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Access to Courts/Legal Info

     A prison's action in failing to mail a prisoner's notice of appeal until one day after it was due, despite the fact that the prisoner had given it to a prison official seven days before the due date, violated his right of access to the courts, because it precluded him from pursuing a statutory right of appeal from his conviction. Dorn v. Lafler, #08-1594, 2010 U.S. App. Lexis 7020 (6th Cir.).

Defenses: Statute of Limitations

     A former inmate claimed that she was sexually assaulted by a corrections officer, and sued for intentional infliction of emotional distress and negligent supervision. She claimed that her failure to file her lawsuit within a two-year statute of limitations should be excused, based on her alleged inability to pursue her legal remedies during her imprisonment because of the officer's continuing threats. The court rejected this, as the officer had not been employed at the facility for five years before the lawsuit was filed. Gilley v. Ohio Reformatory for Women, #2009-05030, 2010 Ohio Misc. Lexis 41 (Ct. of Claims).

First Amendment

     An inmate who had worked in a prison library claimed that the librarian unlawfully retaliated against him in violation of his First Amendment rights because he had criticized library policies. In response, the librarian allegedly initiated a series of false disciplinary actions against him as well as false work evaluations, disposing of his personal materials, and denying access to the library. The court ruled, however, that the prisoner's speech was unprotected by the First Amendment as a matter of law. With regard to his criticisms of the library's policies, he had openly challenged directives issued by the librarian in front of other inmate law clerks, which was inconsistent with legitimate penological interests, which was also true of the "confrontational" manner in which he complained about his personal material, interfering with prison discipline and order. Watkins v. Kasper, #08-3105, 2010 U.S. App. Lexis 6954 (7th Cir.).

Medical Care

     A prisoner who complained of back pain was seen by prison medical staff several times, diagnosed as suffering from degenerative disc disease, and provided with a wheelchair, medications, an early meal pass and a "lay idle" pass. He also underwent surgery, which was recommended by an orthopedic specialist, but continued to have problems with incontinence and numbness in his extremities after the surgery. His lawsuit claimed that these difficulties were caused by a delay in approving the surgery. The defendant doctor, however, was shown to have responded reasonably to the inmate's back pain complaints, and could not be found to have acted with deliberate indifference. White v. Buser, #09-3322, 2010 U.S. App. Lexis 6823 (Unpub. 10th Cir.).

     An inmate failed to show that the defendant sheriff had personally been involved in or had personal knowledge of his allegedly inadequate medical care, so he could not be held liable in his individual capacity. On claims against the sheriff in his official capacity, the prisoner did not claim that an alleged delay in providing him with medication had caused him any injury. Braga v. Hodgson, #08-2331, 2010 U.S. App. Lexis 9899 (1st Cir.).

     A prison commissioner could not be held liable for alleged inadequate medical care provided to a prisoner, in the absence of any showing that he was personally responsible for the policies of private medical services contractors that supposedly led to a delay in needed knee surgery. Johnson v. Stempler, #08-3434, 2010 U.S. App. Lexis 6635 (Unpub. 3rd Cir.).

Medical Care: Dental

     A dentist began to extract a prisoner's wisdom tooth, but "stopped short" when he saw nerve roots, and concluded that proceeding with the procedure could damage the prisoner's jaw. The dentist referred the prisoner to an oral surgeon, and prescribed Ibuprofen for pain. Four days later, the prisoner claimed that his mouth was infected and that he needed emergency treatment, but at that time the dentist was off work for a week. Upon his return to work, he scheduled an appointment with the prisoner for the next day. A federal appeals court ruled that the defendants were properly granted summary judgment in an inadequate medical care lawsuit. There was no showing that the dentist had acted with deliberate indifference and the assertion that he should have prescribed antibiotics for the prisoner was, at most, a claim of negligence or malpractice, which was insufficient to support a federal civil rights claim. Claims against a nurse, a dental hygienist, and other defendants also failed for lack of evidence of deliberate indifference. Maddox v. Jones, #09-3523, 2010 U.S. App. Lexis 7078 (Unpub. 7th Cir.).

     A prisoner who claimed that he suffered a serious toothache, and that a doctor and nurse had refused to refer him to a dentist for treatment, adequately created a genuine issue of fact as to whether they acted with deliberate indifference, subjecting him to two months of serious but avoidable pain. He failed to show, however, that a jail administrator was deliberately indifferent to his need for treatment. Berry v. Peterman, #09-3557, 2010 U.S. App. Lexis 9195 (7th Cir.).

