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Access to Courts/Legal Info

     A prisoner claimed that a librarian's refusal to allow him access to a comb-binding machine violated his right of access to the courts. The librarian was entitled to summary judgment based on qualified immunity, as she believed that comb-binding of the prisoner's papers was not required, which was a reasonable belief, in light of the U.S. Supreme Court's flexible rules for pro se filings. Indeed, it appeared that the rules did not require, and perhaps did not even permit, such binding. Only "basic legal supplies," rather than "unnecessary amenities" need be provided to prisoners. Any delay in responding to the prisoner's request was not unreasonable, since he did not inform the librarian of when his petition was due in court. Phillips v. Hust, #04-36021, 2009 U.S. App. Lexis 26161 (9th Cir.).

First Amendment

     A federal appeals court upheld the award of $1 in compensatory damages and $2,500 in punitive damages to a prisoner on his claim that a disciplinary charge was filed against him in retaliation for his having filed a grievance against a correctional officer for allegedly cursing at him and threatening him. The trial court did not clearly err in determining that the officer would not have filed the disciplinary charge against the prisoner in the absence of a retaliatory motive. The disciplinary report accused the prisoner of having made false statements in his grievance. Haynes v. Stephenson, #08-3766, 2009 U.S. App. Lexis 27433 (8th Cir.).

Inmate Funds

     An injunction was granted barring a prisoner from accessing funds in a guardianship account established for him until claims asserted by his crime victims were settled. The guardianship expired in 1997 when the prisoner became 18, and he became entitled to the funds. Such funds fit the definition of "funds of a convicted person" and were subject to New York's "Son of Sam" law, so that the injunction was properly granted. New York State Crime Victims Board (Organek) v. Harris, #506010, 2009 N.Y. App. Div. Lexis 8926 (A.D. 3rd Dept.).

Medical Care

     A prisoner transported by van to a hospital for the removal of his appendix claimed that medical personnel at a correctional facility were deliberately indifferent to his serious medical needs the previous day, when he began to experience abdominal pain and nausea. The claim was rejected. When he first complained, he was allowed to visit the medical unit, interviewed by a nurse, and a supervising physician was consulted by phone, following which he was given over-the-counter medication. The prisoner failed to name the nurse or nurses who he claimed subjected him to mistreatment or to present evidence that they deviated from an applicable standard of care in his situation. Grassi v. Corrections Corporation of America, #09-1042, 2009 U.S. App. Lexis 26563 (Unpub. 10th Cir.).

    A prisoner failed to establish that the refusal to provide him with a hearing aid to relieve his tinnitus constituted deliberate indifference to a serious medical need. He received "numerous treatments" for ear infections in his left ear, and an audiological exam showed that his hearing was functional in both ears despite his condition of tinnitus, so that he was not eligible to receive a hearing aid. A medical practice manager could not himself diagnose the prisoner's medical needs, and fulfilled his duties, in light of the test results, by reviewing the medical records and explaining to the inmate how policies applied to him based on those records. Cooper v. Johnson, #09-40223, 2009 U.S. App. Lexis 26139 (Unpub.5th Cir.).

     A prisoner failed to show deliberate indifference or even negligence or malpractice by doctors in treating his "jock itch." He received treatment for his complaints, and the fact that he disagreed with the course of treatment and claimed that it was not effective did not establish a violation of his rights. Simon v. Augustine, #06-CV-6496, 2009 U.S. Dist. Lexis 101609 (W.D.N.Y.).

Prisoner Assault: By Inmates

     A prisoner claimed that the warden, two caseworkers, and the prison education director failed to provide him with needed protection against a beating by another prisoner. The fact that the other prisoner had a history of assaults did not establish that the warden knew of and disregarded an excessive risk he posed to the plaintiff's safety. One of the caseworkers had carried out his duties by noting in his logbook and informing his supervisor that the assailant had made statements about fighting the plaintiff and his failure to take further steps did not amount to deliberate indifference. A second caseworker, who initialed the logbook, at worst was negligent in failing to take action in response to the threat. The prisoner failed to present any evidence supporting his contention that the education director did anything to incite other prisoners against the plaintiff, although he did allegedly show them written complaints the plaintiff had filed against the director. Norman v. Schuetzle; #08-1686, 2009 U.S. App. Lexis 26702 (8th Cir.).

