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Access to Courts/Legal Info

     Prisoner failed to establish, in his filed complaint, a valid claim that prison employees' confiscation of his legal materials and receipts denied him constitutionally protected access to the courts with respect to his Federal Tort Claims Act cause of action. The appeals court upheld the dismissal of the lawsuit, finding that the prisoner had not alleged that he suffered an actual injury from the employees' actions. Walker v. Zenk, #08-1570, 2009 U.S. App. Lexis 7228 (Unpub. 3rd Cir.).

     Prisoner failed to show how denying him certain legal materials defeated his attempt to pursue a non-frivolous legal claim or how the individual defendants were involved in the alleged denial. The appeals court also held that he could not seek relief for alleged negligence resulting in the destruction or confiscation of his property as a violation of his civil rights under 42 U.S.C. Sec. 1983. Also rejected were his claims that his rights were violated by placement in what he called a "punishment cell with AIDS inmates," or placement in administrative segregation while awaiting a disciplinary hearing. Doyle v. Cella, #08-1398, 2009 U.S. App. Lexis 7322 (Unpub. 10th Cir.).

Defenses: Eleventh Amendment Immunity

     A medical service that provided care to prisoners failed to show that it was an arm of the state of Delaware for purposes of asserting Eleventh Amendment immunity from a lawsuit for damages arising out of the successful suicide of a prisoner with psychiatric problems after he was removed from suicide watch and placed on a less restrictive watch status. The medical service was a corporate entity, was not exempt from state taxation, and there was no showing that a judgment against it would be paid out of state funds. The defendant also failed to show that it was entitled to state law tort immunity. Lamb v. Taylor, #08-324, 2009 U.S. Dist. Lexis 26853 (D. Del.).

Disability Discrimination: Prisoners

     A prisoner's allegation that correctional officials knowingly refused to provide treatment or to investigate his request for treatment, specifically ophthalmic evaluation and cataract surgery, failed to establish a claim for disability discrimination. His argument that an allegedly resulting disability was the loss of vision in his right eye did not show that the defendants denied him care on the basis of a disability. The prisoner also failed to show that the defendants acted with deliberate indifference to his serious medical needs, or that they acted merely in order to save the cost of treatment, as opposed to acting on a medical finding concerning the stability of his eye condition. Stevenson v. Pramstaller, #07-cv-14040, 2009 U.S. Dist. Lexis 25495 (E.D. Mich.).

Drug Abuse and Drug Screening

     A federal prisoner failed to show that he was improperly denied the right to participate in a residential drug abuse program which would have made him eligible for a discretionary one-year sentence reduction. While he was convicted of cocaine possession with intent to distribute, he was not diagnosed as having a substance abuse problem making him eligible for the treatment program, as a doctor conducting an evaluation found that he had only tried cocaine once and marijuana once. Mora-Meraz v. Thomas, #08-709, 2009 U.S. Dist. Lexis 27771 (D. Ore.).

Federal Tort Claims Act

     In a prisoner's lawsuit under the Federal Tort Claims Act concerning the alleged loss of his personal property, he failed to adequately establish a right to recover damages from either the U.S government or a delivery service, even if all his allegations were true. Johnson v. U.S.A., #08-20369, 2009 U.S. App. Lexis 7977 (Unpub. 5th Cir.).

Foreign Prisoners

     A Colombian citizen in a Georgia prison could not pursue, under the Alien Tort Statute, 28 US.C. Sec. 1350, a claim for violation of his rights under Article 36 of the Vienna Convention on Consular Relations (VCCR) concerning the right to have the consulate of his country notified of his incarceration. The fact that he sued under the Alien Tort Statute rather than under 42 U.S.C. Sec. 1983 did not alter the result. In the prior Gandara v. Bennett, #06-16088, 528 F.3d 823 (11th Cir. 2008) decision, the court held that the VCCR did not create rights or remedies enforceable through a § 1983 lawsuit. Lopez v. Wallace, #08-15307, 2009 U.S. App. Lexis 8721 (Unpub. 11th Cir.).

Inmate Funds

     A prison rule requiring inmates to put 10% of certain funds into a savings account to be paid to them on release was justified by a legitimate correctional interest in easing their transition back into society. The trial court improperly rejected, however, the prisoner's challenge to a ban on sexually explicit materials when he had standing to challenge the rule since he had such materials, which he mailed to the court to comply with a deadline to dispose of them, and there was an indication that he would have been subject to discipline had he not done so. Sperry v. Werholtz, #08-3274, 2009 U.S. App. Lexis 7931 (Unpub. 10th Cir.).

