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Attorneys' Fees

     A federal court jury awarded $1 to a plaintiff Muslim immigration detainee on claims that her rights to religious freedom were violated, as well as $100,000 on state law negligent hiring, training, supervision, and retention claims. A federal appeals court found that the trial court, in awarding $642,398.57 in attorneys' fees to the plaintiff, erroneously assumed that 33% to 50% of the state law damage award was intended as compensation for the plaintiff's federal religious freedom claim. A recalculation was ordered of the proper amount of attorneys' fees to be awarded. Jama v. Esmor Correctional Services, Inc., #08-2500, 2009 U.S. App. Lexis 17950 (3rd Cir.).

DNA

     A federal court has held that police can lawfully forcibly take DNA samples, including by drawing blood with a needle, from persons who have been arrested but not convicted of any crime. The court upheld a federal statute allowing the gathering of such samples from those arrested for a felony. The court rejected claims that taking such samples was overly intrusive or violates the Fourth Amendment. U.S.A. v Pool, #CR09-0015, (E.D. Cal.).

First Amendment

     When a prisoner gave advice to a fellow inmate about how to file a grievance, he was not engaged in constitutionally protected speech. His own filing of grievances, however, as well as his statements about his intention to file grievances against a treatment program assistant, were protected speech. The prisoner failed to show that the assistant retaliated against him because of the grievances, since his grievances were a response to her actions, not the cause of them. Coleman v. Beale, #07-CV-6219, 2009 U.S. Dist. Lexis 58465 (W.D.N.Y.).

     While a prison guard's alleged action of displaying a noose could not reasonably have been interpreted by a prisoner as constituting a threat against him, and was not, therefore, cruel and unusual punishment, the trial court should not have dismissed the prisoner's claim that he was unlawfully retaliated against, including suffering the loss of his prison job, in response to his pursuit of a grievance over the incident. Dobbey v. Illinois Dept. of Corrections, #08-2828, 574 F.3d 443 (7th Cir. 2009).

Inmate Funds

     A prisoner failed to show that charging him $10 for medical services and medications constituted cruel and unusual punishment, since he did not alleged that he was denied medical treatment because of lack of ability to pay. The prison's policies did not limit the providing of such services to those able to pay. Cannon v. Mason, #08-7117, 2009 U.S. App. Lexis 17655 (Unpub. 10th Cir.).

Mail

     A prisoner claimed that correctional employees violated his rights when they refused to deliver to him and other inmates copies of a newsletter that were sent together in a single box but which were addressed to individual recipients. The material was rejected under a prison policy barring non-privileged mail containing material intended for other persons than the addressees. Because the prisoner could not show that his right to receipt of a newsletter sent in this manner was clearly established, the individual defendants were entitled to qualified immunity on the money damages claims. Further proceedings were ordered on the claim for injunctive relief. Parkhurst v. Lampert, #08-8069, 2009 U.S. App. Lexis 15850 (Unpub. 10th Cir.).

     A prisoner failed to show that he suffered any actual injury based on a prison mailroom officer's alleged failure to properly handle his legal mail. Blount v. Terry, #5:08-CV-124, 2009 U.S. Dist. Lexis 18579 (M.D. Ga.).

Medical Care

    The "continuing violation" doctrine applies to Eighth Amendment claims of medical indifference brought under 42 U.S.C. Sec. 1983 when a prisoner shows an ongoing policy of deliberate indifference to his or her serious medical needs and "some acts in furtherance of the policy within the relevant statute of limitations period."  Further proceedings were required to consider whether that doctrine also applied to the prisoner's federal disability discrimination claims. The case involves a prisoner suffering from right arm paralysis and limited use of his left arm. He claimed that, despite recommendations from a number of doctors, he was not provided with assistance with "activities of daily living, transferred to specialized infirmary housing, or provided with needed treatments." Shomo v. City of New York, #07-1208, 2009 U.S. App. Lexis 18001 (2nd Cir.).

     While a prisoner claimed that the defendant officers denied him medical treatment while he was in segregation, there was no evidence showing that the officers were even assigned to the segregation unit during the time period in question, so that they were entitled to summary judgment. Further, a jury verdict in favor of the officers on an excessive force claim meant that there had been no attack on him, so that there could not have been a denial of medical care on the basis that the prisoner claimed. Teague v. Mayo, #07-1155, 2009 U.S. App. Lexis 1544 (7th Cir.).