     A prisoner asserted that another inmate shoved him in the face during basketball games, punched him in the face, fracturing his jaw, in the dining hall, and falsely accused him of being a child molester. Rejecting his claims of failure to protect and inadequate medical care, the appeals court found that there was no evidence that corrections officers or a nurse knew of and disregarded an excessive risk to his safety. Any fear of harm from the other inmate was not strong enough to prevent the plaintiff from voluntarily playing in basketball games where the other inmate was present. As for a defendant mental health counselor, there was no evidence that the plaintiff had ever complained to him concerning any threats. As for the medical care claims, the prisoner both failed to establish deliberate indifference to a serious medical need and failed to exhaust his available administrative remedies prior to filing suit, as required by 42 U.S.C. Sec. 1997e(a). Davis v. Williams, #09-2602, 2009 U.S. App. Lexis 26637 (Unpub.3rd Cir.).

     Parents of a pretrial detainee sued correctional officials for his murder by another patient while at a state hospital for observation. The murder occurred during a "free period" when patients were allowed to visit each other's rooms. A deputy superintendent was entitled to qualified immunity from liability, as it was not clearly established that, in the absence of individualized threats or a history of prior violence that the failure to discontinue a long-standing practice of allowing unsupervised visits to patient rooms by other patients constituted deliberate indifference to the risk of assaults. The defendant commissioner of corrections could have reasonably thought that existing staffing, which complied with hospital recommendations, was sufficient to be constitutionally adequate, so she was also entitled to qualified immunity. Mosher v. Nelson,  #09-1636, 2009 U.S. App. Lexis 27730 (1st Cir.).

    A prisoner failed to show that jailers violated his rights by not protecting him from attacks by other inmates, since they acted on his requests for cell transfers based on his fears of threats to his safety. Inadequate medical care claims were also rejected, since evidence showed that jail medical staff responded "diligently" to all of his "myriad" medical complaints. Krause v. Leonard, #09-40273, 2009 U.S. App. Lexis 24387 (Unpub. 5th Cir.).

Prisoner Assault: By Officers

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

     A jury properly awarded a prisoner $75,000 in compensatory damages and $125,000 in punitive damages on his claim that a correctional officer attacked him without justification for the purpose of maliciously doing him harm. The officer allegedly called the prisoner a "son of a bitch" and a "mother fucker" for no apparent reason, resulting in the prisoner telling him to "keep his mother" off the streets. While the prisoner made no threatening movements towards the officer, and was "hardly capable" of challenging the officer physically, because of prior injuries from car accidents, the officer then waited for the prisoner in his housing unit, grabbed him, threw him against a wall, slammed him onto a concrete floor, and pressed his knees onto the prisoner's back while another officer cuffed him. The car accidents had previously rendered the prisoner partially crippled, with damage to the right side of his brain and the left side of his body, affecting his ability to walk, as well as causing a herniated disk in his neck, and neck and back pain. The court found that both the compensatory and punitive damage awards were justified by the evidence. Hendrickson v. Cooper, #09-1375, 2009 U.S. App. Lexis 28114 (7th Cir.).

     A federal appeals court upheld a trial court's refusal to submit an inmate's excessive force claim against correctional officers to the jury on the basis of the Fourth Amendment as well as the Eighth Amendment, since the Eighth Amendment provided the appropriate legal standard for his claims. The jury's verdict for all of the individual defendants eliminated any possibility of municipal liability, since no individual was found to have violated the plaintiff's rights. The trial court properly bifurcated the proceedings, trying the individual liability claims first, and thereby eliminating the need for any proceedings on the municipal liability claims. Bonilla v. Jaronczyk, #08-1470, 2009 U.S. App. Lexis 26167 (Unpub. 2nd Cir.).

Prisoner Discipline

     A prisoner found guilty of disciplinary charges of conspiring with visitors to smuggle drugs into the facility, and of using the inmate phone system and "coded language" to facilitate the conspiracy, claimed that the hearing officer violated his rights by refusing to show him a written explanation of the supposed meaning of his codes that was used in finding him guilty. The explanation was used to establish the meaning of the content of the prisoner's recorded phone conversations, which the hearing officer stated he did not understand much of. The explanation, provided to the officer by an investigator, was written by an unnamed third party. The court found that the refusal to provide this document to the prisoner, in the absence of any explanation why it could not be provided, violated his due process rights. The prisoner was granted a new hearing on the disciplinary charges. Tolliver v. Fischer, #5256/08, 2008-10578, 2009 N.Y. App. Div. Lexis 9028 (A.D. 2nd Dept.).

