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Access to Courts/Legal Info

     A prisoner claimed that a sheriff's department sergeant deprived him of his right of access to the courts, limiting his ability to bring a habeas petition because a property bag containing some legal materials was stolen, misplaced or lost. The prisoner failed, however, to clearly explain what he lost and why he thought the facts contained would have made his habeas petition more convincing. The loss of the material did not prevent him from unimpeded access to the courts, and he had access to a law library, managing to file his petition. It was pure speculation that it might have been more convincing if he had his property bag. Belle v. Strange, #09-40126, 2009 U.S. App. Lexis 20484 (Unpub. 5th Cir.).

     An inmate did not show that an officer denied his constitutional right of access to the courts by allegedly fraudulently refusing to accept service of the prisoner's lawsuit. Since the prisoner had been allowed to file his lawsuit as a pauper, he was already in court when the officer's alleged actions took place. The prisoner could have sought relief against the officer in his earlier lawsuit on his claim that the refusal of service was fraudulent, but having failed to do so, he could not pursue a new lawsuit for denial of access to the courts. The appeals court also noted that the prisoner failed to appeal the dismissal of his original lawsuit, thereby forfeiting any right to complain further. Wiggins v. Logan, #08-3102, 2009 U.S. App. Lexis 21101 (Unpub. 3rd Cir.).

Chemical Agents

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

     A guard used a burst of oleoresin capsicum (O.C.) spray against a prisoner who made an aggressive move toward an officer while being escorted from his cell to be searched for contraband. The action took place after the prisoner had also disobeyed a direct order. After the incident, the prisoner was kept in four-point restraints for three and a quarter hours. Rejecting claims of excessive force, a federal appeals court found that jail personnel properly regarded him as a dangerous, high-risk prisoner in light of a past history of escape, and found that the use of the O.C. spray was proper under the circumstances. The court also found no evidence that the cell where the plaintiff was restrained was poorly ventilated or small, or that the defendant guards, who did not try to wash the spray off of him, knew that he claimed to be experiencing continued discomfort from the spray. Scroggins v. Davis, #07-15514, 2009 U.S. App. Lexis 21383 (Unpub. 11th Cir.).

Disability Discrimination: Prisoners

    California state prisoners sought an order requiring state correctional officials and other state officials to track and accommodate the needs of class action members with disabilities housed in county jails. The court granted the order. State responsibilities under federal disability discrimination statutes to provide access to facilities and programs could not be avoided by entering into contracts with county jails to house state prisoners. Armstrong v. Schwarzenegger, #C 94-2307, 2009 U.S. Dist. Lexis 91494 (N.D. Cal.).

Federal Tort Claims Act

     A federal prisoner failed to establish a claim for cruel and unusual punishment under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2401 et seq., since he did not make a showing of physical injury as required by 28 U.S.C.S. § 1346. Michtavi v. U.S.A., #09-2094, 2009 U.S. App. Lexis 20872 (Unpub. 3rd Cir.).

First Amendment

     An inmate who allegedly granted media interviews beyond the scope of the Bureau of Prisons' permission claimed that a county sheriff and the BOP director violated his First Amendment rights by denying him good time credits as a result of violating rules restricting such interviews. His home confinement was also revoked as a result of the rules violation. A federal court found that his free speech rights were not violated since there were legitimate penological interests in control of whom he came into contact with during his home confinement, and he did have other ways of communicating with the media. The court also rejected a due process claim, noting that he clearly violated a rule he agreed to in his electronic monitoring contract that required prior approval of all media interviews. Hatch v. Lippin, #09-11490, 2009 U.S. Dist. Lexis 93880 (D. Mass.).

     A prison official was not entitled to summary judgment on a prisoner's claim that he violated his First Amendment rights by including, in his denial of a grievance, an admonition that the prisoner should be careful what he wrote on his grievances. There were legitimate factual issues as to whether this "chilled" the prisoner's rights and whether it was related to legitimate correctional goals. Brodheim v. Cry, #07-17081, 2009 U.S. App. Lexis 23721 (9th Cir.).

