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Diet

     A correctional services company showed that it "substantially performed" its obligations under a consent decree to provide kosher meals during the 2006 and 2007 Jewish Passover holidays, serving the plaintiff inmate 23 out of 25 required meals. The appeals court, therefore, upheld a trial court decision in favor of the company. Miles v. Aramark Correctional Service, Inc., #07-3622, 2009 U.S. App. Lexis 7233 (Unpub. 3rd Cir.).

     A prisoner enrolled in a Bureau of Prisons religious diet program, providing special meals to inmates whose religious beliefs prevented them from eating the food generally offered at the prison. He was suspended from the program, however, on three occasions, after he was seen buying and eating non-kosher food, or trading the kosher meal he was provided for a non-kosher meal. A federal appeals court upheld summary judgment in favor of the Bureau of Prisons on the prisoner's claim that these suspensions violated his right to practice his religion. The court noted that the prisoner conceded that he broke the rules of the religious diet program by buying non-kosher food from the commissary, and the court found that those rules did not "substantially burden" religious freedom. Daly v. Davis, #08-2046, 2009 U.S. App. Lexis 6222 (Unpub. 7th Cir.).

Disability Discrimination: Prisoners

     Proof that an inmate had a "raspy" voice was insufficient to show that he had a disability for purposes of a disability discrimination claim. While his "raspy" voice could impact the volume of his speech, there was no indication that he was unable to articulate his words, to communicate with others, or to make himself understood. The court also rejected his claim that prison employees were deliberately indifferent to his serious medical needs. The defendants attempted to accommodate his need to avoid environmental tobacco smoke (ETS), and the prisoner failed to show any intentional refusal to address the issue. Pritchett v. Ellers, #08-1669, 2009 U.S. App. Lexis 9381 (Unpub. 3rd Cir.).

First Amendment

     A prisoner failed to show a causal connection between his transfer, his loss of his bed after he was taken to a hospital for treatment, and his filing of a grievance over an incident in which he was allegedly "yanked" out of a shower and "paraded" naked back to his cell. The court therefore rejected his First Amendment retaliation claim. The court also found that the defendant correctional employees were entitled to qualified immunity on the prisoner's claim that the shower incident violate his Eighth Amendment rights, as he had no clearly established right not to have his naked body exposed in prison. Solan v. Ranck, #07-4571, 2009 U.S. App. Lexis 9987 (Unpub. 3rd Cir.).

     An affidavit from another prisoner, which was the only evidence a plaintiff inmate showed of retaliation against him for filing a grievance, actually showed that officials were motivated to place him in administrative segregation by his dangerousness, not his grievance filing. They would have taken the same actions even if he had never filed the grievance, based on his gang affiliation and his long history of violent and abusive behavior. Denying the prisoner newspapers did not violate the First Amendment, but was an acceptable policy decision for officials trying to achieve legitimate goals. The court also rejected the claim that the prisoner's rights were violated by him being forced to wear a paper gown after he was found casting a string between cells to try to pass notes and other items. Soto v. Bertrand, #08-2540, 2009 U.S. App. Lexis 9901 (Unpub. 7th Cir.).

Frivolous Lawsuits

     A prisoner's civil rights and disability discrimination complaint was dismissed as frivolous. Despite being given two opportunities to amend his complaint to provide a short and plain statement of the basis of his causes of action, he failed to remedy the confusing and lengthy nature of what he presented. His third version of the complaint was over 200 pages and was "mostly unintelligible." The court also found that another, independent, basis for dismissing the prisoner's lawsuit was that he misrepresented his past litigation history, stating that he had not filed any other lawsuits in federal court related to his incarceration, when actually he had filed at least eight other such lawsuits. Bell v. Lasaceli, #08-CV-0278A, 2009 U.S. Dist. Lexis 32416 (W.D.N.Y.).

Inmate Funds

     Rejecting a prisoner's challenge to prison commissary prices, which he claimed violated his rights to due process and equal protection, as well as the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. Sec. 553, a court stated that prisoners do not have a constitutional right to pay fixed prices for food and other commissary items. The prisoner's challenge to the setting of prison phone rates was barred by the fact that he had litigated the same issue in an earlier federal lawsuit. Harrison v. Federal Bureau of Prisons, #07-1543, 2009 U.S. Dist. Lexis 37394 (D.D.C.).