Prisoner Suicide

    Evidence in a lawsuit did not show that a private company that managed a county jail or its employees had knowledge making a detainee's suicide foreseeable. No behavior was witnessed indicating mental issues or suicidal tendencies on the part of the detainee. During the morning of the suicide, employees violated the company's own policies of making rounds by performing checks only hourly and omitting the decedent's location during one such check, but this did not suffice to impose liability in the absence of foreseeability of the suicide attempt. Timson v. Juvenile and Jail Facility Management Services, Inc., #09-12351, 2009 U.S. App. Lexis 26120 (Unpub. 11th Cir.).

Prisoner Transfer

     Transfer of a prisoner out of a unit, when based on a doctor's recommendation, did not violate his rights, or deny him medical care or mental health care for his self-mutilation. Bishop v. Does, #08-20645, 2009 U.S. App. Lexis 23673 (Unpub.5th Cir.).

     A prisoner was not entitled to an injunction directing his transfer to another facility based on the alleged risk of assault he faced while visiting with his family. He had not shown that his conditions of confinement created a substantial risk of such attacks. Johnson v. Miles, #08-0658, 2009 U.S. App. Lexis 22704 (Unpub. 2nd Cir.).

Religion

     Further proceedings were ordered on a secular humanist group's complaint, asserting that the use of state funds to pay two ministries for substance abuse transitional housing programs for prisoners violated the no aid to religion provisions of the Florida state constitution. On remand, the plaintiffs have to establish that the nature and effect of the programs are "primarily sectarian" in order to prevail. The court further held, however, that the state's employment of a chaplain and use of public funds to pay him did not violate either the Establishment of Religion clause of the First Amendment to the U.S. Constitution or the no aid to religion provisions of the Florida state constitution. Council for Secular Humanism, Inc. v. McNeil, #1D08-4713, 2009 Fla. App. Lexis 19498 (1st Dist.).

     A prison policy prohibiting all inmates from wearing beards unless they had a medical exception, which contained no religious exception, was properly upheld by the trial court based on security and discipline concerns, including the need to properly identify inmates and the possibility that contraband and weapons could be carried in beards. A proposed alternative policy allowing a religious exception for quarter-inch beards was not financially or administratively feasible, and the existing policy was therefore the "least restrictive means" of satisfying the discipline and security concerns. Gooden v. Crain, #08-40966, 2009 U.S. App. Lexis 25656 (Unpub. 5th Cir.).

    The sixth in a series of lawsuits brought by Maricopa County jail prisoners seeking to stop the sheriff from playing Christmas holiday songs all day, every day during the holiday season has been dismissed by a federal trial court. Songs played included "Rudolph the Red-Nose Reindeer" and songs by Alvin and the Chipmunks. In a press release announcing the dismissal, the county stated, "We keep winning these lawsuits. Inmates should stop acting like the Grinch who stole Christmas and give up wasting the court's time with such frivolous assertions. ... But chances are they'll keep suing and we'll keep winning." The lawsuit claimed that being forced to listen to Christmas songs12 hours a day violated the plaintiff prisoner's civil rights, including his right to freedom of religion. Lamb v. Arpaio, #CV-09-0052, Pacer Doc. 25 (D. Ariz. 2009).

Search and Seizure: Prisoners/Cells

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

     Despite the fact that results were negative from a second metal detector, a dog search, a rectal examination, an x-ray, and bowel movements in the presence of officers, all searching for a suspected hidden cell phone, a prisoner was allegedly forced to undergo exploratory abdominal surgery to look for it, which he argued violated his constitutional rights. A federal appeals court, while finding that the rectal examination did not violate his rights, ruled that the surgery did. The surgery was not reasonable or commonplace, and it involved trauma, risk and pain. It was not justified, given the doubt that it would result in the production of evidence of a crime. Surgery to determine whether the prisoner was concealing a cell phone in his rectum violated his clearly established Fourth Amendment rights. The appeals court reversed the dismissal of civil rights claims concerning the surgery against two correctional officers and a surgeon. Sanchez v. Pereira-Castillo, #08-1748, 2009 U.S. App. Lexis 28250 (1st Cir.).

     A prisoner's complaints of unreasonable search were devoid of factual plausibility. Measures taken by prison authorities were amply justified by the fact that he had set off a metal detector in the yard on three consecutive occasions, and also refused a subsequent order to squat and cough. Even if the metal detector was malfunctioning, as the prisoner claimed, this did not make it unreasonable for officers to insist that he comply with their orders, and he additionally had no reasonable expectation of privacy. Cann v. Hayman, #08-3032, 2009 U.S. App. Lexis 21425 (3rd Cir.).