Frivolous Lawsuits

     A prisoner claimed that he suffered an Eighth Amendment violation because prison employees verbally harassed him, tried to place him in a chow hall seating area where he could have been attacked by other prisoners, and "stared" at him for approximately five minutes when he was tied down to his bed wearing only boxer shorts, with his legs spread apart. Finding these claims frivolous, the court noted that he did not claim physical injury, did not show any indication of a use of excessive force, and did not show that a defendant made any comments to him of a sexual nature. The court also rejected the prisoner's First Amendment claims regarding the handling of his mail, finding that allegedly crossing out the Zip code on a letter he mailed did not amount to a constitutional violation, and that he suffered no harm from the alleged opening of his legal mail. Crownhart v. Sullivan, #08-1483, 2009 U.S. App. Lexis 21814 (Unpub. 10th Cir.).

Inmate Funds

     From the record, the court was unable to determine whether a notice a prisoner received concerning funds withdrawn from his inmate account was constitutionally adequate, and whether current Pennsylvania correctional policies regarding the withdrawal of such funds satisfied constitutional requirements of sufficient notice and an opportunity to respond. Further proceedings were ordered. Montanez v. Beard. #06-3520; 2009 U.S. App. Lexis 20038 (Unpub. 3rd Cir.).

Medical Care

     Prison medical personnel did not act with deliberate indifference in delaying ordering Amitriptyline pain medication until first verifying his condition of peripheral neuropathy in his lower extremities and the prescription with his neurologist. There was also no evidence that doctors were aware of any harm caused by a delay in an eye appointment. A prison grievance officer was entitled to rely on the opinions of medical personnel in responding to the prisoner's grievance regarding his medical treatment. Williams v. Guzman, #08-2167, 2009 U.S. App. Lexis 21913 (Unpub. 7th Cir.).

     Evidence presented could support the finding that a supervisor learned that a detainee, who subsequently suffered a fatal heart attack, was complaining of chest pains. While it may have initially been reasonable to discount this, given a jail employee's statement that the detainee's pain was on the wrong side of his chest for a heart attack, it soon became obvious that the detainee needed immediate medical attention. The supervisor received notification that he was pale, clutching his chest, and that other prisoners were saying that he was having a heart attack. The supervisor, in moving him to an observation cell, took a proper first step, but then allegedly failed to try to communicate with him after the move, merely looking at him from time to time through her window to see if he was still alive. She was not entitled to qualified immunity in a lawsuit claiming deliberate indifference to a serious medical need. Weatherford v. Taylor, #09-7018, 2009 U.S. App. Lexis 21812 (Unpub. 10th Cir.).

     A prisoner who suffered from an enlarged prostate condition and chronic blood clotting in his leg failed to show that a prison doctor acted with deliberate indifference. The doctor prescribed medication and monitoring, ordered a consultation with a urologist, ordered a biopsy, and ultimately had him taken to a hospital where he was diagnosed with renal failure and sepsis. Ultimately, he underwent prostate reduction surgery. The evidence showed an exercise of medical judgment in treating and monitoring the prisoner. Any evidence showing a difference in medical opinion from another doctor or potential errors in medical judgment might indicate, at worst, gross negligence, which was insufficient for a constitutional claim of deliberate indifference. Fischer v. Fed. Bureau of Prisons, #08-16134, 2009 U.S. App. Lexis 21079 (Unpub. 11th Cir.).

Medical Care: Mental Health

     In a lawsuit filed by the sister of a detainee who successfully committed suicide, a federal appeals court upheld a finding of no liability on civil rights claims against the county, but reversed summary judgment for a psychiatrist under contract with the jail on a medical malpractice claim. The psychiatrist, who was consulted by jail personnel on the detainee's prescriptions, tried to meet with him for a psychiatric examination, but the detainee became "highly agitated" and refused to speak with him in front of a jail officer. The psychiatrist believed that this was a manic episode and discontinued an antidepressant medication to attempt to deal with it. For purposes of the medical malpractice claim, this was a treatment decision, resulting in a duty of care. Whether the psychiatrist violated the applicable standard of care and whether this proximately caused the detainee's death required further proceedings to determine. While it was clear that the jail's express policy required the presence of a jail officer during the interview with the psychiatrist, this was not a violation of the detainee's constitutional rights. Hunter v. Amin, #08-3719, 2009 U.S. App. Lexis 21731 (7th Cir.).