Mail

     A prisoner claiming that prison officials refused to allow him to send out legal mail established nothing other than that they determined that certain mail he wished to send did not qualify as legal mail under existing regulations, and rejected other items he wished to send because he failed to comply with those regulations. He failed to show that he suffered any prejudice from the rejection of the mail, so that his claim for denial of access to the courts was not viable. Finally, prison officials were entitled to qualified immunity on the prisoner's claim that they erroneously determined that his outgoing mail did not qualify for free postage, in the absence of any "invidious intent." Wesolowski v. Washburn, #03-CV-6424, 2009 U.S. Dist. Lexis 42297 (W.D.N.Y.).

     A prison policy that only allowed the receipt of books that were sent directly from a publisher or that had a publisher's invoice enclosed was a legitimate one, aimed at preventing the introduction of contraband into the facility. The plaintiff prisoner was denied the receipt of two religious books sent to him by his sister because there was no publisher's invoice enclosed, not because of any intent to interfere with his religious freedom rights. Even though there was an eight-month delay in him receiving the books, prison employees did deliver the books to him as soon as it was determined that the publisher's invoices were received. Additionally, the prisoner had access to similar religious books through the prison's library. Heleva v. Kramer, #08-3408, 2009 U.S. App. Lexis 11021 (Unpub. 3rd Cir.).

Medical Care

     While a prisoner claimed that he was provided with inadequate treatment for his diagnosed chronic pain syndrome, correctional officials stated that he misrepresented that he was HIV positive and had an ulcer. His medical records also showed drug-seeking behavior and indicated that he had received medical treatment, including referral to specialists and medication, and that the prisoner himself requested being put on full activity status. Evidence contained in a videotape showed that he was "embellishing" his pain and malingering. Additionally, considering that tests showed that the prisoner was not HIV-positive, no jury could reasonably find that doctors acted with deliberate indifference in canceling HIV-related medications and accommodations. Fitzgerald v. Greer, #08-2627, 2009 U.S. App. Lexis 9904 (Unpub. 7th Cir.).

     In a federal prisoner's medical malpractice lawsuit under the Federal Tort Claims Act, a doctor's letter submitted did not meet the court's order that the prisoner submit a certificate of medical merit to comply with Pennsylvania law. The doctor's letter concerning the prisoner's heart condition did not state that the treatment provided fell outside the scope of acceptable professional standards and caused harm, and only stated that the case merited taking a "closer" look. The lawsuit was dismissed. Booker v. U.S.A., #1:CV-07-1960, 2009 U.S. Dist. Lexis 27152 (M.D. Pa.).

     Overturning summary judgment for federal prison officials in a lawsuit under the Federal Tort Claims Act, a federal appeals court noted that a severe asthma attack can be life-threatening like a heart attack, so that further proceedings were required on the prisoner's claim that officials were negligent when he had an asthma attack. There were genuine issues of fact as to whether the asthma attack was severe enough to show physical injuries as required by 28 U.S.C.S. § 1346(b)(2) and 42 U.S.C.S. § 1997e(e) for recovery for negligently caused emotional injuries. Perez v. U.S.A., #08-2807, 2009 U.S. App. Lexis 11071 (Unpub. 3rd Cir.)

Prison Litigation Reform Act: "Three Strikes" Rule

     A prisoner was barred, under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915, from proceeding as a pauper with his lawsuit claiming that guards threatened his life, tampered with his food, denied him medical treatment, heat, and running water, and put feces and urine in his cell when he was housed in quarantine. The prisoner also alleged that prison officials encouraged other prisoners to attack him. The plaintiff brought three or more prior lawsuits that were dismissed as frivolous, and he did not qualify for an exception to the "three strikes" rule, since he was not facing an imminent danger of serious physical injury. The appeals court found that the prisoner engaged in a pattern of repeatedly filing frivolous lawsuits and repeatedly claiming the "imminent danger" exception to try to evade the "three strikes" rule. Brown v. City of Philadelphia, #08-2419, 2009 U.S. App. Lexis 10790 (3rd Cir.).

Prisoner Assault: By Officers

     Officers' statements that one of them used "distraction strikes" were in conflict with a prisoner's claim that he received a direct blow from a fist and medical records that also stated that. A videotape of the incident entered into evidence failed to resolve this factual dispute. The plaintiff prisoner also disputed the officers' assertion that he tried to bite an officer. There was a genuine factual dispute, therefore as to whether the officers acted in an objectively reasonable manner or used excessive force. Based on the prisoner's affidavit claiming that six inmates at the county detention facility were assaulted while placed in restraints, there was also a genuine factual issue as to whether the county sheriff had an unconstitutional use of force policy. Watts v. Smart, #08-40381, 2009 U.S. App. Lexis 9593 (Unpub. 5th Cir.).