Segregation: Disciplinary

     A prisoner was placed in disciplinary segregation for 30 days after a search found a razor blade in his pocket. His segregation for possession of contraband did not violate his procedural due process rights. He did not show that he faced "atypical" or "significant" hardships in segregation. The requirement that he be handcuffed while out of his cell and the monitoring by guards of his access to resources were not significant departures from normal prison conditions. The search of the prisoner's cell and person that discovered the razor blade did not violate his rights. Shaarbay v. Palm Beach County Jail, #09-11294, 2009 U.S. App. Lexis 23404 (Unpub. 11th Cir.).

Visitation

     A wheelchair-bound woman suffering from multiple sclerosis contended that she was denied a reasonable accommodation for her disability in connection with her request to visit her incarcerated husband. Her disability allegedly prevented her from visiting him because she cannot travel long distances, and he is imprisoned 300 miles away from her home. Reversing the dismissal of her lawsuit, a federal appeals court held that the plaintiff had standing to assert a disability discrimination claim, and that the trial court improperly failed to address whether she had sufficiently alleged that the visitation program was administered in a discriminatory manner, which it should do on remand. Fulton v. Goord, #06-5023, 2009 U.S. App. Lexis 28064 (2nd Cir.).

Voting

     By a 2-to-1 majority, a panel of a federal appeals court ruled that a Washington state law that automatically disenfranchises convicted felons results in denial of the right to vote on account of race in violation of the Voting Rights Act, 42 U.S.C. Sec. 1973, due to racial discrimination in the state's criminal justice system. A strong dissent noted that three other federal circuit courts of appeal have ruled that challenges to felon disenfranchisement laws cannot be brought under the Voting Rights Act. Farrakhan v. Gregoire. No. 06-35669, 2010 U.S. App. Lexis 141 (9th Cir.).

Work/Education/Recreation Programs

     Correctional officers were not liable for allegedly forcing a prisoner to work despite a prior shoulder injury when there was an absence of evidence that they had knowledge of the prisoner's prior injury before he reinjured his shoulder. The evidence also showed that the officers then adequately responded to the prisoner's injury and enforced needed safety measures at the work site. Knight v. Wiseman, #09-1435, 2009 U.S. App. Lexis 28195 (7th Cir.).

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     Juvenile Prisoners: "The Keeper and the Kept," a W. Haywood Burns Institute report on "systemic problems" involving juvenile justice systems, examines racial and ethnic disparities in youth detention and provides recommendations for addressing them.

     Sexual Assault: Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 by Allen J. Beck, Paul Guerino, and Paige M. Harrison, January 7, 2009 NCJ 228416. Presents data from the 2008-09 National Survey of Youth in Custody (NSYC), conducted in 195 juvenile confinement facilities between June 2008 and April 2009, with a sample of over 9,000 adjudicated youth. The report provides national-level and facility-level estimates of sexual victimization by type of activity, including youth-on-youth sexual contact, staff sexual misconduct, and level of coercion. It also includes an analysis of the experience of sexual victimization, characteristics of youth most at risk to victimization, where the incidents occur, time of day, characteristics of perpetrators, and nature of the injuries. Finally, it includes estimates of the sampling error for selected measures of sexual victimization and summary characteristics of victims and incidents. The report and appendix tables provide a listing of results for sampled state and large locally or privately operated facilities, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79). Facilities are listed alphabetically by state with estimated prevalence rates of sexual victimization as reported by youths during a personal interview and based on activity in the 12 months prior to the interview or since admission to the facility, if shorter. Highlights include the following: This report presents findings from the first National Survey of Youth in Custody (NSYC), representing 26,550 adjudicated youth held nationwide in state operated and large locally or privately operated juvenile facilities. Overall, 91% of youth in these facilities were male; 9% were female. About 12% of youth in state juvenile facilities and large non-state facilities (representing 3,220 youth nationwide) reported experiencing one or more incidents of sexual victimization by another youth or facility staff in the past 12 months or since admission, if less than 12 months. About 2.6% of youth (700 nationwide) reported an incident involving another youth and 10.3% reported an incident involving staff.

    Statistics: The U.S. Bureau of Justice Statistics has launched a new Web site. It can be found at http://bjs.ojp.usdoj.gov

     Statistics: "Jails in Indian Country, 2008." Bureau of Justice Statistics, Dec. 2009. Presents findings from the 2008 Survey of Jails in Indian Country, an enumeration of 82 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2008. It also summarizes rated capacity, facility crowding, and jail staffing. Highlights include the following: The number of inmates admitted into Indian country jails during June 2008 was about 6 times the size of the average daily population. The number of inmates confined in Indian country jails declined by 1.3% at midyear 2008, dropping to 2,135 inmates. Inmates held for aggravated and simple assault increased at midyear 2008; domestic violence declined.

Reference:

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

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