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Access to Courts/Legal Info

     An inmate failed to show an unconstitutional denial of his right of access to the courts. He had approximately three months to prepare the petition in question, and was granted unimpeded daily visits to the law library for over a month before the library temporarily closed. While his work was alleged to be on a disk in the closed library, the prisoner did not claim that he sought assistance to get the disk back from the library. Howard v. Webster, #08-3956, 2009 U.S. App. Lexis 16355 (Unpub. 7th Cir.).

Diet

     A prisoner failed to show that prison officials were deliberately indifferent to a purported risk to his health posed by his diet and the failure to provide him with requested dietary supplements. The prisoner claimed both that his vegan diet provided was nutritionally inadequate, and that, as a follower of the African Hebrew Israelite religion, he should have been given supplements considered to be "religious necessities": including blackstrap molasses, sesame seeds, kelp, brewer’s yeast, parsley, fenugreek, wheat germ, and soybeans. The prisoner failed to refute the prison's assertion that providing the supplements would have involved security risks. The appeals court ruled, however, that the prisoner's claims concerning strip searches should have been allowed to go to a jury, since there was evidence from which it could be found that the searches were conducted with the intent to harass. Mays v. Springborn, #05-3630, 2009 U.S. App. Lexis 15749 (7th Cir.).

Disability Discrimination: Prisoners

     A prisoner failed to show that he had been subjected to disability discrimination and violations of his First, Eighth, and Fourteenth Amendment rights because he has AIDS. While he claimed that his family was denied a contact visit because of his medical condition, that "disparaging" remarks were made about his condition, and that he was otherwise subjected to prejudice, discrimination, and retaliation, he failed to allege sufficient specifics, as opposed to "theories and conclusions" to enable a court to find actionable discrimination. Lopez v. Beard, #08-3699, 2009 U.S. App. Lexis 13403 (Unpub. 3rd Cir.).

First Amendment

     While the plaintiff inmate asserted that false disciplinary reports, for which he was sanctioned, were filed against him in retaliation for his use of the grievance system, he produced no evidence of this except for the timing of the discipline, and did not show that his filing of grievances was a motivating or a substantial factor in the decision to file three misconduct reports against him. The defendants presented evidence that they had legitimate penological reasons for the filing of the reports. Toussaint v. Good, #08-3751, 2009 U.S. App. Lexis 14991 (Unpub. 3rd Cir.).

     An inmate accused prison officials of violating his First Amendment rights by retaliating against him for writing a pamphlet that encouraged other prisoners to engage in work stoppages. Such work stoppages, the court stated, were deliberate disruptions of prison order, and restrictions on prisoners' rights to organize and petition were reasonable when inmate grievance procedures were available. Advocacy of such work stoppages were not entitled to First Amendment protection when less disruptive means of pursuing grievances were available. Pilgrim v. Luther, #07-1950, 2009 U.S. App. Lexis 14588 (2nd Cir.).

     A prisoner claimed that subjecting him to a disciplinary hearing for using vulgar or indecent language in a note mailed to opposing counsel violated his First Amendment rights. Rejecting this claim, a federal appeals court found that the note, which was written on toilet paper, resembled a threat and showed a "completely unjustified" disrespect for authority. It used "unacceptably vulgar" language that would not be tolerated in the free setting. Imposition of discipline for writing the note helped correct behavior that would prejudice the prisoner when he left prison. Morgan v. Quarterman, #07-41064, 2009 U.S. App. Lexis 12325 (5th Cir.).

     While book publishing, since it could result in the payment of royalties to the prisoner, did constitute a "business activity" under California law, the court, without further evidence, could not determine that a decision barring the prisoner from publishing his book furthered a substantial or important governmental interest unrelated to the suppression of his First Amendment expression. Further proceedings were therefore ordered on his First Amendment claims. Bretches v. Kirkland, #07-16022, 2009 U.S. App. Lexis 11750 (Unpub. 9th Cir.).

Foreign Prisoners

     A Mexican citizen convicted of murder could not show that he had a right to relief based on officials' failure to advise him of his rights, under the Vienna Convention on Consular Relations, to consular notification and assistance. The prisoner based his claim on a 2005 Presidential Memorandum that directed state courts to give effect to a 2004 decision of the International Court of Justice (ICJ) concluding that the United States had violated the rights of 51 Mexican nationals then on death row, including the petitioner, by failing to comply with the Vienna Convention. The U.S. Supreme Court subsequently rejected claims similar to the petitioner's, and held that neither the Presidential Memorandum nor the ICJ decision preempted state procedural limits on filing successive habeas corpus petitions. The prisoner was barred from raising the issue involved since he had previously done so and had been denied relief on the merits of the claim. In re Martinez, #S141480, 2009 Cal. Lexis 6016.