     The plaintiff prisoner failed to show that excessive force was used against him, or even establish a genuine issue of fact for trial when all of his attachments to his response to the defendants' motion for summary judgment were irrelevant, unsworn, or even supported the defendants' argument that he only suffered minor injuries. He also failed to present any evidence to show that misconduct reports filed against him following the incident were false or that any prison official had refused to investigate his version of the incident. Summary judgment was properly granted for the correctional defendants in the prisoners' excessive force lawsuit. McCullough v. Miller, #08-4339, 2009 U.S. App. Lexis 10886 (Unpub. 3rd Cir.).

     Even if there was little need for the use of force against the prisoner, and little threat to the safety of other inmates or staff members, since the prisoner was in his cell at the time, he failed to show a violation of his Eighth Amendment rights. The officer only struck him once and merely inflamed an old injury, causing the prisoner's finger to become swollen. The minor amount of force used, the minor resulting injury, and a finding that the officer did not act in a sadistic or malicious manner supported the dismissal of individual capacity claims against the officer for excessive use of force. The court also rejected the argument that official capacity claims, which were barred by the Eleventh Amendment, could be pursued because of the state of Pennsylvania's waiver of sovereign immunity for claims involving state property. The court did not agree with the prisoner's argument that inmates such as himself were state property, as the Thirteenth Amendment to the U.S. Constitution prohibits human beings from being property. Matthews v. Villella, #4:08-CV-0964, 2009 U.S. Dist. Lexis 8858 (M.D. Pa.).

Prisoner Death/Injury

     A prisoner employed in a facility's kitchen claimed that he scalded his hand while performing cleaning duties. Even if, as he alleged, his injury occurred because the kitchen manager raised the water temperature unexpectedly to prepare for a state inspection, his claim, at most, amounted to one of negligence, which was insufficient to support an award of damages for violation of his federal civil rights. Caldwell v. Beard, #08-3286, 2009 U.S. App. Lexis 9029 (Unpub. 3rd Cir.).

Prisoner Discipline

     A prisoner did not have a right to review all the potentially inculpatory evidence before a disciplinary hearing began. Additionally, while he complained of not receiving certain documentary evidence at all, it was provided to him orally. His claim that he was denied the right to call witnesses was contradicted by the fact that he did, in fact, call a witness, and his failure to name any particular witness he was allegedly prevented from calling. His general attack on the hearing officer as "immoral, not impartial and not unbiased" was not supported by any particulars. There was, the court found, "some evidence" in the record to support disciplinary action against the prisoner, and no proof of a violation of his due process rights. The prisoner also failed to show that the incident report was filed against him in retaliation for his prior filing of a federal civil rights lawsuit, in violation of his First Amendment rights. Lasko v. Holt, #08-4216, 2009 U.S. App. Lexis 11482 (Unpub. 3rd Cir.).

     It was undisputed that the prisoner received both notice of the charges against him and the opportunity to present a defense at a disciplinary hearing that resulted in the loss of good time credits. The fact that a form filled out at the hearing indicated that the prisoner made no comment provided some evidence that he did attend the hearing. There was no showing that his due process rights were violated. Muhammad v. Wiley, #08-1351, 2009 U.S. App. Lexis 10791 (Unpub. 10th Cir.).

Religion

     A Florida civil commitment center's policy prohibiting martial arts practice did not violate a detainee's right to practice his religion, even if he and other Zen Buddhists believed that the practice of karate was a form of spiritual enlightenment. The policy was a safety measure designed to aid in preventing threats to staff members and other residents of the facility and applied to those of every religion. Marsh v. Florida Dept. of Corrections, #08-12222, 2009 U.S. App. Lexis 10649 (Unpub. 11th Cir.).

     An Orthodox Jew refused to remove her headscarf for the taking of an identification photo during her admittance into a correctional facility as an inmate. This requirement that she briefly remove the headscarf for this purpose, the court ruled, did not violate her First Amendment right to practice her religion and was rationally related to legitimate governmental objectives in having identification photos of prisoners that would not change over time. Otherwise, a prisoner could quickly change her appearance by simply removing her headdress or hat, posing a threat to institutional security. Zargary v. City of New York, #00 Civ. 897, 2009 U.S. Dist. Lexis 33240 (S.D.N.Y.).

