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Access to Courts/Legal Info

     Prisoner failed to establish a denial of access to the courts based on failure to grant him requested library time when he could not show that he had suffered any actual injury to his ability to litigate his claims. He also failed to show that disciplinary actions taken against him was in retaliation for his pursuit of his claims. Bandey-Bey v. Crist, No. 08-2084, 578 F.3d 763 (8th Cir. 2009).

     A prisoner failed to show that officials' alleged withholding of his legal mail caused any actual injury to his appeal from his criminal conviction, justifying the dismissal of his claim for interference with his right of access to the courts. Brooks v. Scherf, #2:09-CV-12377, 2009 U.S. Dist. Lexis 55383 (E.D. Mich.).

AIDS Related

     An HIV-positive inmate claimed that prison personnel violated his Eighth Amendment rights by denying him medical treatment for a blood condition called pancytopenia. The court found that any delay was in obtaining a diagnostic test, and that the prisoner failed to show that he was actually denied treatment, or even that there was an existing treatment available for pancytopenia. The prisoner did not claim that his HIV went untreated. Summary judgment was properly granted to a prison physician and to the manager of the prison's health service unit. Simpson v. Suliene, #09-1047, 2009 U.S. App. Lexis 16636 (Unpub. 7th Cir.).

Disability Discrimination: Employees

     A woman employed as a physician's assistant by the Utah Department of Corrections claimed that she was subjected to disability discrimination when the department added to her job requirements, and to other jobs requiring inmate contact, a physical safety training requirement that she was unable to complete because of physical restrictions. The court found that a job function that is "rarely required" in the normal course of an employee's duties can still be an "essential" job function, and that in this case, the employee was not entitled to demand that her job duties not include this essential function. The potential consequences of employing an employee in a job involving inmate contact who could not complete the training was "sufficiently severe" to mandate this result. In this case, the employee suffers from lupus, osteoarthritis, rheumatism, avascular necrosis, Sjögren’s syndrome, and fibromyalgia. She also had both hips replaced and underwent surgery on her left shoulder. Because of these medical problems, she could not complete the required training,  She was offered a job elsewhere where such training was not required, at a location 100 miles from her home, and was told, in the alternative, that she would be terminated. She was ultimately fired. Rejecting the argument that this amounted to disability discrimination, the court noted that the department's fears "regarding the physical safety of its medical and clinical staff were realized in 1999, when a medical technician was attacked by an inmate during the course of her duties." This incident led to the training requirement, which the court upheld. Hennagir v. Utah Dep't of Corr., #08-4087, 2009 U.S. App. Lexis 20163 (10th Cir.).

Disability Discrimination: Prisoners

     A prisoner who suffered from a blood clot in his left eye failed to assert a viable disability discrimination claim since the record showed that he was provided with meaningful access to prison programs and facilities. The prisoner also failed to show that the manager of a prison housing unit acted with deliberate indifference to his serious medical needs. Indeed, there was no admissible evidence even showing that the defendant was aware of his blood clot. Mason v. Correctional Medical Services, Inc., #.07-2814, 2009 U.S. App. Lexis 6068 (8th Cir.).

First Amendment

     While there had been "some issues" concerning the plaintiff prisoner's allegedly excessive book requests through the prison library system, he failed to show that the defendant library director had anything to do with the problem, or that the defendant conspired with other prison employees to retaliate against him for filing a grievance, in violation of his First Amendment rights. Zulu v. Botta, #05-CV-6529, 2009 U.S. Dist. Lexis 40762 (W.D.N.Y.).

Indemnification

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

     In a lawsuit brought by a detainee's estate over a fatal beating by officers, a jury awarded $56.5 million in damages against the officers, of which $29 million were compensatory damages. The county that employed the officers provided them with legal defense in the case. Over a year after the jury made its award, an amendment to an Indiana state statute, Ind. Code § 34-13-4-1, changed a discretionary duty of counties to indemnify employees for compensatory damages when providing them with legal defense to a mandatory requirement. The estate sought to collect the damages from the county under the amended law. A federal appeals court found that the law in effect at the time of the award allowed the county to decline to pay the damages, and that the mended law did not apply retroactively. Estate of Moreland v. Dieter, #08-1478, 2009 U.S. App. Lexis 17866 (7th Cir.).