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

     Massachusetts inmates challenged a state regulation that banned their receipt of sexually explicit publications or publications featuring nudity, as well as a correctional policy against displaying such materials in their cells. Rejecting the plaintiffs' First Amendment claims, the federal appeals court found that there was a rational connection between legitimate governmental interests and the means used to further them. Prison security concerns supported the cell display policy. Josselyn v. Dennehy, #08-1095, 2009 U.S. App. Lexis 12272 (1st Cir. Cir.).

Medical Care

     A federal appeals court upheld a jury's verdict for defendant prison physicians and a prison health provider on Eighth Amendment claims arising from a prisoner's treatment for the Hepatitis C Virus (HCV), but ordered clarification on why the trial court had dismissed the prisoner's state medical negligence claim, which required a lower standard of proof than his federal constitutional claim. Doe v. N.J. Dept. of Corrections, #07-3189, 2009 U.S. App. Lexis 15130 (Unpub. 3rd Cir.).

     A prisoner contended that prison doctors misdiagnosed a thyroid mass and improperly provided overly-invasive treatment (surgery) for what turned out to be a non-malignant, benign cyst. The doctors were properly granted summary judgment on an Eighth Amendment claim, as they were not shown to have acted with a "culpable state of mind" amounting to deliberate indifference to the prisoner's serious medical needs,. even if the misdiagnosis was allegedly medical malpractice. Parker v. Gosmanova, #08-6273, 2009 U.S. App. Lexis 14870 (10th Cir.).

     After a prisoner died of cryptococcal meningitis, an autopsy showed that he suffered from an undiagnosed case of HIV/AIDS that rendered him susceptible to the disease that killed him. Summary judgment was upheld for defendant state correctional officials who were not shown to have had any reason to know or believe that the prison medical staff was not adequately treating the prisoner. Discovery in the case was properly limited to non-privileged documents concerning the allocation of resources, medical costs, and documents mentioning the deceased prisoner. The plaintiff's request for 26,000 documents that the Delaware Department of Corrections had furnished to the U.S. Department of Justice during a federal investigation of state prison conditions was overbroad. Estate of Chance v. First Correctional Medical, Inc., #08-4220, 2009 U.S. App. Lexis 13417 (Unpub. 3rd Cir.).

     While the plaintiff prisoner established that he objectively had serious medical needs, he failed to show that the defendants acted subjectively with deliberate indifference when they purportedly delayed in diagnosing and treating his injured knee, treated him as mentally unstable, and failed to provide proper medication for high blood pressure. He failed to show more than mere negligence, which is inadequate to establish federal civil rights violations. Barnes v. Martin County Sheriff's Dept., #08-10785, 2009 U.S. App. Lexis 12042 (Unpub. 11th Cir.).

Medical Care: Dental

     While a prisoner claimed that a prison dentist acted with deliberate indifference and failed to treat an abscess in his mouth, the evidence showed that the dentist found no infection or abscess during an examination of the prisoner's teeth and gums. The court found no evidence from which it could conclude that the dentist should have known that the prisoner would develop an abscess and provide treatment to prevent it. The court also rejected a claim that the dentist had used excessive force during the examination, or retaliated against him for filing a grievance against him. Sands v. Cheesman, #08-15513, 2009 U.S. App. Lexis 15941 (Unpub. 11th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     Further proceedings were ordered in a case where a federal trial court dismissed a prisoner's lawsuit over claims that prison officials beat him during a lockdown, and then used threats to prevent him from filing a grievance, based on his supposed failure to exhaust available administrative remedies, as required under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). The prisoner did send a complaint to the Internal Affairs division of the prison, but did not file an administrative remedy form, but the appeals court noted that the trial court did not address evidence that the prison's procedures converted all inmate complaints regarding the lockdown into administrative remedy forms, or evidence that the prison interfered with his use of the grievance system. Baez v. Fauver, #08-2777, 2009 U.S. App. Lexis 13692 (Unpub. 3rd Cir.).

Prisoner Assault: By Inmates

     The estate of a prisoner murdered by another inmate failed to show that county officials acted with deliberate indifference to the safety of the murdered prisoner. The county's booking policy did not approve of the housing of violent and nonviolent prisoners together, but instead mandated that incoming prisoners be classified as high risk or low risk after an intake interview. High-risk prisoners were then housed in a separate area, in order to separate out violent offenders. There was no evidence that the county had any notice of the purported inadequacy of this policy. Moyle v. Anderson, #08-3730, 2009 U.S. App. Lexis 15120 (8th Cir.).

