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Disability Discrimination: Prisoners

     A Florida prisoner in a prison operated by a private prison management company under contract sued three employees of the company in their official capacities, seeking injunctive relief and damages for disability discrimination under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132, which prohibits a "public entity" from discriminating against qualified persons because of their disabilities. Upholding summary judgment for the defendants, a federal appeals court held that the private corporation was not a public entity merely on the basis that it entered into a contract with a public entity to provide services. An "instrumentality of the state" is a government unit or a unit created by a government unit. Edison v. Douberly, #08-15819, 2010 U.S. App. Lexis 8961 (11th Cir.).\

False Imprisonment

     A former Pennsylvania prisoner sued a records specialist with the state Department of Corrections, claiming that his alleged ineffectual action in resolving supposed errors in his sentencing calculation resulted in him being incarcerated beyond the maximum term of his imprisonment. Ruling that the defendant was entitled to qualified immunity, a federal appeals court found that the defendant did not act with deliberate indifference towards any clearly established right that the plaintiff had. The records specialist responded quickly and communicated the issue to the appropriate parties for review. While the issue took some time to resolve, it was not a simple one, as his proper release date was "complicated by multiple convictions, parole, parole violation, 'backtime,' and vacated sentences." There was no evidence that anything the records specialist did caused any delay in the prisoner's release. Montanez v. Thompson, #05-4430, 2010 U.S. App. Lexis 8318 (3rd Cir.).

Inmate Property

     An Ohio prisoner being transferred to a new facility asked that his TV set be mailed to his home address. Instead it was forwarded to another facility, and he regained possession of the set following another transfer, but claimed that it no longer worked. He sued the Department of Rehabilitation and Correction for negligently damaging his property. The Ohio Court of Claims entered judgment for the Department, finding that it was not an "insurer" of the TV set, although it did have a duty to make reasonable efforts to protect such property. There was no proof that the set was damaged because of negligent conduct attributable to the defendant. McCoy v. Ohio Dept. of Rehabilitation and Corrections, #2009-04904, 2010 Ohio Misc. Lexis 9 (Ct. of Claims).

Mail

     A prisoner claimed that a prison guard violated his rights by reading his legal mail. He failed to establish a violation of his First Amendment right of access to the courts, since he did not show any injury to a pending legal claim. The prisoner also failed to show that the guard's actions created any kind of barrier to his relationship with his lawyer in violation of his Sixth Amendment right to counsel. There was no procedural due process violation, as correctional officials provided the prisoner with a post-deprivation hearing. Stanley v. Vining, #08-2634, 2010 U.S. App. Lexis 8298 (6th Cir.).

Medical Care

     Upholding a trial court's appointment of a receiver in a class action lawsuit claiming widespread deficiencies in prison medical care, in violation of the Eighth Amendment and the Americans with Disabilities Act (ADA), a federal appeals court ruled that the Prison Litigation Reform Act did not eliminate the trial court's jurisdiction to appoint a receiver in prison conditions litigation, and that, in this case, the trial court properly found that the appointment of such a receiver was the "least intrusive means" of remedying the problem. Plata v. Schwarzenegger, #09-15864, 2010 U.S. App. Lexis 8969 (9th Cir.).

     A jail received a pretrial detainee who was known to be diabetic and a schizophrenic. After his arrival, he ate little, felt ill, had high blood sugar, had rapid breathing, was unsteady on his feet, and had a fever. He was transferred to a hospital after thirteen days, and doctors there found that he had pneumonia and improperly functioning kidneys. Five days later, he died. In a lawsuit by his estate against a hospital, jail officers, licensed practical nurses, and a nurse practitioner, the defendants were not entitled to qualified immunity, as there were genuine issues of material fact as to whether they were deliberately indifferent towards the detainee's health. A reasonable jury could find that the jail officers should have realized that he needed immediate medical care, and that medical personnel gave him "blatantly inappropriate" treatment. Estate of Gee v. Johnson, #09-1895, 2010 U.S. App. Lexis 3115 (Unpub. 7th Cir.),

     A prisoner's purported "new" evidence concerning the alleged deliberate indifference of medical staff and prison administrators to his need for surgery for his hernia, far from bolstering his claim, indicated that he was, in fact, provided with the surgery once his hernia became difficult to reduce. There was no evidence that his condition was ignored or that doctors waited an unreasonably long time to opt to approve the surgery. Chadwick v. Walker, #09-3175, 2010 U.S. App. Lexis 3111 (Unpub. 7th Cir.).