     Prison officials did not act with deliberate indifference to a prisoner's mental health needs in downgrading his mental health status and having him placed in the general population, where he harmed himself. There was no established protected liberty interest in a prisoner's mental health classification. Rather than showing deliberate indifference, the actions taken merely reflected a difference of opinion about the care that the plaintiff needed. West v. Higgins, #08-11309, 2009 U.S. App. Lexis 21057 (Unpub. 11th Cir.).

Prison and Jail Conditions: General

     The plaintiff inmate did not face atypical hardships based on any of the conditions of a Behavioral Action Plan, such as denying him a mattress because of his attempts to use it to harm himself, so he had no valid due process claim. The conditions imposed also did not amount to cruel and unusual punishment, since they were not punitive, but instead intended to protect him from self-harm, and were regularly re-evaluated. The prisoner also failed to show an excessive use of force based on an incident in which guards attempted to subdue him using five-point restraints, incapacitating agents, and a Taser. Bowers v. Pollard, #09-1771, 2009 U.S. App. Lexis 20855 (Unpub. 7th Cir.).

Prison Litigation Reform Act: Attorneys' Fees

     After a jury awarded a prisoner $17,500 in damages on a federal civil rights claim against a prison guard, the trial court awarded him $26,250 in attorneys' fees. The appeals court upheld the attorneys' fee caps in the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d), rejecting an argument that they denied prisoners equal protection of the law as compared to non-incarcerated persons. Parker v. Conway, #08-2764, 2009 U.S. App. Lexis 20723 (3rd Cir.).

Prisoner Assault: By Officer

     In a prisoner's lawsuit over the alleged excessive use of force by a correctional officer, several supervisory officials could not be held liable since they did not participate in the events allegedly causing the prisoner injuries. Another official was entitled to qualified immunity as the prisoner himself stated that he responded in a timely manner to the alleged incident. Thompson v. Johnson, #08-10614, 2009 U.S. App. Lexis 21974 (Unpub. 5th Cir.).

Prisoner Classification

     A number of inmates claimed that prison officials violated their rights by classifying them as associated with members of the Prison Motorcycle Brotherhood and refusing to grant them access to their files for the purpose of reviewing and challenging their classification. The appeals court upheld dismissal of claims regarding their classification, as they failed to show that the officials had participated in their classifications. The prisoners also failed to show how access to their personal files would affect any due process right they had. Jenner v. Backus, #09-1093, 2009 U.S. App. Lexis 17618 (Unpub. 10th Cir.).

Prisoner Discipline

     Even if aspects of a disciplinary hearing arguably violated Indiana disciplinary procedures, this was insufficient to show a violation of federal civil rights. The court also rejected a federal due process claim, finding that the presence of the prisoner's name on a forged document found in a copy machine was sufficient to support a determination that he forged the document in violation of prison rules. The alleged failure to call a witness that the prisoner had requested did not show a violation of his rights when he failed to state what the witness would have said or how it would have helped him. Boyd v. Finnan, #08-3685, 2009 U.S. App. Lexis 22295 (Unpub. 7th Cir.).

     A prisoner claimed that a letter he wrote to his girlfriend had been "stolen" from his cell and improperly used in a disciplinary hearing against him. The court pointed out that the Fourth Amendment protection against unreasonable searches and seizures did not apply in the context of a prison cell. The prisoner failed to show any interference with his right of reasonable correspondence with the outside world. He failed to show any due process violation, as the sanctions imposed were not an atypical or significant hardship. Perry v. Lackawanna County, #09-2403, 2009 U.S. App. Lexis 20781 (Unpub. 3rd Cir.).

Prisoner Restraint

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

     A prisoner claimed that her constitutional rights were violated when she was shackled to a bed while she was giving birth. A state corrections department director was entitled to qualified immunity from liability because he was not personally involved in the incident and had not established any policies to require or encourage the shackling of pregnant prisoners. A corrections officer directly involved in the shackling, however, was not entitled to qualified immunity, given that she stated that the prisoner, who was a non-violent offender, had not done or said anything to indicate that she was an escape risk or that she posed any other threat. There was evidence from which a fact finder could decide that the officer, in shackling the prisoner's ankles to opposite sides of a hospital bed during the final stages of labor, acted with deliberate indifference to her serious medical needs. She allegedly knew that the prisoner had severe pain, that the labor was risky, and that hospital personnel had requested that she be unshackled. The officer also allegedly failed to abide by administrative regulations requiring her to balance medical and security concerns in deciding whether to shackle the inmate. At the time of the incident, September of 2003, the prisoner's right to be free from unnecessary suffering was clearly established. Nelson v. Correctional Medical Services; #07-2481, 2009 U.S. App. Lexis 21730 (8th Cir.).

