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Chemical Agents

     An officer did not use excessive force in employing pepper spray to control an unruly inmate and compel him to comply with her orders. After he was pepper sprayed, he was examined by psychiatric staff members, who concluded that he should be placed on suicide watch, after which he was transferred to a floor where such prisoners were housed. The detainee had no due process right to a hearing prior to his transfer there. Sanchez v. McCray, #08-13503, 2009 U.S. App. Lexis 22800 (Unpub. 11th Cir.).

Disability Discrimination: Prisoners

     A prisoner's claim that he was denied a reasonable accommodation for his hearing loss in violation of his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was properly dismissed since the evidence of objective hearing tests indicated that the prisoner was faking a hearing loss and actually needed no accommodation. Smith v. Masterson, #08-2832, 2009 U.S. App. Lexis 25042 (Unpub. 2nd Cir.).

Employment Issues

     A nurse practitioner working as a contract worker established that a sheriff barred her from working at a county correctional facility after she informed the FBI of allegations of prisoner abuse at the facility, doing so by revoking her security clearance. A federal appeals court upheld an award of $360,000 in compensatory damages and $250,000 in punitive damages against the sheriff. The appeals court agreed with the trial judge's assessment that the jury could reasonably infer from the evidence that the sheriff had acted with, "at a minimum, conscious indifference to" the nurse's First Amendment rights Cabral v. US Dep't of Justice, #07-1633, 2009 U.S. App. Lexis 24811 (1st Cir.).

Inmate Funds

     A New York trial court granted a motion by the state crime victims board to enjoin distribution of the proceeds of a medical malpractice settlement to an inmate, in order to preserve the funds for possible distribution to the victims of his crimes. The prisoner then asked that he be paid at least 10% of the net settlement amount as he claimed was required by a state statute providing for an exemption. Reversing the denial of that request, an intermediate appellate court found that the statute in question applied to both funds received as a result of a judgment after litigation and to funds received as a settlement, rejecting a trial court opinion that it only applied to judgments after trial. Finding otherwise, the court noted, would punish litigants who settled lawsuits rather than pursuing litigation, which would violate the public policy of encouraging settlements. N.Y. State Crime Victims Board v. Gordon, #506884, 2009 N.Y. App. Div. Lexis 7417 (3rd Dept.).

Medical Care

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

    A pretrial detainee arrived at a county jail and died less than a week later from pneumococcal meningitis. In a federal civil rights lawsuit, his mother claimed that deliberate indifference to his serious medical needs caused his death. A verdict of $4.3 million was upheld on appeal as it applied to the county and its officers. Even after the detainee was found having convulsions on the floor of his cell, he allegedly did not receive immediate medical attention, and this was allegedly after he had been vomiting for days without medical care, and was unable to walk on his own. The court did find, however, that there was insufficient evidence to hold the county sheriff liable. The jury found that three individual correctional officers acted with deliberate disregard towards the detainee's medical needs, but no connection was shown to the sheriff's policies and practices, including his alleged understaffing of the jail. The county was still held liable, based on evidence sufficient to show that it "had a widespread policy of disregarding detainees’ medical requests." Thomas v. Cook County Sheriff's Dep't, #08-2232, 2009 U.S. App. Lexis 26086 (7th Cir).

     An inmate fell and was injured while trying to climb into his top bunk. He sued, blaming his injuries on a doctor, a nurse, and various prison officials for assigning him to a top bunk. The appeals court upheld a ruling that the prisoner had failed to show that he had a serious medical need for a lower bank. The doctor had found that the prisoner had no difficulty standing or walking, despite a history of injury and surgery which occurred twenty years before. Based on this, he did not meet the prison's criteria for a lower bunk assignment. The real cause of his injury was the collapse of the chair on which he was standing, resulting in an accidental fall. Summary judgment for the defendants was upheld. Robbins v. Black, #08-6207, 2009 U.S. App. Lexis 24244 (Unpub. 6th Cir.).

     An alleged five-year delay in identifying a prisoner's cancer was not the result of deliberate indifference to his serious medical needs, but simply based on an incorrect diagnosis by prison medical personnel. This error was insufficient to support a constitutional claim. The court also rejected claims based on an alleged subsequent delay of several months in providing treatment, or alleged inadequate dental care. The prisoner, at most, showed negligence, not a violation of civil rights. Fenlon v. Quarterman, #08-40653, 2009 U.S. App. Lexis 23614 (Unpub. 5th Cir.).