Inmate Property

     Prisoner's complaint concerning the confiscation of his electric razor failed to establish a violation of due process, his right to privacy, the Fourth Amendment, or deliberate indifference to a serious medical need. He failed to allege any facts about the supposed seriousness of his skin condition or why an electric razor was medically needed in light of that condition. There were adequate post-deprivation remedies for the loss of property under prison grievance and internal review procedures. Barr v. Knauer, #08-3660, 2009 U.S. App. Lexis 7766 (Unpub. 3rd Cir.).

Mail

     Prison regulations providing for censorship of sexually explicit material and materials promoting violence were not facially violative of the First Amendment, as they were intended to promote legitimate governmental interests. A prisoner could, however, pursue his claim that officials improperly applied the regulations to exclude publications that were not inflammatory. He could also pursue claims concerning a prohibition on publications because they contained posters, stickers, or other free items, since the defendant officials failed to state their justification for this prohibition, and the prisoner further claimed that it was unevenly applied, leading to improper content-based decisions. The defendants also failed to show why the suggested alternative of removing these items from the publications would be burdensome. Dean v. Bowersox; #08-1558, 2009 U.S. App. Lexis 8477 (Unpub. 8th Cir.).

Medical Care

     While the alleged denial of medical treatment for gas did not involve a serious medical condition, a prisoner's argument that lack of treatment for dry skin and eczema resulted in skin that cracked and bled did show possible deliberate indifference to a serious problem. The trial court improperly analyzed a claim concerning the unauthorized charging of co-payments for medications under the Eighth Amendment instead of the Fourteenth Amendment's due process clause, requiring further proceedings. McKeithan v. Beard, #08-1746, 2009 U.S. App. Lexis 7308 (Unpub. 3rd Cir.).

Prison & Jail Conditions

     A prisoner failed to show that his Eighth Amendment rights were violated by conditions in isolation, where he was placed for disciplinary reasons. While he had the "barest" of clothing, there was no indication that this or the temperature of his cell endangered his health or safety. There was evidence to show that he received adequate shelter, medical care, and nutrition while in isolation. Guinn v. Rispoli, #08-4281, 2009 U.S. App. Lexis 8566 (Unpub. 3rd Cir.).

     A civilly committed person sufficiently alleged that conditions in the facility where he was confined were inhumane to proceed with his federal civil rights case. Specifically, he alleged that staff members told him not to drink the facility's water where he was confined, as it was poisonous, and, unlike water provided to the general population, did not meet Environmental Protection Agency standards. Other claims involved cell temperatures reaching as high as 110 degrees, causing him to vomit blood, and permanent injuries caused by insect bites and stings. White v. Monohan, #08-2567, 2009 U.S. App. Lexis 8205 (Unpub. 7th Cir.).

Prisoner Assault: By Inmate

     A prisoner could pursue claims against an officer who allegedly arranged for and paid members of a prison "clique" to attack him after the officer was told that the prisoner had reported him for taking payments from prisoners. He had no claim, however, against another officer who told the first officer about his reporting, since that officer was not shown to have had knowledge that the information would lead to retaliatory action. Davis v. Tucker, #08-40157, 2009 U.S. App. Lexis 7288 (Unpub. 5th Cir.).

Prisoner Assault: By Officers

     A prisoner could proceed with his claims that a captain slammed his head and face into a concrete sidewalk, rendering him unconscious. If the prisoner's version of the incident were believed, it established the excessive use of force. On claims against the captain in his official capacity and against the correctional center, the defendants were entitled to Eleventh Amendment immunity because these were essentially claims against the State of Louisiana. Cain v. White, #08-1015, 2009 U.S. Dist. Lexis 23322 (W.D. La.).

Prisoner Transportation

     A prisoner out on bond was arrested on other charges, and, while in custody, was scheduled to appear in court on the first case. He was taken to the courthouse, but claimed that he was later charged with failure to appear because a deputy and a sergeant refused to transport him to the courtroom. His federal civil rights claim over this was properly dismissed, as the facts showed, at most, negligence in failing to properly determine that he should be taken to the courtroom for his hearing. This did not show a violation of civil rights or denial of access to the courts. Mills v. Connors, #07-1524, 2009 U.S. App. Lexis 7481 (Unpub. 10th Cir.).

