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Disability Discrimination: Prisoner

     A prisoner suffering from deteriorating eyesight claimed that a prison nurse failed to protect him against being more likely to be preyed on by other prisoners, including because of his inability to see to use his combination locks, leaving his property unprotected as a result. The court found that the nurse's denial of his request for a single room was based on her understanding of prison policies, rather than deliberate indifference to his serious medical needs. The prisoner could go forward, however, with his equal protection and disability discrimination claims, based on his assertion that he was not provided with equal treatment to other disabled inmates, and the nurse's failure to point to facts rationally supporting her decision to deny him a single room. Mingus v. Butler, #08-2286, 2010 U.S. App. Lexis 78 (6th Cir.).

     A prisoner claimed that he was subjected to disability discrimination because he was not provided with reasonable accommodations, including a cane. His claim was rejected, however, as he failed to show that he had a disability within the meaning of applicable federal statutes. Ali v. Howard, #09-1654, 2009 U.S. App. Lexis 25162 (Unpub. 3rd Cir.).

     Wheelchair-dependant inmates claimed that conditions at a facility resulted in them soiling themselves several times a week because the restrooms available were not wheelchair accessible. The frequency with which this occurred was frequent enough that an Eighth Amendment claim survived summary judgment. Other claims concerning the height of a food service counter, the absence of an accessible water fountain, potholes and broken cement in recreation yards, and the alleged inaccessibility of telephones and the law library, however, did not assert valid Eighth Amendment claims as they did not deprive the prisoners of the "minimal civilized measure of life's necessities" or present an unreasonable risk of serious damage to their health. In the absence of a showing of discriminatory intent, the prisoners could not recover damages under the Americans with Disabilities Act (ADA). Shariff v. Coombe, #96-Civ-3001, 2009 U.S. Dist. Lexis 69119 (S.D.N.Y.).

Exercise

     A jury awarded a prisoner nominal and punitive damages on his claim that prison officials denied him outdoor exercise during four separate extended lockdowns that took place after violent incidents involving prisoners attacking staff members. Overturning this result, a federal appeals court ruled that the defendants were entitled to qualified immunity since they had "substantial" reasons for imposing the lockdowns, which were effective at preventing violence, and their determination that there was a greater risk of harm from allowing outdoor exercise than from denying it was reasonable, given the recent violence. Norwood v. Vance, #07-17322, 2010 U.S. App. Lexis 730 (9th Cir.).

First Amendment

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

     A prisoner claimed prison officials' actions in confiscating his fantasy role-playing "Dungeons and Dragons" game materials and banning the playing of the game violated his due process, equal protection, and First Amendment free speech rights. He disputed the assertion that playing the game promoted gang behavior, and argued, in fact, that doing so could promote rehabilitation. A federal appeals court, upholding the ban, found that prison officials could reasonably believe that playing the game could promote gang behavior, and undermine prison security, and that the game's structure mimicked gang structure. The burden was on the prisoner to refute those contentions, and he failed to adequately do so, Singer v. Raemisch, #07-3400, 2010 U.S. App. Lexis 1506 (7th Cir.).

     A prisoner's statement that he would file and pursue a grievance against a prison employee if she failed to assist him in obtaining footlockers could be constitutionally protected conduct under the First Amendment, requiring the reinstatement of his dismissed First Amendment claim that the employee unlawfully retaliated against him by taking actions that subjected him to the possibility of receiving a major misconduct ticket. Pasley v. Conerly, #08-2132, 2009 U.S. App. Lexis 21364 (Unpub. 6th Cir.).

Medical Care

     After a prisoner suffered from diarrhea and vomiting, correctional officers purportedly decided that she was undergoing alcohol or drug withdrawal. A clinician and nurse, however, decided that she was suffering medical distress and should be transferred to the medical unit for further evaluation. She later died while on a stretcher in the medical unit's hallway. The inmate's estate could proceed with deliberate indifference claims against the clinician, as the failure to take additional steps to aid her might constitute inadequate medical care. State law medical malpractice claims, however, were properly dismissed since a state medical malpractice tribunal ruled that there was no malpractice, and the plaintiff failed to post a bond as required by Massachusetts law to challenge that finding. Brace v. Massachusetts, #08-CV-30184, 2009 U.S. Dist. Lexis 116068 (D. Mass.).