Inmate Funds

     An inmate claimed that the Pennsylvania Department of Corrections' imposition of co-pay fees for medical treatment violated state law and regulations, as well as his constitutional rights. Upholding the deduction of the co-pay fee from the prisoner's account for treatment of his chronic skin condition, the court found that the payment requirement was not such an atypical and significant hardship as to constitute a constitutional violation, and also rejected state law claims. Portalatin v. Department of Corrections, #569 M.D. 2008, 2009 Pa. Commw. Lexis 1072.

     A prisoner voluntarily enrolled in the Bureau of Prisons' Inmate Financial Responsibility Program and agreed to pay $70 a month in restitution. The terms of his sentence provided that restitution was immediately payable, and that, upon any term of supervised release, he would have to pay at least $100 month towards any unpaid part of the restitution. He subsequently filed a motion in the sentencing court to have the payments suspended or reduced to $25 quarterly. A federal appeals court found that the prisoner's request could not be granted. All challenges to BOP administrative programs must be filed in the federal court in the district where the prisoner is incarcerated, rather than the sentencing court, and must be filed under 28 U.S.C. Sec. 2241. Further, such a challenge may only be pursued after the inmate has exhausted available administrative remedies, which the plaintiff had not done. U.S. v. Diggs, #08-10658, 578 F.3d 318 (5th Cir. 2009).

Medical Care

     A detainee's temporary segregation in a medical unit was intended as part of the treatment of his eye infection, and to prevent the spreading of the infection, rather than as punishment. There was no evidence of any link between the prisoner filing grievances about the purported delay in treatment for his eye infection and any alleged adverse action taken against him by correctional employees, such as use of abusive language, threats, or physical abuse. Bendy v. Ocean County Jail, #07-1421, 2009 U.S. App. Lexis 16259 (Unpub. 3rd Cir.).

     In an inmate's lawsuit over alleged inadequate medical treatment for his chronic ear problems, the court found that earplugs were prescribed by a doctor, and that there was no evidence that the confiscation of the earplugs was carried out for any legitimate medical or security reasons. The inmate suffered adverse consequences as a result. Claims as to the first confiscation of the earplugs were dismissed because of his failure to file a grievance concerning it, but the plaintiff could go forward with his claims concerning a subsequent confiscation, Jackson v. Carroll, #03-1031, 2009 U.S. Dist. Lexis 68390 (D. Del.).

     An inmate suffering from hepatitis claimed that he did not receive a needed liver biopsy or treatment for hepatitis C with either interferon or ribavirin. The court found that no medical providers believed that either a liver biopsy or treatment with interferon or ribavirin was necessary, that the inmate's liver function was within normal limits, and that summary judgment should be awarded to the defendants. Palmer v. Carroll, #06-576, 2009 U.S. Dist. Lexis 69292 (D. Del.).

     A Wisconsin prisoner who began spitting up blood and experiencing abdominal pain claimed that he suffered severe pain from an improperly inserted IV line and the failure of ambulance personnel and hospital personnel to adequately respond to his complaints. A federal appeals court noted that federal civil rights liability may be imposed on private parties when they contract with government to provide medical services to inmates. The court ordered that discovery be conducted to discover the names of the personnel the inmate claimed acted with deliberate indifference towards his serious medical needs. Rodriguez v. Plymouth Ambulance Service, #06-4260, 577 F.3d 816 (7th Cir. 2009).

Medical Care: Mental Health

     An inmate failed to show that a prison psychiatrist failed to provide him with needed treatment or disregarded a known risk of harm he faced. He also failed to show that the psychiatrist conspired with prison officials to unlawfully revoke his single-cell status or that placing him in a double-cell subjected him to an atypical and significant hardship. His claims that he suffered from depression, paranoia, and physical discomfort were not serious enough to show an Eighth Amendment violation. Hodges v. Wilson, #08-4868, 2009 U.S. App. Lexis 17828 (Unpub. 3rd Cir.).