     A prisoner who was taken to a medical center for an appointment was injured as she stepped on a stepstool to exit from a transport van after having been restrained during the transport process with leg shackles and belly chains. She was thrown forward while exiting and landed on her face on the ground. Damages of $62,125 were awarded for a shoulder surgery, physical therapy, future lost wages, a permanent scar, and pain and suffering. Stewart v. Ohio Dept. of Rehabilitation and Correction, #2005-05591, 2009 Ohio Misc. Lexis 21 (Ohio Ct. of Claims).

Religion

     A prisoner with a number of misconduct charges pending was transferred to a facility that did not serve kosher meals and placed in temporary segregation there. When the warden learned that he was refusing to eat non-kosher meals, she had him transferred to another facility where he could receive them. The warden was entitled to summary judgment, as there was no evidence that she knew of the problem earlier, and it appeared that she acted to correct it as soon as she did know. Cardinal v. Metrish, #08-1562, 2009 U.S. App. Lexis 8689 (6th Cir.).

     Isolated instances of alleged anti-Semitic conduct against an Orthodox Jewish prisoner did not show that he was not given an equal opportunity to practice his religion with that provided to prisoners of other religions. He failed to show that his right to exercise his religion was substantially burdened. Gallagher v. Shelton, #03-3454, 2009 U.S. Dist. Lexis 27778 (D. Kan.).

     A prisoner who belongs to an organization that he "adamantly" stated was not a religion, but a "culture and way of life," was denied his request to use a correctional facility's chapel for weekly gatherings and special celebrations. This did not deny his right to religious freedom. Additionally, the defendants were entitled to qualified immunity, based on the inmate's own argument that his organization was not a religion. Harrison v. Watts, #1:06cv1061, 2009 U.S. Dist. Lexis 26009 (E.D. Va.). Editor's Note: The group involved was the Nation of Gods and Earths ("NOGE"), which is otherwise known as the "Five Percenters." This was described by the plaintiff as a "God-centered Culture/Way of Life rooted in Supreme Mathematics and the Teachings of Allah." The group purportedly teaches, according to the plaintiff, that the "Black man is God and the White man is the grafted devil," that its members or adherents do not "accept, believe in, pray to, nor worship a mystery, spook, spirit, or invisible God," and that "each Black man is his own god."

     A Corrections officer issued a misbehavior report when a prisoner refused to obey orders given to him and other mess hall workers to stop praying. The officer was entitled to qualified immunity in the subsequent religious freedom lawsuit by the prisoner, as it was not clearly established that a prisoner had a right to pray at his work assignment. Additionally, a prison directive restricted group prayer to certain designated locations. Sweeper v. Taylor, #9:06-CV-379, 2009 U.S. Dist. Lexis 27318 (N.D.N.Y.).

    Further proceedings were ordered on a prisoner's claim that his given name was religiously offensive to him and that the prison's action in requiring him to use that name forced him to either violate his religious beliefs or cease accessing his inmate fund account. Al-Amin v. Shear, #08-7681, 2009 U.S. App. Lexis 7620 (Unpub. 4th Cir.).

Segregation: Administrative

     A prisoner's placement in administrative segregation did not violate his due process rights when he was given periodic reviews as to whether he should remain there. The court rejected a First Amendment claim, finding evidence that the placement was due to the prisoner's misconduct. But a reasonable jury could have found that the conditions in segregation violated the Eighth Amendment based on the actions of other inmates who allegedly threw body fluids and feces and put feces in the air vents of the unit. Further proceedings were therefore ordered on Eighth Amendment claims. McKeithan v. Beard, #08-1746, 2009 U.S. App. Lexis 7308 (Unpub. 3rd Cir.).

Sex Offender Programs and Notification

     A prisoner classified as a sex offender after he was convicted of burglary claimed that his classification was improper and that he was improperly denied parole because he refused to participate in a sex offender treatment program. The court found that the prisoner had a protected liberty interest in parole under the West Virginia state constitution, and there was a genuine issue of fact as to whether the treatment program he was asked to complete was severe enough to exceed his sentence. He presented a viable claim as to whether prison officials failed to correct errors they had caused in his records. Gilmore v. Bostic, #2:08-cv -326, 2009 U.S. Dist. Lexis 25682 (S.D.W.Va.).