     The existence of many filed inmate grievances over allegedly inadequate medical care at a federal prison was an adequate basis for supervisory liability claims by a prisoner there against a former warden, the Bureau of Prisons (BOP) director, and a regional BOP director. These grievances, assumed to be true for purposes of a motion to dismiss, could potentially show that these defendants were on notice of a rampant problem at the prison concerning prisoner medical care, yet failed to take necessary corrective action. The plaintiff prisoner, who fell and badly injured his finger while mopping a floor, claimed that he was given inadequate medical care for his injuries. Scott v. Vasquez, #CV 208-145, 2009 U.S. Dist. Lexis 110718 (S.D. Ga.).

     A prisoner adequately alleged facts from which an inference of deliberate indifference to his serious medical needs would be made. He asserted that, despite his complaints of continuing severe pain to two nurses, they provided him with no examination or treatment and merely put him on the sick call list for the next day, and that one nurse forced him to crawl to a wheelchair after he screamed in pain for longer than three hours. He further claimed that after the removal of his appendix, when he started bleeding from his penis, a doctor told an assistant to place him in a room for the night, and that correctional personnel instructed him to dispose of the blood he kept gushing, in order to hide his condition. Given these assertions, the appeals court overturned the dismissal of the prisoner's lawsuit. Pearson v. Prison Health Service, #09-2766, 2009 U.S. App. Lexis 22760 (Unpub. 3rd Cir.).

Prisoner Assault: By Inmate

     A DUI arrestee, while at a local jail, had a verbal dispute with two prisoners. An officer, acting for the purpose of relieving overcrowding in the booking area, then placed the arrestee and one of these two prisoners into a drunk pod with several others. Minutes later, the other prisoner gave the arrestee a severe beating. In a failure to protect lawsuit against the officer, the officer was properly denied summary judgment. His contention that he relied on an alleged policy directing that he place intoxicated and non-intoxicated prisoners together in the event that the booking area became too crowded did not entitle him to qualified immunity since such a policy, even if it existed, did not explicitly authorize what he allegedly did--ignore the risk of an assault by the other prisoner. Bass v. Goodwill, #08-6168, 2009 U.S. App. Lexis 26767 (10th Cir.)

     A prisoner in a medium security facility sued the state for alleged failure to properly protect him from the risk of the assault by three other prisoners he suffered in the bathroom of a recreational yard. The court found no evidence that the state had either actual or constructive notice of the risk of such an attack. There was no indication that the three assailants were particularly prone to violence or were a threat to the plaintiff. Further, the plaintiff had no prior encounters with these assailants, and had not requested protective custody. The fact that another prisoner had been attacked in the same bathroom four years earlier did not make the later assault reasonably foreseeable. Vasquez v. N.Y., #506205, 2009 N.Y. App. Div. Lexis 8936 (A.D. 3rd Dept.).

     The record showed that each time the plaintiff prisoner reported that his life was in danger, prison officials conducted an investigation and found his claim to be unfounded, but still relocated him. The prisoner's claim of failure to protect really was based on his preference for single cell housing status, but his mere disagreement with his classification in the general population of the prison did not entitle him to get what he wanted. Parker v. Currie, #08-41023, 2010 U.S. App. Lexis 92 (5th Cir.).

Prisoner Assault: By Officer

     As a prisoner was getting ready to be transported to a court appearance, he and an officer argued about bringing a change of clothes. A supervising officer responded to the officer's call for backup, and allegedly punched the plaintiff prisoner in the mouth without any provocation, causing him to lose one tooth and suffer two other loose teeth. The supervising officer, however, stated that the prisoner had acted aggressively and lunged at the officer, so that he employed a takedown procedure involving pushing the prisoner against a wall and handcuffing him after spinning him around. The court found that a trial court judgment in favor of the supervising officer was supported by evidence that the prisoner, enraged, would not listen to reason, and would not remain still until the defendant acted to subdue him. Brown v. Acting Director Metro Dade Correctional, #08-15612, 2010 U.S. App. Lexis 446 (Unpub.11th Cir.).