     A prisoner could proceed with his claim that his right to practice his Buddhist religion was violated by the prison's prohibition on Buddhist communal worship without the presence of an outside volunteer, based on his assertion that Muslim prisoners were allowed to hold group worship without the presence of such a volunteer, and that no approved outside Buddhist volunteer was available. The court suggested that it was possible that safety and security concerns might be addressed by less restrictive alternatives. A trial court's finding that treating Buddhists differently than Muslim prisoners was justified because there were fewer of them was not supported by the evidence. Newby v. Quarterman, #06-11233, 2009 U.S. App. Lexis 9290 (Unpub. 5th Cir.).

Segregation: Administrative

     A prisoner who was convicted of forgery while incarcerated, based on false Uniform Commercial Code liens that he filed against prosecutors, was properly placed in administrative segregation after a search of his cell revealed completed UCC-1 statements in which he targeted correctional staff members involved in disciplinary hearings against him. While his sentence in the forgery charges included restrictions on his mailing privileges designed to prevent him from continuing to file false liens, he was found guilty of "kiting," or using another prisoner's identity to get around the mailing restrictions, and the forms found in his cell were sufficient to support a determination that he intended to keep filing false liens and to attempt to evade the mailing restrictions. His placement in administrative segregation on this basis did not violate due process. Fludd v. N.Y. State Dept. of Correctional Services, #506153, 2009 N.Y. App. Div. Lexis 3703 (A.D. 3rd Dept.).

Sexual Assault

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

          A female pretrial detainee claimed that a trainee corrections officer at a jail had entered her cell three times at night and forced sexual contact on her. A jury awarded her $500,00 in compensatory damages, and $600,000 in punitive damages. The trial court ordered that 1% of the damage award be applied to an award of attorneys' fees to the plaintiff. Upholding the damage awards, the appeals court ruled that the trial court did not act erroneously in finding that the defendant officer's attorney, in using all three of his peremptory jury challenges to attempt to remove females from the jury, engaged in gender-based discrimination, rejecting purported gender-neutral reasons offered for the challenges. Jury instructions properly told the jury to take into account the nature and extent of the plaintiff's injuries in assessing damages, and to consider whether those injuries were temporary or permanent. The appeals court ordered further proceedings on the proper amount of attorneys' fees to be awarded. Kahle v. Leonard, #08-1647/08-2578, 2009 U.S. App. Lexis 8908 (8th Cir.).

Sexual Harassment

     A correctional counselor's alleged actions of sexual harassment in staring at a prisoner for long periods of time repeatedly, and saying that he would like to engage in homosexual sex with him (i.e., that he wanted the inmate to do to him what he allegedly did to his rape victim) was not sufficiently serious to constitute an Eighth Amendment violation. There was also no evidence that the counselor's supervisor retaliated against the prisoner for becoming a Muslim by filing a false misbehavior report against him and suggesting that he fantasized about having a homosexual relationship with a male prison employee. Seymore v. Joslyn, #9:06 CV 1010, 2009 U.S. Dist. Lexis 32545 (N.D.N.Y.).

Strip Searches: Prisoners

    A sheriff department's practice of conducting group strip searches of detainees at the county detention facility violated the Fourth Amendment. While the department, in seeking to justify the practice, made general assertions concerning the argument that limited space and staffing required group as opposed to individual strip searches, there was no apparent effort made to carry out individualized searches or to take measures to preserve individual privacy during the strip searches. There was also no evidence presented that the group searches were more likely than individualized strip searches to find contraband. The court also found that a policy of strip searching or subjecting to a visual body cavity search all persons found entitled to release from custody "could not be reconciled" with the Fourth Amendment. Individual defendants, however, were entitled to qualified immunity from liability. Lopez v. Youngblood, #1:07cv0474, 2009 U.S. Dist. Lexis 28508 (E.D. Cal.).

     A pretrial detainee failed to show that there was any discriminatory intent towards male detainees in subjecting him to a partial strip search and pat down of his groin area by a female cadet officer despite the nearby availability of male detention officers. The search was reasonably related to legitimate objectives and there was no showing of deliberate indifference to any pain the search might have caused because of its cross-gender aspect. Under these circumstances, the court also found, the search did not constitute "punishment." Byrd v. Maricopa County Sheriff's Dept., #07-16640, 2009 U.S. App. Lexis 10939 (9th Cir.).

