of breath for a few minutes. Wright v. Goord, #06-1728, 2009 U.S. App. Lexis 1951 (2nd Cir.).

Prisoner Restraint

     Further proceedings were ordered on prisoner's claim that his Eighth Amendment rights were violated when he was continuously restrained in ambulatory restraints that allegedly prevented him from lying flat on his bed, bathing, or cleaning himself in a proper manner after using the toilet. The trial court improperly ruled for the defendants based only on written discovery materials, which failed to adequately address the subjective mental state of the defendant correctional employees. There were also factual issues as to whether the prisoner's alleged failure to timely file a grievance concerning the issue was excused because his restraint, followed by his 30 days of solitary confinement after his release from the restraints prevented him from filing a grievance within 20 days. Womack v. Smith, #08-2229, 2009 U.S. App. Lexis 2840 (3rd Cir. Unpub.).

Prisoner Suicide

     A prisoner who claimed that he asked for help for his suicidal condition stated a viable Eighth Amendment claim. He asserted that he asked to be placed on observation status because of suicidal thoughts, that an officer gave him a razor after he expressed these thoughts, and that medical treatment was not provided until a week after he cut himself 133 times with the razor. He also claimed that "cries for help" were not responded to until he actually tried to hang himself. If true, the actions of a crisis intervention worker, a nurse, and the corrections officer who allegedly gave the prisoner the razor could be found to constitute deliberate indifference to the risk of suicide. Vann v. Vandenbrook, #09-cv-007, 2009 U.S. Dist. Lexis 10195 (W.D. Wis.).

     There were genuine issues of fact as to whether prison staff members acted with deliberate indifference to the risk that an inmate would hurt himself, resulting in his death in his cell from asphyxia from hanging himself while trying to feign suicide. Wilson v. Taylor, Civ. #05-821, 2009 U.S. Dist. Lexis 11104 (D. Del.).

     Detention center personnel were entitled to qualified immunity in a lawsuit concerning the death of a woman brought there following a minor auto collision who then used a television cable to hang herself after she was then arrested on an outstanding warrant. Prior to her death, the detainee had not exhibited any suicidal tendencies to put the defendants on notice that she might harm herself. Prestenbach v. LaFourche Parish Detention Center, #08-4109, 2009 U.S. Dist. Lexis 14784 (E.D. La.).

Prisoner Transfer

     Even if, arguably, California law previously gave an inmate a protected liberty interest against transfer to an out-of-state facility, that interest was abrogated by the governor's "Prison Overcrowding State of Emergency" proclamation in October of 2006, and a subsequent amendment to the state statute at issue. The court therefore dismissed the prisoner's challenge to his transfer to an out-of-state facility, which was initiated in May of 2008. Thornton v. Schwarzenegger, #Civ. 08-1260, 2009 U.S. Dist. Lexis 8496 (E.D. Cal.).

Religion

     Because a Wiccan clergyman was not an inmate, but merely a California taxpayer and an applicant seeking employment with California prisons, he did not have standing to challenge the constitutionality of a "Five Faiths Policy" under which the hiring of paid chaplains was allegedly limited to ministers of five major established religions. Inmates of the Wiccan faith, however, would have such standing, should they sue, and could claim that the policy violated both their right to exercise their religion and prohibitions on the "establishment of religion." McCollum v. California, #C 04-03339, 2009 U.S. Dist. Lexis 11154 (N.D. Cal.).

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

     It did not violate the religious freedom rights of a Wiccan inmate to enforce a policy requiring inmates to check out tarot cards from a prison chaplain and forbidding the keeping of such cards in inmate cells. The prisoner stated that he used the cards for religious purposes, and claimed that the policy violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. § 2000cc-1(a), by preventing spontaneous tarot card readings. The policy was justified by security concerns, including preventing the use of the cards for gambling, preventing the exchange of card readings for goods or services, preventing the placement of gang symbols on the cards "which could be used to promote or defame gangs, leading to violence," and to prevent "psychological control, as some prisoners may believe that tarot card-holders have special powers." Singson v. Norris, #08-1570, 2009 U.S. App. Lexis 1971 (8th Cir.).

     A prisoner's lawsuit claiming violation of his right to exercise his religion was properly dismissed. He failed to assert that the practices prohibited, such as the use of a musical instrument or visits by clergy, were required by his religion. Additionally, he was, in fact, allowed to practice his Jewish religion daily, using religious articles he was allowed to keep, as well as on religious holy days. Weinberger v. Grimes, #07-6461, 2009 U.S. App. Lexis 2693 (Unpub. 6th Cir.).

     Federal appeals court finds that certain claims for injunctive relief were moot when Texas prison officials stated that they had voluntarily stopped barring cell-restricted prisoners from attending religious services. Claims concerning alleged restrictive policies on chapel use for congregational worship were overly restrictive, in violation of federal and state law, however, required further proceedings. Sossamon v. Texas, #07-50632, 2009 U.S. App. Lexis 3701 (5th Cir.).

Segregation: Administrative

     In a prisoner's lawsuit claiming that he was kept in administrative segregation for an "indeterminate" time without required review hearings, an appeals court found that, because of the sparse facts in the record, it was hard to determine exactly when the prisoner's segregation became so prolonged and restrictive to put him on notice, for purposes of the statute of limitations, that he had a possible claim to assert, so that dismissal on statute of limitations grounds was improper. Additionally, the prisoner's claim that he tried to kill himself satisfied any requirement of physical injury for an Eighth Amendment claim. The prisoner failed to properly show a violation of 42 U.S.C. Sec. 1981, which prohibits racial discrimination in the making of contracts, or of 42 U.S.C. Sec 1985(3) and 1986, since there was no evidence that the defendants conspired to violate his constitutional rights. He could proceed on his Eighth Amendment claims under 42 U.S.C. Sec. 1983, as well as on claims concerning the denial of religious freedom, since there was no information in the record concerning security concerns to justify preventing the prisoner from attending services, nor was there information as to whether individual religious counseling was available while he was in administrative segregation. Arauz v. Bell, #08-5186, 2009 U.S. App. Lexis 1370 (Unpub. 6th Cir.).