     A Pennsylvania prisoner serving a life sentence began a hunger strike. Prison officials sought and obtained a court order mandating that he be involuntarily examined and subjected to invasive diagnostic tests, as well as given medical treatment including nutrition and hydration to preserve his life and health. Because the correctional officials failed, however, to present evidence that the prisoner's life was in imminent danger, the court upheld the portions of the order concerning diagnostic tests and examination, but vacated portions of the order concerning forced nutrition and hydration. Hill v. Dept. of Corrections, #1331 C.D. 2009, 2010 Pa. Commw. Lexis 181.

     A pretrial detainee's claims concerning his allegedly inadequate medical treatment were properly rejected when he failed to show a link between any actions of the defendants and the alleged deficiencies in his treatment, instead merely arguing that the defendants should be held liable because the defendants' jobs made them responsible for seeing that detainees have adequate medical care. Thomas v. Guffey, #09-2133, 2010 U.S. App. Lexis 4401 (Unpub. 10th Cir.).

Prison and Jail Conditions: General

     A prisoner's federal civil rights lawsuit over prison conditions should not have been dismissed as he adequately alleged both the objective and subjective components of an Eighth Amendment violation in asserting that he was completely denied a number of hygiene supplies and lacked toothpaste, in particular, for 337 days, in addition to which the defendants were allegedly aware of this and did not act to remedy the problem. Flanory v. Bonn, #09-1161, 2010 U.S. App. Lexis 9267 (6th Cir.).

Prisoner Assault: By Inmate

     A female prisoner being transported was placed in a van with four male prisoners. The van was allegedly very dark and she was instructed where to sit. During the transport, she claimed, a male prisoner in the same caged area as her within the van managed to remove his hand restraints, grab her arm, sit her on his lap, pull her pants down, and rape her. A federal appeals court, overturning summary judgment for the defendant officers on a failure to protect claim, found that there was evidence from which a factfinder could conclude that they acted with deliberate indifference towards a substantial risk to her safety Whitson v. Stone County Jail, #08-1468, 2010 U.S. App. Lexis 8299 (8th Cir.).

Prisoner Assault: By Officers

     Force used at an Ohio prison against a prisoner occurred in the context of a dangerous fight between prisoners and staff members at a maximum security prison. While the plaintiff prisoner tried to "minimize" his role in the fight, he admitted to disobeying direct orders to return to his cell and arguing with officers. There was less credibility to the prisoner's version of the incident than to the version told by two officers. The force used was justified by the prisoner's aggressive actions and only force necessary under the circumstances was used. Moore v. Ohio State Penitentiary, #2007-09658, 2010 Ohio Misc. Lexis 25 (Ct. of Claims).

Prisoner Death/Injury

     An inmate who uses crutches because he is an amputee was assigned to a third story cell and fell while coming down some stairs. He sued prison officers for alleged deliberate indifference to his medical needs. Officers who made the cell assignment were entitled to rely on medical restrictions designated by medical personnel. There was some evidence to support a jury verdict for the remaining defendants, and the verdict was upheld on appeal. Bell v. Herod, #08-40682, 2010 U.S. App. Lexis 4641 (Unpub. 5th Cir.).

     A Michigan woman was booked into a county jail on a parole detainer, and started to show signs of delirium tremens ("DT"s), a life threatening condition caused by acute alcohol withdrawal. Jail officials recognized these symptoms and implemented precautions for her safety, including placing her in an observation cell and consulting a physician. Her condition worsened, however, and she started beating on the door, screaming, and hitting the walls and was moved to a padded cell. In the morning, a parole agent arrived at the jail to serve her with a notice of parole violation charges. Observing her condition as being incoherent and unaware of her identity, he decided that she was unable to be transported to another facility, or served, and he left. A videotape indicated that her last movements occurred at the time that the parole agent observed her, and when jail officials later checked on her, she was unresponsive and taken to a hospital, where she died shortly thereafter. The parole agent was entitled to summary judgment in a lawsuit over her death, as nothing that he did proximately caused her death. Smith v. County of Lenawee, #09-1703, 2010 U.S. App. Lexis 7526 (6th Cir.).