     A prisoner claimed that he had been subjected to deliberate indifference because he did not receive surgical treatment for a knee injury; there was no evidence that any medical personnel recommended surgery, and the prisoner did receive treatment, including physical therapy and a knee brace. The treatment provided was "frequent," and included an MRI, and an assessment of his problems by a team of doctors, including an orthopedic specialist. There was no proof of deliberate indifference. Serrano v. Folino, #08-2107, U.S. App. Lexis 16655 (Unpub. 3rd Cir.).

     Because of disputed facts concerning whether a lieutenant provided the plaintiff inmate with prescribed pain medication, the prisoner could proceed with his civil rights claim against him. He could also proceed on his claims against a prison nurse, based on his allegation that his daily requests for medical attention for pain and swelling in his foot went unheeded. Chapman v. Johnson, #08-60475, 2009 U.S. App. Lexis 17427 (Unpub. 5th Cir.).

Medical Care: Dental

     A prisoner argued that the defendants were deliberately indifferent to his needs in that they offered him the possibility of having his tooth extracted, but not the option of a root canal procedure. Rejecting this claim, the court found that the prisoner received frequent dental appointments and treatments, and was advised that the tooth in question would cause him continuing infections and pain if not extracted. It was the inmate's choice not to proceed with the extraction, and his difference of opinion, that he should be given a root canal procedure, did not entitle him to that treatment. Brathwaite v. Correctional Medical Services, #07-006, 2009 U.S. Dist. Lexis 56031 (D. Del.).

Overcrowding

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

     A three-judge federal court panel has ordered that the state of California reduce its prison population of 150,000 by approximately 40,000, or a 27% reduction, within a two-year period, for the purpose of combating overcrowding and various alleged deficiencies in prison medical programs and other prison conditions which allegedly resulted in prisoner deaths from increased violence and the spread of disease and infections. The panel rules that the population reduction in the California prison system to 137.5% of capacity was the least restrictive means to accomplish necessary changes. Coleman v. Schwarzenegger, #CIV S-90-0520, 2009 U.S. Dist. Lexis 67943 (E.D. Cal., three judge court). Editor's Note: A good online collection of documents from this case and related litigation can be found here.

Prison Litigation Reform Act: Exhaustion of Remedies

     In a lawsuit brought by a former jail detainee against guards for allegedly allowing other prisoners to attack him, the lawsuit should not have been dismissed for failure to meet the requirement under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(h) that available administrative remedies be exhausted prior to pursuing litigation, since that requirement only applies to current prisoners, not former prisoners. Talamantes v. Levya, #06-55939, 2009 U.S. App. Lexis 17510 (9th Cir.).

Prisoner Assault: By Inmate

     When an inmate failed to inform prison employees that his cellmate had allegedly made threats against him, they could not be held liable for failure to prevent the ensuing attack. The prisoner also failed to show deliberate indifference to his resulting injuries, when he was provided with cool compresses and pain medication, as well as seen by a nurses three hours after the assault, and by a doctor who provided additional treatment the following morning. Whaley v. Erickson, #08-1628, 2009 U.S. App. Lexis 16589 (Unpub. 7th Cir.).

     A prisoner who claimed to have been injured in an attack by other prisoners himself stated that jail policies required violence prone prisoners be separated out and alleged that deputies violated those policies when they placed him in a cell with the prisoner who attacked him. He did not claim, however, that the sheriff had directed the deputies to violate those policies or knew that anyone would do so. The sheriff, therefore, could not be subjected to supervisory liability. The prisoner also failed to show that the deputies were alerted to the threat against him in time to take action to prevent the assault. Gross v. White, #08-14411, 2009 U.S. App. Lexis 15939 (Unpub. 11th Cir.).

Prisoner Assault: By Officer

     While there was some "physical contact" between a defendant sheriff and the plaintiff prisoner, the force used was minimal. The prisoner's only alleged injuries were soreness and swelling under his left eye, which was insufficient to support an award of damages. Harris v. Salley, #09-6345, 2009 U.S. App. Lexis 17238 (Unpub. 4th Cir.).

     Upholding a jury award for an inmate in an excessive force lawsuit, a federal appeals court found that the plaintiff inmate's testimony concerning officers' alleged blows to his head and face, the way in which handcuffs were fastened on him, and the "recurring pain" he suffered as a result was sufficient to support the result. The appeals court also upheld a jury finding that defendants were aware of and disregarded claims of inmate abuse, based on a prison administrator's acknowledgment that, during a prison lockout during which the incident in question occurred, he received daily reports of inmate abuse which he and a deputy commissioner of corrections forwarded to the commissioner of corrections. A total of $42,000 in damages was awarded against the prison administrator, deputy commissioner, and commissioner. In Re: Bayside Prison Litigation, Linsey v. Fauver, #07-3739, 2009 U.S. App. Lexis 16262 (Unpub. 3rd Cir.).