Prisoner Death/Injury

     After a bench trial, a judge entered a judgment in favor of the U.S. government on claims by a federal prisoner that a corrections officer acted negligently while escorting him to a cell, causing him to fall and suffer injuries. The trial court did not act erroneously in allowing cross-examination on deposition testimony indicating that a letter from the plaintiff prisoner was part of a scheme to obtain money, which had a bearing on his believability. The verdict was upheld on appeal. Bacon v. U.S., #08-0194, 2009 U.S. App. Lexis 26962 (Unpub. 2nd Cir.).

Prisoner Discipline

     A prisoner was found guilty of self-mutilation, fraud, and bribery in a disciplinary hearing, based on evidence that he and another prisoner had staged their fight. He then filed a lawsuit against a number of correctional officers, asserting that they failed to protect him from assault, provided him with inadequate medical attention for his injuries, and created an atmosphere where prisoners could be deprived of due process. Since the prisoner had staged a "phony" fight, his failure to protect claim lacked merit, and success on that claim would imply the invalidity of his disciplinary conviction, which had not been set aside. He also failed to show that he really needed any medical treatment, as he did not suffer serious injuries. His other claims were also without merit. Jackson v. Mizzel, #09-30667, 2010 U.S. App. Lexis 1258 (Unpub. 5th Cir.).

     A prisoner found guilty on disciplinary charges of failing to provide a urine sample for drug testing within a two hour deadline was given all the process he was due, since he received 24 hours notice of the charges against him, the opportunity to present evidence and call witnesses, and was given a written decision stating the evidence relied on and the reasons for the decision. There was some evidence to support a finding of willfulness in the failure to provide a urine sample within the time deadline, and no documented medical condition in the prisoner's records that would justify an extension of that deadline. Void v. Warden, #08-2887, 2009 U.S. App. Lexis 20176 (Unpub. 3rd Cir.).

Prisoner Suicide

     After a pretrial detainee successfully committed suicide, his parents sued the county, two deputies, and a mental health specialist for failing to prevent his death. While the other defendants were not shown to have known that the detainee was suicidal or to have deliberately ignored a risk that he might take his own life, the mental health specialist was not entitled to summary judgment. His expressed understanding that the detainee was "not out of the woods yet" could be used to show that a reasonable mental health professional would not have acted to remove suicide prevention measures previously imposed on the detainee by another employee. Clouthier v. Contra Costa, #07-16703, 2010 U.S. App. Lexis 884 (9th Cir.).

Public Protection

     The estate of a person murdered by a prisoner days after his release failed to show that the murder was foreseeable or that the prison was negligent in monitoring inmate phone calls and mail, and failing to discover the prisoner's involvement in a murder conspiracy. There was no evidence that the prison violated its own policies and procedures, which did not require listening to all inmate calls. The employee assigned to monitor inmate calls heard nothing that indicated the existence of a murder conspiracy. Garris v. Dept. of Rehabilitation, #2005-11124, 2009 Ohio Misc. Lexis 243 (Ct. of Claims).

Race Discrimination

     While the lockdowns that a prisoner was subjected to did not impose an extraordinary hardship on him as required for a due process claim, he could proceed with his racial discrimination claim. Prison officials failed to justify allegedly putting every African-American prisoner in a housing unit on lockdown in instances in which an assault was allegedly perpetrated or planned by one or a few African-American prisoners. Richardson v. Runnels, #07-16736, 2010 U.S. App. Lexis 695 (9th Cir.).

Religion

     A Native American prisoner's claims that his right to religious freedom was violated by regulations limiting his hair length and limiting his wearing of a medicine pouch were reinstated by a federal appeals court. The court ruled that the trial court had failed to consider whether wearing a small patch of long hair as a "kouplock" instead of a full head of long hair actually posed a security risk and failed to apply the proper "compelling governmental interest" and "least restrictive alternative" requirements to the medicine pouch restrictions. Odneal v. Pierce, #06-41165, 2009 U.S. App. Lexis 7096 (Unpub. 5th Cir.).