     An Ohio inmate injured during falls from an upper bunk bed claimed that his injuries were due to the fact that his handcuffs were not removed for six hours. The court found that, as to the first fall, correctional employees knew or should have known of the prisoner's medical restrictions, mandating that he sleep on a lower bunk bed, and their failure to honor this restriction proximately caused his injuries. As to the second fall, however, the prisoner himself failed to take reasonable precautions to prevent further injuries. He had been allowed to sleep on the floor, but chose instead to move to an upper bunk bed, and hid his hands and handcuffs from the view of staff members on purpose. He was therefore responsible himself for his additional injuries. Whitmore v. Ohio Dept. of Rehabilitation and Correction, #2008-10366, 2010 Ohio Misc. Lexis 24 (Ct. of Claims).

Prisoner Discipline

     After a search of a concealed hole in the wall next to a bed assigned to two inmates revealed a cell phone and charger, which were contraband, a disciplinary hearing found an inmate guilty of charges relating to these items. The prisoner claimed that this violated his due process rights since the items were in a common area adjoining the sleeping areas of five prisoners, all of whom denied possession. He argued that there was no evidence of his constructive possession of the items. Rejecting this argument, the appeals court found that there was "some" evidence of his constructive possession, and that this was all that due process required. Flannagan v. Tamez, #09-10322, 2010 U.S. App. Lexis 4772 (Unpub. 5th Cir.).

     An Ohio prisoner was accused of unauthorized consumption of drugs or an intoxicating substance and found guilty of disciplinary charges but this determination was subsequently reversed by the director of the state Department of Rehabilitation and Correction. In the prisoner's subsequent federal civil rights lawsuit, the court held that the prisoner had waived the right to call witnesses at his hearing, and that even if that was not true, there would have been no constitutional violation, as he had no protected liberty interest in avoiding administrative segregation, or the wearing of a different colored uniform, which were the sanctions imposed. These did not amount to atypical and significant hardships requiring due process protections before their imposition. David v. Lake Erie Correctional Inst., #2009-A-0022, 2010 Ohio App. Lexis 1083 (11th Dist.).

Prisoner Suicide

     A prisoner whose wife killed herself after she was released from jail sued the sheriff's department, the jail, and a number of jailers, claiming that their deliberate indifference caused her death. Reversing the dismissal of the lawsuit, the federal appeals court ruled that the trial court should have "liberally construed" the complaint as setting forth a theory that could proceed--specifically that the defendants failed to provide the decedent with adequate medical care and were deliberately indifferent to her needs, especially when she was in a mental hospital while in state custody. The husband allegedly tried to get guards to investigate his wife's suicide threats, but that instead of doing so, they mocked him and ignored his requests. Garrett v. Belmont County Sheriff's Dept., #08-3978, 2010 U.S. App. Lexis 6770 (Unpub. 6th Cir.).

Prisoner Transport

     A pretrial detainee sued, claiming that an officer violated his constitutional rights by transporting him in a dog cage in a K-9 vehicle during a 90-minute trip to the county courthouse. A federal appeals court found that the defendant officer was not entitled to summary judgment on the basis of qualified immunity because, based on the totality of the circumstances, the decision to transport the detainee in this manner, if true, violated contemporary concepts of dignity, civilized standards, "humanity, and decency." This should have been obvious to the officer based on both prior case law and "common sense." Morris v. Zefferi, #08-3141, 2010 U.S. App. Lexis 7514 (8th Cir.).

Religion

     An Illinois prisoner argued that forcing him to cut his dreadlocks, which he wore for religious reasons, violated his constitutional and statutory rights. The court found, however, that the policy at issue was justified by undisputed evidence that matted hair created a danger to both guards and officers from concealed weapons and other contraband. The court also found no evidence of unlawful "retaliation" in punishing the prisoner for disobeying direct orders to cut his hair, and commented that the prisoner's claim that prison authorities inconsistently implemented their hair length policy did not show a constitutional violation in the absence of any evidence that deviations from the policy were for illegitimate reasons. Williams v. Snyder, #08-1908, 2010 U.S. App. Lexis 4777 (Unpub. 7th Cir.).

     A New York prisoner contended that his confinement under a tuberculosis hold policy based on his refusal to submit to TB testing violated his right to religious freedom and that he was entitled to a religious exemption from the policy. The court found that it had not been clearly established that the policy was not reasonably related to a legitimate penological interest in preventing the spread of disease or that it was not the least restrictive means of furthering that interest. Defendant employees were therefore entitled to qualified immunity. The court also found no violation of the prisoner's Eighth Amendment or due process rights in placing him in TB hold confinement. Redd v. Wright, #06-4315, 2010 U.S. App. Lexis 4898 (2nd Cir.).