     After a prisoner injured his left knee when he fell while getting out of a shower, he was offered crutches and ibuprofen by a doctor, but refused them. After a follow-up appointment, the doctor ordered x-rays and a knee brace. He suffered additional knee injuries, and was prescribed crutches, as well as being told that surgery would not solve his knee problems. The prisoner failed to show inadequate medical care, since he saw medical personnel when he requested, and was provided with treatment for his knee problems. Additionally, his lawsuit named as defendants a medical director and a number of prison officials who had nothing to do personally with his medical treatment. Fails v. DeShields, #09-10404, 2009 U.S. App. Lexis 23277 (Unpub. 5th Cir.).

Medical Care: Mental Health

     A prisoner sought an injunction against being placed in a double-bunked cell. He had repeatedly refused orders to enter such a cell, and had been disciplined for these refusals. He claimed to suffer from "mental health issues" which would make double-bunking an "inhumane" condition of confinement and put him at substantial risk of harm from anxiety over the possibility of fights and violence. The trial court held that he had stated a possible Eighth Amendment claim, but that he had to produce some evidence of his purported mental health issues. The court rejected the plaintiff's due process and equal protection claims since he had no protected right to a single-bunk cell and had not been treated differently than other similarly situated inmates. Finally, the prisoner had no First Amendment right to "keep to himself" and refuse to be placed in a double-bunked cell. He was given 45 days to produce evidence of a mental illness justifying his alleged need not to be placed in a cell with another prisoner. Restucci v. Clarke, #09-10584, 2009 U.S. Dist. Lexis 106880 (D. Mass.).

Prison and Jail Conditions: General

     A prisoner established the objective component of an Eighth Amendment claim by alleging that his cell was infested with thousands of fire ants and that he was bitten by them over 200 times, suffering sizzling pain, burning, pus-filled blisters, and swollen appendages. The defendants were also properly denied qualified immunity, as he had alleged facts from which it could reasonably be concluded that they acted with deliberate indifference to these conditions, failing to transfer him to a new cell or to provide him with ant killing insecticide even after he was treated for the bites. Benshoof v. Layton, #09-6044, 2009 U.S. App. Lexis 23650 (Unpub. 10th Cir.).

Prison Litigation Reform Act: Attorneys' Fees

     Muslim inmates complained that they were only provided with Halal meat, produced in accordance with the requirements of their religion, twice a year, while Jewish prisoners received kosher meat four to five times a week. Prison officials agreed to provide Halal meat with the same frequency in exchange for the dismissal of the lawsuit, which the trial court approved. A federal appeals court ruled that the prisoners were prevailing parties, entitled to an award of attorneys' fees under 42 U.S.C. Sec. 1988, since they accomplished a "material alteration" on the complained of issue, and that the caps on attorneys' fees in the Prison Litigation Reform Act, 42 U.S.C. 1997e(d), applied to the case despite the fact that some of the plaintiffs were released from prison after they filed the lawsuit, but before it was settled. Fees of $99,658.48 were awarded. On remand, the trial court was instructed to determine a reasonable attorneys' fee award for the time spent on the appeal. Perez v. Westchester Cty. Dep't of Corr., #08-4245, 2009 U.S. App. Lexis 25396 (2nd Cir.).

Prisoner Assault: By Inmate

    After a detainee testified against a member of the Aryan Brotherhood of Texas (ABT), a white prison gang, he was allegedly attacked by another ABT member when he was placed in the general jail population as a pretrial detainee. After the attack, he was put into administrative segregation for his safety. In his lawsuit against jail officials over the attack, the detainee failed to show that the defendants knew of a substantial risk that he would be attacked by ABT members, so he could not show that they acted with deliberate indifference to his safety. He did, however, state a valid claim for deliberate indifference to his medical needs after the attack, asserting that the defendants knew he suffered from persistent pain, but delayed getting him under a doctor's care for a significant period of time. His placement in administrative segregation was not a violation of his rights, but done for his safety, and his placement in solitary confinement did not violate his due process rights. Perez v. Anderson, #08-10952, 2009 U.S. App. Lexis 23818 (Unpub. 5th Cir.).