Prison and Jail Conditions: General

     A correctional officer was found, by a jury, to have deprived a prisoner of the "minimal civilized measure of life's necessities" by compelling him to sleep on an unsanitary mattress for about two months. The trial court declined to set aside the jury's verdict, finding that the evidence presented was consistent with a finding of deliberate indifference in violation of the Eighth Amendment. The officer, however, would be entitled to a new trial on damages unless the plaintiff prisoner would accept a reduction in the punitive damages of $295,000 awarded to $29,500. Townsend v. Allen, #05-cv-204, 2009 U.S. Dist. Lexis 9911 (W.D. Wis.).

Prison Litigation Reform Act: Attorneys' Fees

     Limitations on attorneys' fee awards contained in 42 U.S.C. Sec. 1997e of the Prison Litigation Reform Act are constitutional because they are based on legitimate governmental objectives, including achieving uniformity in such awards. Parker v. Conway, #08-2764, 2009 U.S. App. Lexis 20723 (3rd Cir.).

Prisoner Assault: By Inmate

     A prisoner claimed to have reported that he received a letter saying that a prison gang had called for a "hit" on him because documents in his cell were used to prosecute a gang member for a murder. Prison officials decided not to place him in protective custody, instead transferring him to another facility, believing that the threat to him was localized to the institution. When he was attacked by gang members six months later in his new facility, he sued a prison official for failing to take adequate measures to protect him. A federal appeals court found that the defendant was not entitled to qualified immunity, because there was evidence that he was aware of facts from which it could be inferred that that the prisoner faced a serious risk of harm, and that the defendant actually made that inference. He allegedly disregarded knowledge that gang "hits" could be transferred to other facilities, and recommendations that the prisoner be placed in protective custody. Hamilton v. Eleby, #08-4499, 2009 U.S. App. Lexis 18020 (Unpub. 6th Cir.).

     A deceased prisoner's estate failed to show that a correctional facility had constructive notice of another prisoner's attack on the decedent. The court found no liability for negligence and wrongful death in failing to prevent the attack and death. While the attacker did have a history of removing glass from windows, the incidents involving this, except for one, were all over ten years old, and none of these incidents led to violence against another prisoner. There was no indication of a propensity for violent attacks from which the facility should have been able to anticipate the attack. Elam v. Ohio Dept. of Rehabilitation and Correction, #2007-07728, 2009 Ohio Misc. Lexis 138 (Ohio Ct. of Claims).

Prisoner Assault: By Officer

     A federal appeals court upheld a jury's rejection of a prisoner's claim that a guard used excessive force against him, reaching into his cell and choking him. The guard denied even touching the prisoner. A federal appeals court upheld this result, finding that the trial court did not act erroneously in refusing to allow the plaintiff to, just before trial, attempt to add state law assault and battery claims to his federal civil rights excessive force claim, or in giving jury instructions stating that, for liability, the jury had to find a violation of Eighth Amendment rights. Cruz v. Safford, #08-3083, 2009 U.S. App. Lexis 19399 (7th Cir.).

     An inmate claimed that prison employees used excessive force against him and injured him while restraining him after he attacked them as they entered his cell. In light of his repeated threats and physical attack on them, he failed to show that the force they used was excessive. He also failed to show that he was denied needed medical treatment for injuries allegedly resulting from the incident. Thomas v. Owens, #08-20299, 2009 U.S. App. Lexis 15729 (Unpub. 5th Cir.).

     The amount of force used by officers in compelling a prisoner's compliance with a strip search was justified by his actions. He admitted to verbally refusing to comply with orders and beginning to pull up his boxer shorts. Even though he claimed to have only accidentally fallen on an intervening officer, the prisoner himself made statements indicating that he was aware the officers could have regarded this as an attack. His purported injuries only amounted to minor bruising and bumping. The defendant officers were entitled to summary judgment. Lyons v. Fields, #3:07cv86, 2009 U.S. Dist. Lexis 17345 (N.D. Fla.).