     A prisoner claimed that he had been denied a fair trial because he was tried in leg restraints. In light of the fact that the prisoner was an already convicted person being tried for a murder committed in prison, and that a number of other convicted prisoners testified at his trial, any error in having him shackled during the trial was harmless. Further, evidence of his guilt was "overwhelming," including evidence that he beat the victim in front of numerous witnesses and continued to beat him after he fell. The prisoner himself did not deny the beating, and the victim was handcuffed at the time. Since the jury clearly knew that he was a prisoner, viewing him in leg restraints did not prejudice him. Tamez v. Thaler, #08-40615, 2009 U.S. App. Lexis 20231 (Unpub. 5th Cir.).

Prisoner Transfer

     The chronology of events surrounding a prisoner's transfer to a new facility was sufficient to assert a possible claim for retaliatory transfer against a deputy warden. The prisoner claimed that the defendant transferred him for filing a grievance against him. Williams v. Brown, #08-16230, 2009 U.S. App. Lexis 20193 (Unpub. 11th Cir.).

Religion

     A federal appeals court ordered that, on remand, after considering whether requested religious items were for a sincerely held religious belief or practice in the Wiccan religion, the trial court determine whether access was denied to them for legitimate penological interests and consider possible alternative accommodations and the impact they would have on prison resources. McAlister v. Livingston, #08-20297, 2009 U.S. App. Lexis 22018 (Unpub. 5th Cir.).

    Prisoners claimed that they were denied the right to practice their religion, Tulukeesh, requiring adherents to engage in sparring and prohibiting them from appearing nude in front of non-members. They are also allegedly required to eat a non-soybean based vegan diet. A federal appeals court found that restrictions on sparring and limiting the practice of Tulukeesh to individual cells, as well as mandatory strip frisks on certain occasions were supported by legitimate security concerns. Further proceedings were required, however, on the alleged denial of the prisoners' requested religious diet, as the defendant prison officials failed to show that the religious meatless alternative menu offered was the least restrictive means of furthering compelling administrative interests. Jova v. Smith,  #08-2816, 2009 U.S. App. Lexis 21205 (2nd Cir.).

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     Children of Prisoners: Children of Incarcerated Parents: An Action Plan for Federal Policymakers (2009), a report by the Council of State Governments (CSG) Justice Center. The plan outlines promising practices and 70-plus recommendations for improving outcomes for the more than 1.7 million children of incarcerated parents.

     Jail and Prison Conditions: A U.S. Justice Department study of conditions at Orleans Parish jail in New Orleans concludes that they violate inmates' constitutional rights, including through use of excessive force by staff and insufficient protection of prisoners from violence from fellow prisoners. Other problems with medical services, restraint of mentally ill prisoners, and procedures for suicide prevention are also discussed. (Sept.2009)

     Juvenile Prisoners: Until They Die a Natural Death, by The Children's Law Center of Massachusetts (Sept. 2009). A study of life sentences without parole for juvenile prisoners convicted of murder in Massachusetts.

     Terrorism: Radicalization of U.S. prisoners by Bert Useem, Obie Clayton, August 2009 issue of Criminology and Public Policy, pgs. 561-92. "Concern has been expressed that prisoner radicalization poses a high probability threat to the safety of the United States. Although the threat of terrorist acts planned in prison is known to be above zero because of a nearly executed terrorist plot hatched in a state prison, the central finding of this research is that the actual probability is modest. The reasons for a modest probability are fourfold: Order and stability in U.S. prisons were achieved during the buildup period, prison officials successfully implemented efforts to counter the 'importation' of radicalism, correctional leadership infused antiradicalization into their agencies, and inmates' low levels of education decreased the appeals of terrorism."

Reference:

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

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