     An inmate should be allowed to proceed with his excessive force claims against two correctional officers when genuine issues of fact existed both as to the level of force used and the extent of the prisoner's allegedly resulting injuries. The trial court, however, properly rejected claims against one officer based on the time the prisoner spent in a restraint chair, since there was no evidence of a resulting serious injury, and dismissed claims against another officer based on the failure to allege sufficient facts about his involvement in the incident. Williams v. Collier, #08-6759, 2009 U.S. App. Lexis 16288 (Unpub. 4th Cir.).

Prisoner Discipline

     After officers found a bottle of correction fluid and a magazine article showing "scantily clothed" women in a prisoner's possession, he was convicted of two disciplinary violations. While the hearing did not result in any loss of custody credits, the inmate did stipulate to a two-year denial of parole. Upholding this result, a California appeals court found that the adverse impact of rule violations on a prisoner's parole does not implicate due process guarantees requiring judicial review of the result. There was some evidence supporting the findings made at the hearing, so that, even if the prisoner had presented a due process claim subject to judicial review, his claim would have failed. In re: Johnson, #F055768, 2009 Cal. App. Lexis 1285 (Cal. App. 5th Dist.).

     Upholding a disciplinary determination that an inmate was guilty of actions with his cellmate that could be perceived as sexual acts, and that were disruptive to the institution, a federal appeals court ruled that the prisoner's due process rights were not violated by failing to allow him to present testimony by his cellmate that they had not engaged in sexual acts, since engaging in actual sexual acts was not the specific charge. The prisoner's rights were also not violated by the failure to provide him with video footage on the hallway outside his cell, showing the activities of two officers, since the tape did not depict the prisoner's actions inside the cell which were the basis of the charges against him. The disciplinary action against the prisoner was supported by "some evidence" in the record, and the prisoner was also not prejudiced by the failure to provide him with a copy of an incident report written by one of the officers, since it did not differ substantially from another officer's incident report that he did receive. Pachtinger v. Grondolsky, #09-2543, 2009 U.S. App. Lexis 16627 (Unpub. 3rd Cir.).

Prisoner Suicide

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

     Two police officers transporting a detainee to civil protective custody experienced her wrapping a seatbelt around her neck in an attempt to choke herself, followed by her screaming that they should kill her or else she would kill herself. They allegedly failed to report this to jail personnel or to take her to a hospital, and she was released from custody a few hours later. The following day, based on a misdemeanor charge, she was detained again, and subsequently, less than forty-eight hours after her initial suicide threats, she hung herself in her cell and died. Overturning summary judgment for the defendant police officers in a federal civil rights lawsuit over the suicide, a federal appeals court found that a reasonable jury could have decided that their failure to report the suicide attempt and threats rendered subsequent medical evaluation at the facility ineffective, and that the suicide might have been prevented by effective medical intervention, had these facts been known. Conn v. City of Reno, #07-15572, 2009 U.S. App. Lexis 16348 (9th Cir.).

     An inmate on suicide watch at a county detention facility, having previously attempted suicide, killed himself by hanging himself in his cell with a blanket given to him by a guard after he complained of being cold. The trial court properly dismissed claims against various "John Doe" defendants when the plaintiff failed, after ten months of extensive discovery, to identify these individuals. The appeals court also ruled that the guard's action did not show that the facility engaged in deliberately indifferent training or supervision. Blakeslee v. Clinton County, #08-4313, 2009 U.S. App. Lexis 15483 (Unpub. 3rd Cir.).

     A prisoner who suffered self-inflicted serious injuries from several suicide attempts was entitled to the appointment of counsel in pursuing his lawsuit asserting that his injuries were the result of untreated mental illness. Prison medical records appeared to support his claim that he suffered from serious mental illness, a learning disability, and functioned on a "borderline intellectual level." In denying the appointment of counsel, the trial court abused its discretion by failing to examine the prisoner's competency to litigate his case. Matz v. Frank, #08-3388, 2009 U.S. App. Lexis 16585 (Unpub. 7th Cir.).

Religion

     A prisoner sued a correctional sergeant, other prison employees, and a prison superintendent, claiming that his First Amendment rights were violated when the sergeant allegedly ordered him, pursuant to prison policies, not to publicly display beads that the inmate wore for religious reasons. Without determining whether the prisoner had a valid claim against the sergeant or against the superintendent who denied the inmate's grievances over the issue, the court held that the prisoner failed to show that other prison employees were sufficiently individually involved in the alleged deprivation to be subject to individual liability. Additionally, any money damages claim against any defendants in their official capacity was barred by the Eleventh Amendment. Colon v. Zydell, #07-CV-6490, 2009 U.S. Dist. Lexis 62838 (W.D.N.Y.).