Prison and Jail Conditions: General

     A prisoner's assertion that he and fellow prisoners did not "enjoy" the food provided did not suffice for a claim of denial of a basic human need in violation of the Eighth Amendment. His various complaints about prison heating, air conditioning, small showers, dirty mops, and repeated playing of TV shows also failed to show unconstitutional conditions. Muniz v. Richardson, #09-2229, 2010 U.S. App. Lexis 6703 (Unpub. 10th Cir.).

Prisoner Assault: By Inmate

     Officials at a treatment center for sex offenders were properly denied summary judgment in a lawsuit claiming that the were deliberately indifferent to the risk that he would be assaulted by another offender. He adequately alleged that it was "readily apparent" that placing him in a room with another sex offender who then assaulted him subjected him to an objectively serious risk of harm. There were also sufficient facts from which a jury could find that a defendant acted with deliberate indifference to a serious medical need by failing to provide him with prescribed psychological treatment. Nelson v. Shuffman, #09-2225, 603 F.3d 439 (8th Cir. 2009).

Prisoner Assault: By Officers

     A correctional officer was entitled to summary judgment in a prisoner's excessive force lawsuit when no reasonable jury could conclude that the officer had acted with "such wantonness as is tantamount to a knowing willingness" that she should suffer injuries. The court rejected both a federal civil rights excessive force claim and a state law battery claim. Griffin v. Hardrick, #09-5757, 2010 U.S. App. Lexis 9752 (6th Cir.).

     While trying to remove an detainee to a padded cell because he was suffering from delirium tremens (DTs) caused by alcohol withdrawal, a deputy allegedly took him to a concrete floor headfirst. A federal appeals court ruled that there was no evidence that the deputy acted in a malicious, wanton, or sadistic manner. The detainee did not cooperate with attempts to handcuff him, and the floor was covered by mats. During the takedown, the mats apparently shifted, causing the detainee's head to hit the floor. The plaintiff could proceed, however, with a claim that the deputy then acted with deliberate indifference to the detainee's serious need for medical care for his injuries, which resulted in his death. Scarbro v. New Hanover County, #08-1644, 2010 U.S. App. Lexis 6782 (Unpub. 4th Cir.).

     A detainee claimed that excessive force was used in placing him in solitary confinement. A federal appeals court ordered that the prisoner should be appointed a lawyer to present argument as to whether, at the time, he had been a pretrial detainee. If he had, the court noted, he could not be subjected to segregation or other heightened restraints under 2nd Circuit precedents if no pre-deprivation hearing was held to determine whether he had violated any rule, since pre-trial detainees cannot otherwise be punished. In this case, there was no evidence in the record that the plaintiff violated any rule or that he was provided with a pre-deprivation hearing. His claim that he was placed in solitary confinement and subjected to excessive force had "merit sufficient to warrant appointment of counsel." Johnston v. Maha, #08-6048, 2010 U.S. App. Lexis 10373 (2nd Cir.).

Procedural: Summary Judgment

     A prisoner was allegedly forced to shower in a dirty shower area without proper footwear, and three days later became very sick with flu-like symptoms and a swollen leg. While a correctional officer saw this and allegedly said, "that looks really bad," the prisoner was not taken to the medical department until three days later. A federal appeals court ruled that the trial court improperly granted the defendant officer's untimely oral motion for summary judgment, after jury selection, and on the eve of trial, in violation of Federal Rule of Civil Procedure 6(b), and denied the plaintiff inmate an adequate opportunity to respond to the motion. Drippe v. Tobelinski, #08-4616, 2010 U.S. App. Lexis 9990 (3rd Cir.).

Private Prisons and Entities

     A federal prisoner was injured in an accident, slipping on a cart left in a doorway. He was referred to an orthopedic clinic outside the prison. Prior to being transported there, a prison employee allegedly required him to put on a jumpsuit, despite his protests that putting his arms through the sleeves would cause him severe pain. Two employees also allegedly forced him to wear a "black box" mechanical restraint device despite his complaints about the resulting pain. He also claimed that a doctor's direction that his left elbow be put into a posterior splint for two weeks was not followed at the prison because of limitations in staffing and facilities. He was allegedly unable to feed or bathe himself for several weeks, and prison employees failed to make alternative arrangements for him. He filed a federal civil rights lawsuit against the private company that ran the prison under a contract with the federal Bureau of Prisons, as well as a number of their employees, claiming violation of his constitutional rights. Overturning dismissal of the lawsuit, a federal appeals court ruled that the company's employees acted under color of federal law for purposes of a civil rights lawsuit. Pollard v. GEO Group, Inc., #07-16112, 2010 U.S. App. Lexis 11496 (9th Cir.).