     A prisoner failed to show that prison officials should be held liable for another prisoner's attack on him. The inmate who attacked him, while having a troubled past history, had recently completed an anger management program and earned his way into a preferred housing unit by his positive behavior, and the defendants had no reason to know of his dangerousness. Further, while the prisoner claimed that the supervisor of a restaurant management class at the prison was inciting other inmates against him because he had asked that the supervisor be fired, he did not request protection. The defendants' conduct did not amount to deliberate indifference to a known risk of assault. Norman v. Schuetzle, #08-1686, 2009 U.S. App. Lexis 26702 (8th Cir.).

Prisoner Assault: By Officer

     A correctional officer was improperly granted judgment as a matter of law on an excessive force claim. According to the plaintiff prisoner and another inmate, the officer stated that she was kicking him in retribution for his having assaulted another officer. At the time, the prisoner had already been taken to a more secure cell and was no longer attacking anyone. He also was allegedly still handcuffed after the move, and any threat he posed to the officers or anyone had ended, eliminating any justification for the continued use of force. Davis v. Berks County, #08-3026, 2009 U.S. App. Lexis 24925 (Unpub 3rd Cir.).

Prisoner Discipline

     A disciplinary hearing notice that stated the date and time when a corrections officer allegedly found a cellular phone in the prisoner's cell was sufficient and provided enough details to allow the prisoner to dispute the charges and claim that the phone was not his and that another prisoner had thrown it in his cell. While details about where in the cell the phone had been located would have been helpful, the absence of such details did not mean that the prisoner's rights were violated, as the officer's statement that the phone was in the inmate's assigned living area, along with a photo he took of that area provided some indication of this. The prisoner, who did not claim that he was unaware that possession of cell phones was prohibited, could not avoid discipline on the basis that he allegedly failed to receive a memo circulated by the warden explaining this. McGill v. Martinez, #09-1750, 2009 U.S. App. Lexis 22762 (Unpub.3rd Cir.).

Prisoner Restraint

    A woman died after being placed in four-point restraints and put into a vehicle face down for transport to jail. Upholding summary judgment for the defendant deputies and county in a federal civil rights lawsuit, the court, assuming the facts in the light most favorable to the plaintiff, assumed that the decedent died from positional asphyxia. The plaintiffs, however, failed to show that the use of the restraints was unnecessary, or excessively disproportionate to the resistance the deputies faced from the prisoner, so that no reasonable jury could have found that the deputies used excessive force to subdue her. The plaintiff also failed to sufficiently prove a claim for alleged inadequate monitoring of the prisoner during transport. Loggins v. Carroll County, Mississippi, #08-60516, 2009 U.S. App. Lexis 23730 (5th Cir.).

     Editor's Note: For a general discussion of some issues surrounding restraint and asphyxia, see Restraint and Asphyxia: Part One – Restraint Ties, 2008 (12) AELE Mo. L.J. 101 and Restraint and Asphyxia: Part Two – Compressional Asphyxia, 2009 (1) AELE Mo. L.J. 101.

Prisoner Suicide

     An arrestee taken to a county prison told officers that he had swallowed 10 to 12 oxycontin pills, resulting in him being placed under close observation. His privileges were gradually restored, but he committed suicide in his cell. His grandmother sued the county and prison employees, claiming deficient suicide prevention policies or practices led to his death and that there had been deliberate indifference to his serious medical needs. The plaintiff failed to show that the decedent had a particular vulnerability to suicide, according to the appeals court. The court believed that taking the drugs, cutting open a mattress, and putting a staple into or near his eye did not show such vulnerability, and that even his family and friends did not notice any change in his behavior that would appear to make him more likely to try to take his own life. Wargo v. Schuylkill County, #08-4802, 2009 U.S. App. Lexis 22279 (Unpub. 3rd Cir.).

     An arrestee placed in a county jail had problems with both anxiety and asthma. He was placed in a holding cell so that corrections officers could check on him from time to time. He hanged himself in his cell. It was subsequently learned that one officer had filled in the welfare check log after the fact, even though he lacked personal knowledge of when other officers had checked on the prisoner. A federal lawsuit over the prisoner's death resulted in summary judgment for the defendants. The administrator of the decedent's estate then filed a wrongful death lawsuit in Ohio state court. An Ohio appeals court ruled that there was insufficient evidence that the officers acted recklessly and were aware that their conduct would probably result in the suicide, so that summary judgment was granted for them   The court also rejected a claim for spoilation of evidence against the officer who filled out the welfare check log after the fact, noting that he did not destroy physical evidence or otherwise disrupt the lawsuit. Hope v. Lake County Board of Commissioners, #2008-L-173, 2009 Ohio App. Lexis 4982 (11th Dist.).