Prisoner Classification

     A psychiatrist, a psychologist, and an intern were entitled to absolute immunity on a prisoner's claims arising from their actions in preparing reports at the request of a state court that resulted in him being housed in a more restrictive special housing unit rather than in a "special needs unit." The defendants were functioning as n arm f the court in preparing the reports. Further, the prisoner did not have a constitutionally protected liberty interest in any particular classification. Lewis v. Pearsall, #08-786, 2009 U.S. Dist. Lexis 9707 (D. Del.).

Prisoner Death/Injury

     A federal prisoner asserted Eighth Amendment constitutional claims based on his slip and fall in the prison warehouse where he worked and the alleged failure to provide him with adequate medical care for resulting injuries. The trial court ruled that the exclusive remedy for the prisoner's on the job injuries were provided by the Inmate Accident Compensation Act (IACA), 18 U.S.C.S. § 4126(c)(4), so that his constitutional claim should be dismissed. The appeals court found that this basis for dismissing the injury claim could not be upheld, as a constitutional claim is different than a negligence injury claim, but thought that the claim should still be dismissed as the facts alleged by the plaintiff were inadequate to constitute an Eighth Amendment violation. The appeals court, however, remanded to the trial court instead for further initial consideration of the prisoner's constitutional claims. Harper v. Urbano, #08-1342, 2009 U.S. App. Lexis 18464 (Unpub. 10th Cir.).

     A prisoner claimed to have suffered injuries from falling on a broken grate cover while working in a prison kitchen. He claimed that prison officials wrongfully refused to fix the grate cover, refused to bring his meals to his cells to accommodate him after he was injured, and interfered with his right of access to the courts when they refused to prepare a written report concerning the incident. He also claimed that his medication was improperly delayed. A federal appeals court upheld summary judgment for the defendants, finding that the claim about the grate was a claim for negligence that could not support a federal civil rights claim, that the refusal to bring the prisoner's meals to his cell was consistent with his doctor's recommendations, that he failed to show how the absence of a written incident report prevented him from litigating over what happened, and that any claim concerning his medical treated merely showed disagreement over the proper course of treatment to be followed, rather than showing deliberate indifference. Gause v. Diguglielmo, #09-1454, 2009 U.S. App. Lexis 15743 (Unpub. 3rd Cir.).

Prisoner Discipline

     A prisoner's claim that he was disciplined for sending a note to another prisoner, which violated a legitimate regulation, was an insufficient basis for a claim of unlawful retaliation in violation of the First Amendment. The prisoner did allege sufficient facts to create a due process claim regarding the alleged denial of his right to call requested witnesses at his disciplinary hearing. He claimed that despite having requested these witnesses repeatedly before and during the hearing, an officer falsely wrote down that no witnesses were requested. No argument was presented that the witnesses were denied for reasons of institutional safety or other legitimate correctional objectives, and the requested witnesses appeared to have information relevant to the prisoner's claim that a correctional officer was spreading false rumors that h was a "snitch" and that some inmates had been bribed to testify falsely against him. Moulds v. Bullard, #08-10706, 2009 U.S. App. Lexis 18296 (Unpub. 11th Cir.).

Prisoner Suicide

     The temporary placement of the plaintiff prisoner in an observation cell because it was believed he might be suicidal did not violate the Eighth Amendment. The court also rejected claims based on the alleged failure to provide promised ambulatory aids and dietary supplements if the prisoner would end his hunger strike. The prisoner could proceed, however, on his claim that he was not provided with advance notice of a claimed disciplinary violation. Cox v. Clark, #07-16812, 2009 U.S. App. Lexis 7526 (Unpub. 9th Cir.).