Sexual Assault

****Editor's Case Alert****  

     A former Ohio prisoner claimed that she was sexually assaulted by a prison guard on two successive nights, the second incident occurring on the guard's last day on the job, and that prison officials failed to properly protect her against the second assault, as well as retaliating against her for reporting the incident. A jury found in favor of her and against the two prison officials, awarding $625,000 in compensatory and punitive damages. A federal appeals court found that the two officials were entitled to qualified immunity, as they did not act with deliberate indifference to a known risk of harm. The U.S. Supreme Court has granted review of this case, and the Court's decision will be reported in a future issue of this publication. Ortiz v. Jordan, 316 Fed. Appx. 449, 2009 U.S. App. Lexis 5245 (Unpub. 6th Cir.), cert. granted, #09-737, 2010 U.S. Lexis 3524.

Strip Searches: Prisoners

     A federal appeals court held that an alleged strip search of a male prisoner by a female guard in the absence of exigent circumstances represented an arguable Fourth Amendment claim, so that a lawsuit based on such allegations should not have been dismissed. The court also found, however, that excessive force was not used against the prisoner. Hamer v. Jones, #09-20431, 2010 U.S. App. Lexis 2688 (Unpub. 11th Cir.).

     A class action lawsuit claimed that a county sheriff and his staff at the jail subjected persons detained there to needlessly humiliating strip searches, including body cavity searches. The trial court ruled that the defendants were not entitled to judgment as a matter of law, since the lawsuit concerned the manner with which the searches were carried out, rather than the fact of these searches, further noting that the defendants were raising the contention that they were entitled to some form of immunity for the first time even though the lawsuit had been pending for three years. A jury returned a verdict in favor of the class of prisoners on liability, but before the trial on the issue of damages could proceed, the defendants appealed. The appeals court held that denial of the motion for judgment as a matter of law was not immediately appealable, and further, was frivolous. Mercado v. Dart, #09-3092, 2010 U.S. App. Lexis 8788 (7th Cir.).

****Editor's Case Alert****  

     New York City has reached a $33 million settlement in a lawsuit concerning strip searches allegedly conducted on approximately 100,000 pretrial detainees arraigned on misdemeanors and lesser offenses even though there was no reasonable suspicion to believe they were concealing drugs, weapons of other contraband. These strip searches required groups of detainees to fully undress in front of each other and in front of multiple guards, lift their genitals or breasts, spread their buttocks, cough while squatting, and allow guards to inspect their private body cavities. McBean v. City of New York, #02-Civ.-05426 (S.D.N.Y.). The settlement was reached March 17, 2010, and has been preliminarily approved by the court. Documents concerning the case, including the stipulation of settlement, may be viewed or downloaded at http://nycstripsearch.com/More_Information/Court_Documents.aspx

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     National Institute of Corrections: "National Institute of Corrections: Serving Jails for More Than 30 Years." Discusses the history of the National Institute of Corrections’ Jails Division (since its creation in 1976). Topics covered include: jail administration—training program and networks, documents and DVDs, and technical assistance; inmate behavior management—training, documents and DVDs, and technical assistance; new jail planning—technical assistance, training, documents and DVDs; and jail standards and inspections. (May 7, 2010).

     Prison Growth: "Economic Impacts of Prison Growth," Congressional Research Service (April 13, 2010).

     Reentry Programs: The National Institute of Corrections and project partner the Urban Institute launched the Transition from Jail to Community (TJC) initiative in 2007. TJC efforts prepare and support jail inmates for a successful return to their communities. The TJC Implementation Toolkit is now online. This web-based learning resource guides local criminal justice agencies and community-based organizations through implementation of the TJC model, in whole or in part. Users of the toolkit can navigate through the nine modules at their own pace. Click here to view the toolkit. Learn more about NIC's Reentry/Transition models for prisons and jails. (May 7, 2010).

     Telephone Use and Issues: "Technical Issues in Checking Contraband Cell Phone Use in Jails and Prisons." This article highlights the pros and cons of jamming the use of cell phones by inmates. Topics discussed include: the effectiveness of jamming; the jamming of homes and businesses close to the correctional facility; the negation of useful intelligence; radio frequency (RF) utilization; and specially trained dogs for detecting contraband cell phones.

Reference:

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

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