Sexual Offenders

     A number of persons who committed or attempted kidnapping or unlawful confinement offenses involving children, and who were not the child victims' parents, challenged the requirement that they register as sex offenders under New York state law, claiming that this was a misleading label, as they had not engaged in sexual abuse. The highest court in New York rejected these arguments, holding that the state legislature could rationally conclude that, in the "large majority" of instances where someone kidnapped or unlawfully imprisoned someone else's children, the victims were sexually molested or in danger of such molestation, and therefore could direct that such offenders be conclusively be classified as sexual offenders, without violating any constitutional right. People v. Knox, #9, 2009 N.Y. Lexis 16.

Smoking

     When federal prison officials charged with enforcing a non-smoking policy concededly did not do so, the federal government was not entitled to claim the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) in a lawsuit brought by a prisoner for exposure to an excessive amount of environmental tobacco smoke and failure to properly ventilate a federal prison. Summary judgment was still granted for the government, however, since the prisoner failed to show an actual injury or a cause and effect relationship between the officials' alleged negligence and an alleged injury. Abuhouran v. U.S.A., #07-2465, 2009 U.S. Dist. Lexis 8623 (E.D. Pa.).

Strip Searches: Prisoners

     Strip search procedures in county jails violated constitutional requirements when arrestees who were accused of non-indictable offenses were allegedly strip searched without any articulated reasonable suspicion of possession of drugs, contraband, or weapons. This was true even when, in one jail, the searches were called a "visual observation," or when, in a second jail, the written policy on such searches complied, facially, with the state of New Jersey's rules for strip searches. Such searches at both jails required taking off all clothes, observation of the detainee's nude body, and a shower under supervision. Searches of this kind, without reasonable suspicion, were unconstitutional under these circumstances. The court denied injunctive relief, however, since the arrestees failed to show that they were likely to be strip searched in this manner in the future. Florence v. County of Burlington, Civil Action #05-3619, 2009 U.S. Dist. Lexis 7923 (D.N.J.).

Visitation

     Restrictions on the visitation rights of a convicted sex offender did not violate his due process, equal protection, or Eighth Amendment rights. His daughter and his niece were removed from his visitor's list once on the recommendation of a prison social worker who believed that he threatened these children's safety, but they were restored to his visitor's list when he agreed to enter a sex offender's treatment program. They were both again barred from visiting when the prisoner subsequently admitted to having raped two children. The appeals court found this visitation policy rationally related to legitimate penological interests, and also noted that the plaintiff prisoner failed to show that other similarly situated prisoners were allowed visits with children. Stojanovic v. Humphreys, #08-1827, 2009 U.S. App. Lexis 2169 (Unpub. 7th Cir.).

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 Reference:

     Federal Prisons: Federal Bureau of Prisons Operations Memorandum 002-2009 (Jan. 24, 2009) Bureau Mandatory Training Standards.

     Female Prisoners: Handbook for Prison Managers and Policymakers on Women and Imprisonment by Atabay, Tomris, United Nations. Office on Drugs and Crime (Vienna, Austria) Published 2008. 117 pages. "The main focus of th[is] handbook is female prisoners and guidance on the components of a gender-sensitive approach to prison management, taking into account the typical background of female prisoners and their special needs as women in prison" (p. 1). Sections following an introduction include: the special needs of female prisoners; management of women's prisons; reducing the female prison population by reforming legislation and practice - suggested measures; management of women's prisons -- key recommendations; and reducing the female prison population -- key recommendations. Accession Number: 023592, National Institute of Corrections.

     Prisoner Suicide: Juvenile Suicide in Confinement, a National Survey, U.S. Dept. of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Feb. 2009).

     Statistics: One in 31: The Long Reach of American Corrections, a report by the Pew Center on the States (2009) indicates that the number of people on probation or parole tripled between 1982 and 2007 to over 5 million. Including jail and prison inmates, the total population of the U.S. corrections system now exceeds 7.3 million - one of every 31 adults. Key findings include: • One in 31 adults in America is in prison or jail, or on probation or parole. Twenty-five years ago, the rate was 1 in 77. • Overall, two-thirds of offenders are in the community, not behind bars. 1 in 45 adults is on probation or parole and 1 in 100 is in prison or jail. The proportion of offenders behind bars versus in the community has changed very little over the past 25 years, despite the addition of 1.1 million prison beds. • Correctional control rates are highly concentrated by race and geography: 1 in 11 black adults (9.2 percent) versus 1 in 27 Hispanic adults (3.7 percent) and 1 in 45 white adults (2.2 percent); 1 in 18 men (5.5 percent) versus 1 in 89 women (1.1 percent). The rates can be extremely high in certain neighborhoods. In one block-group of Detroit’s East Side, for example, 1 in 7 adult men (14.3 percent) is under correctional control. • Georgia, where 1 in 13 adults is behind bars or under community supervision, leads the top five states that also include Idaho, Texas, Massachusetts, Ohio and the District of Columbia. The report also analyzes the cost of current sentencing and corrections policies. The National Association of State Budget Officers estimates that states spent a record $51.7 billion on corrections in FY2008, or 1 in every 15 general fund dollars. Adding local, federal and other funding brings the national correctional spending total to $68 billion.

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

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