     A prisoner in protective custody claimed that a warden acted with deliberate indifference when, after Hurricane Katrina, he was transferred to a field at another facility, where he was placed with the general population and attacked by other prisoners. The appeals court ordered limited discovery to focus on the issue of qualified immunity for the warden, and specifically on the warden's knowledge of facts from which he could reasonably conclude that an excessive risk of harm was present. Morgan v. Hubert, #08-30388, 2009 U.S. App. Lexis 14355 (Unpub. 5th Cir.).

     A prisoner who presented evidence establishing a "tangible threat" to his safety, who also claimed to have spoken directly to certain prison officials about the threat before he was attacked by another prisoner could proceed with his lawsuit on a failure to protect claim. Prison officials denied that the prisoner told them about the threat, but this merely created a disputed issue of fact, which could not be decided on a motion for summary judgment. There was also a disputed issue of fact as to whether the level of human waste in the prisoner's cell rendered it uninhabitable. Morris v. Ley, #08-2549, 2009 U.S. App. Lexis 13588 (Unpub. 7th Cir.).

Prisoner Assault By Officers

     Trial court did not act erroneously in determining that an officer did not use excessive force against a prisoner in an incident in the shower and that officers did not use excessive force against him in an incident in an infirmary cell. The evidence showed that the prisoner was belligerent in the shower and attacked an officer, justifying the use of force to subdue him, including the use of capstun. Subsequently, the prisoner's refusal to stop shouting and banging on his infirmary cell door at 2 a.m. similarly justified the use of force, including capstun. The appeals court further ruled, however, that the prisoner alleged a viable excessive force claim against three officers arising from their conduct in the shower room incident, in that they purportedly kicked him in the ribs and punched him in the head after he had stopped resisting and was prostrate on the ground with one officer sitting on him. If true, this was conduct that a reasonable officer would have known was improper. Giles v. Kearney, #07-4140, 2009 U.S. App. Lexis 15597 (3rd Cir.).

     A prison employee who used a stinger grenade in the course of extracting a prisoner from his cell was not entitled to summary judgment in an excessive force lawsuit when several factors suggested that he used the grenade in a malicious and sadistic manner rather than in a good faith effort to maintain or restore order. The court suggested that, under the circumstances, cell entry, rather than the use of the grenade, might have been a "viable" alternative. The prisoner also created a factual issue as to whether a subsequent strip search was carried out in a manner designed to humiliate him. Jackson v. Geri, #07-cv-656, 2009 U.S. Dist. Lexis 47508 (W.D. Wis.).

     A prisoner could not support his excessive force claim against one officer with the "fantastical" claim that he had attempted to kill him by placing a lethal venomous white tipped spider with white dots on its back in the cell. None of the other alleged actions by any of the officers amounted to excessive use of force, and the prisoner did not show that he suffered physical injuries, needed medical attention, or that his supposed psychic injuries were caused by the defendants' conduct. Browne v. San Francisco Sheriff's Dept., #C 03-0047, 2009 U.S. Dist. Lexis 40515 (N.D. Cal.).

Prisoner Discipline

     An inmate could not proceed with his federal civil rights lawsuit seeking damages because his due process rights were allegedly denied during a disciplinary hearing when the disciplinary conviction had not been overturned on appeal or otherwise set aside, and when prevailing on his due process claim would necessarily imply the invalidity of the disciplinary conviction. Thomas v. Quarterman, #08-20812, 2009 U.S. App. Lexis 15244 (Unpub. 5th Cir.).

     While a prisoner was initially convicted of fighting, violent conduct, and creating a disturbance, the two latter charges were reversed on administrative appeal. The prisoner was ultimately sentenced to six months in a special housing unit solely on the fighting charge that he had pled guilty to. As a result, any procedural defects in the initial disciplinary hearing did not cause him any negative consequences, so that he could not pursue a due process claim. Barnes v. Henderson, #06-CV-6363, 2009 U.S. Dist. Lexis 52730 (W.D.N.Y.).

     While a prisoner who suffered loss of good time credits following a disciplinary conviction was entitled to due process, the record showed that he received all process that was due, including notice of the charges against him, an opportunity to present evidence and call witnesses, and a written decision, which was supported by some evidence. A second disciplinary conviction did not result in the loss of good time credits, but only disciplinary segregation and loss of privileges, so that no viable due process claim was raised. Fiore v. Lindsay, #08-4785, 2009 U.S. App. Lexis 13404 (Unpub. 3rd Cir.).