     A prisoner claimed that denial of his requests to attend Mass and to be provided with a rosary and Roman Catholic prayer book to use in his cell at night violated his right to religious freedom. A federal appeals court found that these claims were prematurely dismissed, since there was no showing that granting his requests would create a security risk or be incompatible with his confinement. Ortiz v. Downey, #06-2453, 2009 U.S. App. Lexis 6910 (7th Cir.).

Strip Search: Prisoners

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

     A federal appeals court has upheld a San Francisco policy requiring that all arrestees to be placed in the general population of the jail for custodial housing be subjected to a strip search. The court found that, in balancing the intrusion on personal rights represented by the searches and the need for the searches to combat an existing contraband problem in the jail, the balance weighed in favor of the jail's institutional needs. Bull v. San Francisco, #05-17080, 2010 U.S. App.Lexis 2684 (9th Cir.).

     A prisoner claimed that he was singled out for a strip search by a correctional officer when returning to his facility with other members of a work crew because he chose the number four when asked to pick a number between one and ten. The officer then informed him that he had "won" the strip search "raffle," and he was strip searched in a bathroom two feet from the urinals and compelled to stand on a dirty floor in bare feet. Bureau of Prisons' policy authorizes such searches of work crews returning to a facility from an outside assignment, in order to prevent the introduction of contraband, and the selection of the prisoner for this search, even if allegedly motivated for a "non-penological" reason, was not rendered unreasonable by that selection method. Nunez v. Duncan, #04-36146, 2010 U.S. App. Lexis 517 (9th Cir.).

Work/Education/Recreation Programs

     A prisoner failed to show that his due process rights were violated when he was allegedly terminated from his correctional industries job assignment based on accusations of having taken paper towels from the factory where he worked. Placing him on restricted status, which lasted only 45 days, did not impose a significant or atypical hardship on him as required for a due process violation. Anderson v. Cunningham, #08-1349, 2009 U.S. App. Lexis 6840 (Unpub. 10th Cir.).

     A man convicted of a burglary was sentenced as a habitual offender to eight years of hard labor. As part of his sentence, he worked for the city, maintaining city property and facilities. He claimed that the city's mayor and police chief forced him to work extra hours beyond the work day, and sometimes to work for their private gain, such as work for the police chief's private businesses. A federal appeals court found that allegedly being forced to work for private businesses did not turn his labor into involuntary servitude in violation of the Thirteenth Amendment, and that he was not entitled to either minimum wage pay or overtime under federal law. It was, the court stated, possible that the mayor and police chief abused their authority over the prisoner, but this did not give him a claim for violation of either the Fair Labor Standards Act or the Thirteenth Amendment. Williams v. Henagan, #07-30997 2010 U.S. App. Lexis 2036 (5th Cir.).

    •Return to the Contents menu.

     Jail Capacity Planning:  "Jail Capacity Planning Guide: A Systems Approach" (ACCN 022722, 88 pp.) discusses the need to approach jail capacity planning using a systems approach that analyzes the connections and interactions of the smaller components of a larger system, taking into account not only jail operations but also the larger criminal justice system and county population trends.

     Jail Employees: The Future is Now: Recruiting, Retaining, and Developing the 21st Century Jail Workforce. BJA and the Center for Innovative Public Policies, January 2010 This toolkit provides strategies for improving employee recruitment, retention, succession planning and leadership development, based on current research in the field as well as input from some 2,106 line staff and 569 administrators responding to the first National Jail Workforce Survey.

     Sexual Assault: Legal Responses to Sexual Violence in Custody: State Criminal Laws Prohibiting Staff Sexual Abuse of Individuals under Custodial Supervision, by Brenda Smith and Jaime M. Yarussi (2009). This publication provides an overview of “criminal laws explicitly prohibiting staff sexual interactions with adults and youth under correctional supervision...and examines trends in their enactment and amendment”. Eight chapters are contained: an introduction to staff sexual misconduct—definitions; state criminal laws coverage of agencies and personnel; state criminal laws—prohibited contact; state criminal laws—defenses to staff sexual misconduct; state criminal laws—criminal penalties; optimal elements of law—criminalizing staff sexual misconduct with offenders; other sanctions and consequences; and conclusion.

Reference:

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

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