Religion

     A Jewish prisoner sued over his temporary removal from a prison's kosher meal program. The appeals court found that claims for injunctive relief were moot because of the plaintiff's subsequent transfer to another facility, that a damage claim was barred against state officials under the Eleventh Amendment, and that the prisoner failed to show a relationship between the incidents he mentioned and his removal from the kosher meals program that would constitute unlawful retaliation for protected conduct in violation of the First Amendment. Berryman v. Granholm, #07-2081, 2009 U.S. App. Lexis 18068 (Unpub. 6th Cir.).

     South Dakota state officials were entitled to Eleventh Amendment immunity on money damages claims concerning the alleged denial of religious freedom to Jewish prisoners. Prison officials were entitled to summary judgment on claims that it violated a prisoner's right to religious freedom to deny his request to have a tape player in his cell to study the Hebrew language, and his request for additional group religious and language study time. Prisoners were denied access to tape players in their cells for security reasons, and the prisoner did not explain why the time provided for group religious study sessions was inadequate. Factual disputes over a prisoner's claim regarding his request to celebrate the week-long Jewish festival of Sukkot by eating meals outside in a succah (booth or tent) required further proceedings as did a claim that a prisoner suffered unlawful retaliation for filing the lawsuit. Van Wyhe v. Reisch, #08-1409 2009 U.S. App. Lexis 20235 (8th Cir.).

     Security concerns justified a limitation on medium security prisoners under which they could attend only one religious service a week. A claim for injunctive relief that the plaintiff prisoner, while on cell restriction, had been unable to attend any weekly religious services was moot because of a change in prison policy. Barnes v. Pierce, #08-40620, 2009 U.S. App. Lexis 15448 (Unpub. 5th Cir.).

Tasers, Stun Belts/Guns, and other Electronic Control Devices

     A guard who entered the cell of a hunger striking detainee user a Taser on him after the prisoner allegedly failed to comply with an order to get up from his bed. The prisoner claimed that he was merely unable to comply quickly because he was sluggish from the hunger strike and sick from ingesting Motrin. He claimed that the Taser was improperly used against him without warning before he could explain his failure to quickly comply. Further proceedings were ordered regarding the mental state of the officer who discharged the Taser, but claims against second officer present for failure to intervene were properly dismissed since there was, realistically, no opportunity to intervene. Lewis v. Downey, #08-2960, 2009 U.S. App. Lexis 19974 (7th Cir.).

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     Female Prisoners: A new law, Bill No. 3373-A, signed by New York's governor on August 26, 2009 generally prohibits the use of restraints on pregnant prisoners during childbirth, making it the sixth state to do so. The statute does allow a pregnant prisoner to be cuffed by one wrist while being transported to a hospital if she is thought to be a danger to herself or others. Texas, Illinois, California, Vermont and New Mexico are the other states with similar prohibition. Fact Sheet:" Shackling of Pregnant Women in Custody" The Rebecca Project for Human Rights (2009), which also has a memo on state shackling policies (Aug. 20, 2008). See also, "Laboring in Chains: shackling pregnant inmates, even during childbirth, still happens," Vol. 106 American Journal of Nursing, No. 10, pgs. 25-26 (October 2006).

     Immigration Detention: "Immigration Detention Overview and Recommendations," report by Dr. Dora Schriro (U.S. Department of Homeland Security, Immigration and Customs Enforcement, Oct. 6, 2009). Companion fact sheet: "ICE Detention Reform: Principles and Next Steps. Secretary Napolitano announces new immigration detention reform initiatives."

     Sexual Abuse and Assault: A 122 page report from the U.S. Justice Department's inspector general's office, "Review of the Department of Justice's Effort to Prevent Staff Sexual Abuse of Federal Inmates, Evaluation and Inspections Report I-2009-004, September 2009" indicates that over 100 federal corrections employees admitted to engaging in unlawful sex acts with prisoners, and that more than two dozen of them smuggled weapons or drugs into prison while attempting to cover up their actions. "Allegations of criminal sexual abuse and noncriminal sexual misconduct more than doubled from 2001 through 2008," the report says. "These allegations increased at a faster rate than either the growth in the prisoner population or the number of Bureau of Prisons staff."

 Reference:

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

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