     A prisoner's involvement with an outside organization claiming to seek better treatment of prisoners resulted in disciplinary convictions for lying, soliciting a staff member, and engaging in a business or enterprise. He claimed that he was denied due process in challenging these convictions, because he was not provided with tapes or transcripts of calls between himself and his wife, which he argued contained exculpatory information. The court rejected this claim, noting that the prisoner could have submitted the same evidence through his wife's affidavit. Brown v. Schneiter, #08-3744, 2009 U.S. App. Lexis 12728 (Unpub. 7th Cir.).

Prisoner Transfer

     A prisoner claimed that his due process rights were violated when he was transferred to a security housing unit based on a nurse's report of misconduct without a disciplinary hearing. He further claimed that he was given the highest security classification on the unit, resulting in loss of his job and inability to participate in a rehabilitation group. Because placement in the security housing unit did not involve an atypical and significant hardship in relation to the ordinary incidents of prison life, no protected liberty interest was involved in the transfer, and no due process claim was viable. The transfer and loss of privileges also did not amount to an Eighth Amendment violation, as there was no "deliberate indifference" by prison officials and he did not suffer an "objectively serious" deprivation. Johnson v. Burris, #08-4321, 2009 U.S. App. Lexis 14958 (Unpub. 3rd Cir.).

Religion

     A prisoner did not establish a violation of his right to religious freedom. He did not show how a requirement that he work on Sunday burdened his religious beliefs. The court also rejected retaliation claims by the prisoner, since the prisoner did not dispute that he disobeyed orders, which was the partial basis for the misconduct reports filed against him. Chavis v. Goord, #07-4787, 2009 U.S. App. Lexis 13681 (Unpub. 2nd Cir.).

Sex Offenders

    Congress did not have authority, under the Commerce Clause of the Constitution, U.S. Const. art. I, § 8, cl. 3, or the Necessary and Proper Clause, U.S. Const. art. I, § 8, to pass 18 U.S.C.S. § 4248, under which the plaintiff former federal inmates were to be subject to civil commitments as sexually dangerous persons. The statute did not regulate interstate commerce and if upheld, would undermine the "historic distinction" between federal authority and state authority. The plaintiffs were therefore granted dismissal of the cases seeking their civil commitments. U.S.A. v. Swarm, Civ. #07-12061, 2009 U.S. Dist. Lexis 52550 (D. Mass.).

Sexual Assault

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

     The state of Michigan will pay a total of $100 million in settlement of a class action lawsuit by over 500 female prisoners who said that they suffered sexual assaults by prison guards. As part of the settlement, the state dropped an appeal of two verdicts for 18 women, which totaled almost $24 million. The settlement will be paid in six payments over five years. In the lawsuit, pending since the 1990s, women claimed that guards in Michigan correctional facilities sexually abused them, and that prison officials ignored reports by human rights groups that included warnings that male officers were "preying" on female prisoners. One of the named plaintiffs in the lawsuit stated that she was raped eight times by prison guards during her incarceration from 1993-1996. $28 million of the settlement will pay for lawyers' fees in the case, and is reportedly for 30,000 hours of time. Bunton v. Dept. of Corrections, Washtenaw County Circuit Court, Michigan, reported in Detroit Free Press, July 16. 2009. To read a special report by the newspaper's reporters on the lawsuit, click here. In a January 2009 decision, the Michigan Court of Appeals upheld a $15.5 million award to 10 female prisoners concerning their sexual assault by officers at Michigan's Scott Correctional Facility, and stated that the defendants' arguments, raised on appeal, were "disingenuous," "fundamentally flawed" and "muddled," finding that there was sufficient evidence" for the jury's award. In that case, it was alleged that approximately 30% of the male staff at Scott were involved in sexual assaults. A further appeal to the Michigan Supreme Court was dropped as part of the settlement. Neal v. Dept. of Corrections, #28532, 2009 Mich. App. Lexis 182 (Unpub.).

     Editor's Note: For a general discussion of this issue, see Civil Liability for Sexual Assaults on Prisoners, 2007 (8) AELE Mo. L.J. 301.

Work/Exercise/Recreation Programs

     Prison lockdowns, which allegedly resulted in the plaintiff prisoner being denied outdoor exercise, were reasonable precautions in light of violence, including assaults on staff members, that had occurred at the facility, so that defendant prison officials were entitled to qualified immunity. Norwood v. Vance, #07-17322, 2009 U.S. App. Lexis 15224 (2nd Cir.).