     A jail's clothing exchange procedure for newly admitted inmates did not constitute a strip search violating the Fourth Amendment and conducted without reasonable suspicion. The plaintiff inmates did not allege that they were subjected to visual or manual body cavity searches during the clothing exchange. They were merely required to remove all their clothing while watched by an officer, in order to prepare to take a shower and then put on jail clothes. The court noted that such clothing exchanges are common practices in jails and prisons, as is the need for officers to be always "vigilant." The procedure did not violate detainee privacy or constitute a "strip search" The plaintiffs, further, admitted that methods were available for them to prevent viewing of their private parts if they wanted to do so. Kelsey v. Wright, #07-0893, 2009 U.S. App. Lexis 10985 (2nd Cir.).

Terrorism, Enemy Combatants, and Military Prisoners

     A federal trial court has ruled that the U.S. government has the legal authority to hold and prosecute detainees currently held at the Guantanamo Bay Detention Facility despite no longer asserting that it seeks to do so on the basis that they are "enemy combatants." The authority of the government to detain persons believed to have been part of terrorist organizations is "entirely consistent with the law of war principles that govern non-international armed conflicts." In Re: Guantanamo Bay Detainee Litigation #05-0763, 2009 U.S. Dist. Lexis 43249 (D.D.C. May 19, 2009).

U.S. Supreme Court Actions

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

    A New York state law that purported to protect correctional officers from liability in lawsuits by prisoners for conduct carried out within the scope of their employment violated the Supremacy Clause of the U.S. Constitution. Under the New York law, the state's general courts were stripped of jurisdiction over federal civil rights lawsuits or similar state law claims filed by prisoners in that context, which would result in the dismissal of such lawsuits, and prisoners being limited, instead, to filing claims against the State of New York in the New York Court of Claims. The U.S. Supreme Court found that Congress has made the judgment, as a matter of federal law, that any person who violates a federal right while acting under color of state law is subject to a federal civil rights lawsuit for damages, and that both federal and state courts have jurisdiction over such claims. A state, the Supreme Court declared, may not "relieve congestion in its courts by declaring a whole category of federal claims to be frivolous," which appeared to be the basis of the New York statute. Haywood v. Drown, #07-10374, 2009 U.S. Lexis 3807.

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    Mental Illness: Mentally Ill Offender Treatment and Crime Reduction Act Fact Sheet. Provides background on legislation that authorizes federal grants to jurisdictions interested in developing collaborative criminal justice/mental health responses to people with mental illnesses.

     Statistics: 2008 Arrestee Drug Abuse Monitoring Program (ADAM II), Office of National Drug Control Policy (ONDCP), (May 2009). The federal report, which surveys drug use among booked male arrestees in 10 major metropolitan areas across the country, shows the majority of arrestees in each city test positive for illicit drug use, with as many as 87 percent of arrestees testing positive for an illegal drug. According to the ADAM II report, drug use among the arrestee population is much higher than in the general U.S. population. The percentage of booked arrestees testing positive for at least one illicit drug ranged from 49 percent in Washington, D.C. to 87 percent in Chicago. The most common substances present during tests, in descending order, are marijuana, cocaine, opiates, and methamphetamine. Additionally, many arrestees tested positive for more than one illegal drug at the time of arrest; from 15 percent in Atlanta to 40 percent in Chicago. Data on drug use, drug markets, treatment utilization, and criminal offenses were collected among booked arrestees in jails within 48 hours of their booking and in the following counties and cities: Fulton County and City of Atlanta; Mecklenburg County (Charlotte, NC); Cook County (Chicago, IL); Denver County (Denver, CO); Marion County (Indianapolis, IN); Hennepin County (Minneapolis, MN); Manhattan (New York, NY), Multnomah County (Portland, OR); Sacramento County (Sacramento, CA) and Washington, D.C. (District of Columbia).

     Statistics: A report from the Council of State Governments and Policy Research Associates indicates that 17% of new jail inmates have serious mental illnesses. The study of more than 20,000 new inmates found that the percentage of women with serious mental illnesses--31--is more than twice that of males, 14.5 percent. The organizations said their count was the most accurate on the subject in more than two decades. The findings, published in the journal Psychiatric Services, indicate that as many as 2 million bookings of people with serious mental illnesses may occur each year.

Reference:

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

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