Sexual Assault

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

     A jailer was not entitled to qualified immunity in a lawsuit seeking to impose liability for a male inmate's alleged rape of a female inmate at the jail. The jailer knew that he violated a jail policy by allowing a male inmate to remain closed in a female detainee's cell for ten minutes, and that the purpose of the policy was to prevent sexual assaults. Hostetler v. Green, #08-7029, 2009 U.S. App. Lexis 7965 (Unpub 10th Cir.).

Smoking

     Supervisory personnel could not be held liable for failing to see that tobacco using prisoners were placed in separate housing from other prisoners when there was no evidence of their personal participation in or encouragement of this practice. They could not be held vicariously liable for the alleged actions of subordinate personnel. The prisoner was entitled to proceed, however, on claims against non-supervisory personnel. Carter v. Wilkinson, #2:05-cv-0380, 2009 U.S. Dist. Lexis 27649 (S.D. Ohio).

Strip Search: Prisoners

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

     Because there was no clearly established law that a strip search of a female prisoner by male officers necessarily violates the Eighth Amendment, defendant officers were entitled to qualified immunity in a lawsuit brought over one such search. Graham v. Van Dycke, #08-3193, 2009 U.S. App. Lexis 6819 (Unpub. 10th Cir.).

Visitation

     A prisoner failed a drug test and served time in punitive segregation as a result. Six months later, when he had a visitor, he was placed in a non-physical contact booth during the visit. The court found that correctional officials showed no relationship between the failed drug test and the indefinite revocation of the prisoner's receipt of contact visits. There also was no indication that there was any plan to engage, during such visits, in conduct endangering facility safety or security. The prisoner also received no notice of the decision to revoke contact visiting privileges. His full visitation privileges were restored because the action taken was arbitrary and capricious. Rivera v. N.Y. City Dept. of Corrections, #340787/08, 2009 N.Y. Misc. Lexis 696 (Sup. Bronx County).

Work/Education/Recreation Programs

     A trial court acted erroneously in dismissing a prisoner's claim that some prison employees forced him to work in the prison laundry doing work that violated his medical restrictions and aggravating existing injuries. He also could pursue claims that a prison doctor refused to give him a note excusing him from performing the work as a result of pressure from other employees. Claims for verbal harassment, however, were not valid federal civil rights claims. Reese v. Skinner, #08-40490, 2009 U.S. App. Lexis 8471 (Unpub. 5th Cir.).

     The evidence showed that the plaintiff prisoner, who claimed he was subjected to unsafe working conditions in the rubbermill room of the prison's shoe shop, was actually given and told to wear a hooded protective jump suit, along with insulated gloves, goggles and a face mask, as well as being given training in the use of the rubbermill and the rubber-making process. Reasonable attempts to obtain an upgrade for his face mask were made when he complained that it was providing inadequate protection. The defendants also tried to lessen problems with the workplace ventilation system. Given these facts, the defendants could not be said to have acted with "disregard" for prisoners' health and safety. At most, there may have been some negligence in addressing these issues, which was insufficient to show an Eighth Amendment violation. Heffran v. Mellinger, #07-4077, 2009 U.S. App. Lexis 10099 Unpub. 3rd Cir.).

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     Military Detainee Interrogations: Inquiry into the Treatment of Detainees in U.S. Custody (U.S. Senate Armed Servs. Committee, Apr. 22, 2009). The Senate Armed Services Committee released a report from last November revealing opposition by a number of military lawyers and commanders to the Bush administration's efforts to redefine the limits of military interrogation practices used by the U.S. military in Iraq and Afghanistan.

     Military Detainee Interrogations: The Obama administration has released Bush era legal memoranda relating to techniques that may be used in the interrogation of high-value al Qaeda detainees.

     Pre-Trial Detainees: Analyzing a Pretrial Detainee's § 1983 Claims Under the Deliberate Indifference Standard Amounts to Punishment of the Detainee, Leslie B. Elkins 4 Seventh Circuit Rev. 91 (2008)

     Technology: Using Technology to Make Prisons and Jails Safer, by Phillip Bulman, NIJ Journal Issue 262 (National Institute of Justice, March 2009).

     Training: Prison Staffing Analysis: A Training Manual With Staffing Considerations for Special Populations, National Institute of Corrections. (2009).

 Reference:

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

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