     Editor's Note: See Civil Liability for Prisoner Suicide, 2007 (2) AELE Mo. L.J. 301.

Race Discrimination

     An African-American prisoner claimed, among other things, that he had been denied a particular work assignment because of his race. He argued that he was similarly situated with medium security prisoners with a history of escape. However, while at that facility, he was a medium security prisoner serving a life sentence, and therefore was not similarly situated to the other prisoners he referred to. Additionally, he only made conclusory allegations of purposeful race discrimination, and, at most, showed only a discriminatory impact. His prior grievances had also failed to assert race discrimination claims, and instead argued that he was denied the work assignment at issue because of his life sentence. The defendants' motion to dismiss the lawsuit was granted. McKubbin v. Pettiford, #8:08-3248, 2009 U.S. Dist. Lexis 91529 (D.S.C.).

      An African-American motorist stopped for DUI was taken to a city jail based on a claim that there was a misdemeanor warrant for his arrest. He claimed that, at the jail, officers physically attacked him, causing him a spinal cord injury, and then dragged him into a cell where he was left until a civilian jail employee complained about his condition. A federal appeals court upheld the denial of summary judgment to the defendant officers on claims of race discrimination, excessive force, and delayed medical treatment, finding that a reasonable jury could conclude that the reason for the excessive use of force and delayed medical treatment was race. Harris v. City of Circleville, #08-3252, 2009 U.S. App. Lexis 21641 (6th Cir.).

Religion

    A Muslim prisoner failed to show how content restrictions and screening procedures for videotapes violated his religious freedom, and a ban on inmate personal possession of videotapes did not violate his First Amendment rights, since there were legitimate security concerns that the tapes could be used as weapons. The fact that Muslim services were offered in a generic way as opposed to being services for specific sects of Muslims was justified by compelling governmental interests, including security problems, staffing limitations, and space constraints. The prisoner also failed to show that the alternative food offered to Muslim prisoners violated the requirements of his Nation of Islam religion. Jones v. Shabazz, #08-20697, 2009 U.S. App. Lexis 24308 (Unpub. 5th Cir.).

Search and Seizure: Prisoners/Cells

     A prisoner complaining about a search of his cell and confiscation of his legal papers and other property failed to show a violation of his Fourth Amendment rights, since his status of incarceration meant that he had no right to privacy or protection from unreasonable searches. His due process rights were not violated, since there were adequate post-deprivation remedies for the seizure of his property, and he failed to show a violation of his First Amendment rights, since he alleged no actual injury that resulted from the removal of his legal papers and did not claim that the seizure of religious materials prevented him from observing any religious belief or practice. He also failed to show that there was a retaliatory motive for the search and a videotape of the search refuted any claim that an officer used excessive force in restraining the plaintiff. Tindell v. Beard, #09-3063, 2009 U.S. App. Lexis 24642 (Unpub. 3rd Cir.).

Smoking

     A prisoner claimed that he suffered injury from excessive exposure to second hand tobacco smoke, including nausea, chest pains, difficulty breathing, headaches, vomiting, and inability to eat, as well as a mild stroke or heart attack, blurred vision in his left eye, impaired ability to walk, numbness of his left side, and extreme back pain. He claimed to have been housed with prisoners who smoked in his cell, and that 35 inmates who smoked were housed in the area of his cell. He further asserted that existing no smoking rules were not enforced. The trial court found a genuine issue of fact as to whether the warden and an assistant supervisor responded in an adequate way to the plaintiff's verbal and written pleas that they enforce existing smoking prohibitions. These defendants' motions for summary judgment were denied on claims related to smoking, but granted on claims concerning alleged inadequate medical care, since the prisoner could not show that they were personally involved in any decisions concerning his medical care. Adams v. Banks, #5:08cv154, 2009 U.S. Dist. Lexis 90189 (S.D. Miss.).