     A prison grooming policy that forced an inmate to shave his head in contradiction with his sincerely held religious beliefs substantially burdened his right to freely exercise his religion. Correctional defendants failed to establish that the policy was the least restrictive means of furthering compelling governmental interests in hygiene, security, and space utilization, as required under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. §§ 2000cc to 2000cc-5. The appeals court upheld, however, summary judgment on excessive force claims and claims concerning the quality of prison ventilation and water. Smith v. Ozmint, #07-6558, 2009 U.S. App. Lexis 16989 (4th Cir.).

Sexual Assault

     There were sufficient facts alleged to allow a prisoner to proceed on her claims that prison officials failed to adequately train, supervise, or investigate a prison guard's alleged yearlong sexual encounters with her. The court declined to accept the defendant officials' argument that they were entitled to qualified immunity on the basis that the plaintiff prisoner had denied a sexual relationship existed when she was questioned. The prisoner's environment was "fully controlled" by the officials and they had a "wide range" of methods to investigate repeated reports of sexual misconduct and to monitor her activities. The plaintiff, while a prisoner, was subject to "coercive dynamics" frequently present among the incarcerated. Chao v. Ballista, #07cv10934, 2009 U.S. Dist. Lexis 56948 (W.D. Mass.).

Strip Searches: Prisoners

     In a class action involving as many as 500,000 individual searches, a federal jury found that county jail employees violated the law in the manner in which they conducted strip searches of detainees. The lawsuit claimed that strip searches of male prisoners were conducted in groups standing naked side by side, did not require reasonable suspicion that contraband would be found, and included jail personnel using derogatory language or making "sex noises" in a degrading fashion while detainees bent over. A separate jury will determine the damages to be awarded to class members. Young v. Cook County, #06-552, (U.S. Dist. Ct., N.D. Ill., August 14, 2009). Some of the documents in the case are available online at the website of the plaintiffs' attorneys.

     A woman's claim that she was illegally subjected to a strip search at a county detention facility could go forward when she was never placed in the general population, even briefly, and there was no indication of a reasonable suspicion that she was in possession of weapons, drugs, or contraband. A federal appeals court rejected the defendants' argument that it was not clearly established, at the time of the incident in question, that a strip search, under these circumstances, was unlawful. Myers v. James, #09-7001, 2009 U.S. App. Lexis 15848 (Unpub. 10th Cir.).

Voting

     A prisoner claimed that new Massachusetts laws that disenfranchised imprisoned felons, violated 42 U.S.C. Sec. 1971, the Voting Rights Act, in that they allegedly have a disparate impact on minorities, given that a greater percentage of minorities were incarcerated. The court found that Congress did not intend the Voting Rights Act to apply in this context, and that laws disenfranchising felons are "deeply rooted" in U.S. history and laws, and in the Constitution. The laws also do not violate the prohibition on ex post facto laws as they do not constitute punishment, since there are non-punitive purposes for the disenfranchisement, and they are a part of a civil regulatory scheme for voting. Simmons v. Galvin, #08-1569, 2009 U.S. App. Lexis 17012 (1st Cir.).

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    Female Prisoners: From Prison to Home: Women's Pathways In and Out of Crime. NCJ 226812, 244 pgs., May 2009, Grant Report, by Jennifer E. Cobbina.

     Female Prisoners: National Directory of Programs for Women Offenders. Aug 6, 2009. The National Institute of Corrections, in partnership with the Women's Prison Association, has developed an online directory of programs for women offenders. This nationwide resource provides profiles of programs and services for women at all stages of criminal justice involvement, both in correctional facilities and in the community.

     Female Prisoners: Women's Prison Association Resource Library Bibliography. 16 pgs. .pdf.

     Medical Care: Pandemic Influenza Preparedness and Response Planning: Guidelines for Community Corrections. Bureau of Justice Assistance and the American Probation and Parole Association, August 2009. This document provides guidance to community corrections for developing preparedness and response plans for pandemic flu and other crises.

     Electronic Weapons: Conducted Energy Devices: Use in a Custodial Setting. Bureau of Justice Assistance, Police Executive Research Forum, and National Sheriffs' Association, August 2009. The report discusses the survey results to determine the extent to which sheriffs' offices are using the devices and have developed policies on CEDs and also provides general guidelines for the use of CEDs and other electronic devices in custodial settings.

     Youthful Prisoners: The Impact of Incarceration on Young Offenders. NCJ 227403, 179 pgs., April 2009, Grant Report, by Kristy N. Matsuda.

 Reference:

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

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