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     Female Prisoners: "Mothers, Infants and Imprisonment. A National Look at Prison Nurseries and Community-Based Alternatives," Women's Prison Association, Institute on Women & Criminal Justice. (May 2009). According to the report, nine states have prison nursery programs in operation or under development. The authors of the report state that "Prison nursery programs keep mothers and infants together during the critical first months of infant development, and the research shows that these programs produce lower rates of recidivism among participating mothers." Between 1977 and 2007, the number of women in U.S. prisons increased by 832 percent.

     Immigration: 2009 Immigration Detention Reforms (August 6, 2009). The U.S. Immigration and Customs Enforcement agency (ICE) has announced a series of reforms of the immigration detention system designed to "address the vast majority of complaints about our immigration detention, while allowing ICE to maintain a significant, robust detention capacity to carry out serious immigration enforcement." These actions include creating an Office of Detention Policy and Planning (ODPP) to design and plan a civil detention system tailored to addresses ICE's needs. The ODPP will evaluate the entire detention system in a methodical way, with seven areas of focus, each with benchmarks for progress: •Population Management: To ensure the best location, design, and operation of facilities reflecting the unique nature of civil detention; •Detention Management: To ensure appropriate custodial conditions and address day-to-day detention functions, including classification, discipline and grievances; •Programs Management: To ensure the provision of religious services, family visitation, recreation and law libraries; •Health Care Management: To ensure the timely provision of medical, dental and mental health assessment and services; •Alternatives to Detention Management: To develop a national strategy for the effective use of alternatives to detention including community supervision; •Special Populations Management: To provide attention to women, families, the elderly and vulnerable populations; and •Accountability: To ensure ICE employees perform the core functions of detention oversight, detainee classification and discipline, and grievance review. Other immediate actions include: •Discontinued use of family detention at the T. Don Hutto Family Residential Facility in Texas. In place of housing families, we will propose that the Texas facility will be used solely as a female detention center. Presently, Hutto is used to detain families and low custody female detainees. Detained families will now be housed at Berks Family Residential Center in Pennsylvania. •Formation of two advisory groups of local and national organizations interested in ICE's detention system. These groups will provide feedback and input to the Assistant Secretary. One will focus on general policies and practices, while the other will focus on detainee health care. •Appointment of 23 detention managers to work in 23 significant facilities - facilities which collectively house more than 40 percent of our detainees. These 23 federal employees will directly monitor the facilities and ensure appropriate conditions. •Establishment of an Office of Detention Oversight (ODO) whose agents will inspect facilities and investigate detainee grievances in a neutral manner. The ODO will be part of ICE's Office of Professional Responsibility.

     Medical Care: Federal Bureau of Prisons Clinical Practice Guidelines (CPGs) on Diabetes (2009), Hepatitis C and Cirrhosis (2009), Lipid Disorders (2009), and Varicella Zoster Virus Infections (2009). Earlier issued CPGs can be accessed at: http://www.bop.gov/news/medresources.jsp

     Prison Rape: Prison Rape Elimination Act Data Collection Activities, 2009 The Prison Rape Elimination Act of 2003 (PREA) (P.L. 108-79) requires the Bureau of Justice Statistics (BJS) to carry out, for each calendar year, a comprehensive statistical review and analysis of the incidence and effects of prison rape. The Act further specifies that the review and analysis shall be based on a random sample, or other scientifically appropriate sample of not less than 10 percent of all Federal, State, and county prisons, and a representative sample of municipal prisons. Nearly 8,700 facilities nationwide are covered by the Act. BJS has developed a multiple-measure, multiple-mode data collection strategy to fully implement requirements under PREA. Results of data collection activities during 2008 and 2009: The Survey on Sexual Violence (SSV) in Correctional Facilities collects data annually on the incidence of sexual violence in adult and juvenile correctional facilities. The National Inmate Survey (NIS) gathers data directly from inmates on the incidence of sexual assault in correctional facilities. In October 2009 BJS expects to release the report entitled Sexual Victimization in State and Federal Prisons as Reported by Inmates, 2008, which will provide prison rankings as required under the Act. Jail rankings are expected to be released by March 2010. The Former Prisoner Survey (FPS) provides national estimates of the incidence of sexual victimization based on reports of former state prison inmates. Results are expected to be released by January 2010. The National Survey of Youth in Custody (NSYC) provides facility-level estimates of youth reporting sexual victimization in juvenile facilities. Facility rankings are expected to be released in a report by December 2009. 07/09 NCJ 227377

     Training: "Technical Assistance, Information, and Training for Adult Corrections," U.S. Dept. of Justice, National Institute of Corrections (NIC). Presents the training programs, technical assistance opportunities, and information services that NIC will provide for correctional executives and practitioners working in all corrections disciplines in federal, state, and local adult correctional agencies during fiscal year 2010, which begins on October 1, 2009.

 Reference:

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

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