Telephone Access and Use

     A lawsuit claimed that the portion of the charges for collect telephone calls from inmates paid as a commission to the department of corrections violated the New York Constitution and was excessive. The highest court in the state upheld the dismissal of the lawsuit, ruling that the commissions did not constitute a "tax," the practice of collecting the commissions was not a taking, and the plaintiffs failed to show the absence of a reasonable relationship between the commissions and legitimate penological aims. The court declined to order refunds of the commissions to inmates' families. The commissions were paid to the department under the terms of contracts entered into with phone service providers. Walton v. N.Y. State Dept. of Corr. Servs., No. 149, 2009 N.Y. Lexis 4081 (N.Y.).

     Editor's Note: For a number of years, New York inmates' families paid a $3 per collect call surcharge within the state and a $1.58 local collect call surcharge, along with a cost per minute ranging from 7 cents to 36 cents per minute. In 2003, the contract was changed to provide for a flat rate of $3 per call along with 15 cents per minute. Rates since 2007, however, have dropped by approximately half and the lawsuit concerned the earlier higher charges.

    The monitoring and recording of a prisoner's phone calls did not violate the federal Wiretap Act, 18 U.S.C. Sec.2510-2522, since he consented to prison authorities doing so. The subsequent disclosure of information from the calls for law enforcement purposes was authorized by 18 U.S.C. Sec. 2517. There was also no violation of either the Privacy Act, 5 U.S.C. Sec.552a or the Stored Communications Act, 18 U.S.C. Sec. 2701-2711, and no violation of the prisoner's constitutional rights. Bansal v. Pavlock, #08-3740, 2009 U.S. App. Lexis 23717 (Unpub. 3rd Cir.).

     Editor's Note: For a general discussion of inmate phone calls see, Legal Issues Pertaining to Inmate Telephone Use, 2008 (2) AELE Mo. L.J. 301.

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     Medical Care: Federal Bureau of Prisons, Pandemic Influenza Plan. Module 1: Surveillance and Infection Control (November 2009) Module 2: Antiviral Medications and Vaccines (October 2009) Module 3: Health Care Delivery (October 2009) Module 4: Care for the Deceased (October 2009).

     Statistics: HIV in Prisons, 2007-08. Presents year end 2007 and 2008 data from the National Prisoner Statistics and the Deaths in Custody series. The report provides data on the number of female and male prisoners who were infected with the human immunodeficiency virus (HIV) or had confirmed AIDS. Findings include the number of AIDS-related deaths in state and federal prisons, a profile of those inmates who died in state prison, and a comparison of AIDS rates between prison inmates and the general population. The report also covers the circumstances under which inmates were tested for HIV. Highlights include the following: At year end 2008, 1.5% (20,231) of male inmates and 1.9% (1,913) of female inmates held in state or federal prisons were HIV positive or had confirmed AIDS. Between 2007 and 2008, California (up 246), Missouri (up 169), and Florida (up 166) reported the largest increases in the number of prisoners who were HIV positive or had confirmed AIDS. During 2007, 130 state and federal prisoners died from AIDS-related causes. 12/09 NCJ 228307

     Statistics: Prisoners in 2008. Presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2008, collected from the National Prisoner Statistics series. This annual report compares changes in the prison population during 2008 to changes from yearend 2000 through yearend 2007. These are the only comprehensive national-level data on prison admissions and releases. Findings cover data on decreasing growth in state and federal prisons through declining admissions and increasing releases; imprisonment rates for prisoners sentenced to more than 1 year by jurisdiction; the number of males and females in prison; age, race, and gender distributions; the number of inmates in custody in state and federal prison and local jails; and custody incarceration rates. The report also includes the count for inmates held within facilities operated by and for the military, U.S. territories, Indian country, Immigration and Customs Enforcement (ICE), and juvenile authorities. Highlights include the following: The U.S. prison population grew at the slowest rate (0.8%) since 2000, reaching 1,610,446 sentenced prisoners at year end 2008. Growth of the prison population since 2000 (1.8% per year on average) was less than a third of the average annual rate during the 1990s (6.5% per year on average). Between 2000 and 2008 the number of blacks in prison declined by 18,400, lowering the imprisonment rate to 3,161 men and 149 women per 100,000 persons in the U.S. resident black population. 12/09 NCJ 228417

Reference:

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

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