Public Protection

     Nurses at a county jail were held hostage by inmates who escaped from their cells. During the recapture of the inmates, one of the nurses was shot by police. The nurses sought to sue the county and a private corporation that operated the jail, seeking damages. The defendants argued that the nurses' exclusive remedy was workers' compensation, so they could not sue. A Florida appeals court found that the nurses' claims were entirely based on allegations of negligence, so that an intentional torts exception to workers' comp exclusivity did not apply. Summary judgment for the defendants was affirmed. Hunt v. Corrections Corporation of America, #1D09-1260, 2010 Fla. App. Lexis 6661 (1st Dist.).

Religion

     A prisoner claimed that a 16-day denial of kosher food, and multiple mistakes in administering a kosher food program violated his right to practice his religion. The court found that the instances of him being served non-kosher food were isolated incidents and mistakes, with no evidence that prison staff intentionally served him non-kosher food. The court ordered that the prisoner be allowed to amend his complaint, however, to provide further detail on claims that he had been wrongfully removed from the kosher meals program because of the discovery of a non-kosher food item in his cell, and that he was wrongfully refused reinstatement in the program for a time because prison officials, for some reason, believed him to be Muslim, rather than Jewish, despite his consistent assertion, throughout his incarceration, that he was Jewish. Colvin v. Caruso, #08-2441 2010 U.S. App. Lexis 9753 (6th Cir.).

Segregation: Administrative

     A prisoner claimed that false information was used to reclassify him and segregate him. Claims relating to the alleged placement of false information in his file were barred, as they involved the same defendants and same motives as were involved in a previous civil rights lawsuit, and could have been addressed in that prior lawsuit, as the information was known by the prisoner at that time. The prisoner's claim that he was incorrectly reclassified based on an escape attempt was rejected. A prisoner does not ordinarily have a due process right to a particular classification, in the absence of the reclassification imposing an "atypical and significant hardship," and no such extreme conditions were present in this case. Muniz v. Moore, #09-2199, 2010 U.S. App. Lexis 6695 (Unpub. 10th Cir.).

Sex Offenders

     The U.S. Supreme Court rejected claims that Congress exceeded its constitutional authority in enacting 18 U.S.C. Sec. 4248, providing for the civil commitment of sexually dangerous federal prisoners beyond the date that they would otherwise be released. Congress had such authority under the "necessary and proper" clause of the Constitution, and Congress has long been involved in the delivery of mental health care to federal prisoners. The statute was supported by sound reasons, particularly the need to protect the community from the danger such prisoners may pose. The Court rejected arguments that the statute invaded the province of state sovereignty in violation of the Tenth Amendment, particularly as, under the statute, states may assert their authority on such prisoners domiciled or tried within their jurisdiction if they wish to do so, which would result in the immediate transfer of the prisoner to state custody. The Court also found that the legislation was narrow in scope, and that its ruling did not confer on Congress a general police power, which continues to remain with the states. The Court stated that it was not deciding any claim that the law violates equal protection or substantive or procedural due process, claims that the plaintiffs "are free to pursue" on remand. U.S. v. Comstock, #08–1224, 2010 U.S. Lexis 3879.

     A Texas parolee, who has never been convicted of a sex offense, claimed that his due process rights were violated when sex offender conditions were imposed on his mandatory supervision, including registration as a sex offender and participation in sex offender therapy. He was convicted of the murder of a nine-year-old girl and sentenced to thirty-years imprisonment. The parole board imposed sex offender conditions, believing that the prisoner had sexually assaulted the girl he murdered, but it was unclear from the record how they determined this. Because of the conditions imposed on him, he was allegedly unable to obtain employment or arrange for a residence, resulting in him remaining in custody. A federal appeals court found that the prisoner was denied due process as a defendant's parole may only be conditioned on sex offender registration and therapy, in the absence of conviction for a sex offense, if he is given a due process hearing which determines that he poses a threat to society because of his lack of sexual control. In this case, while the prisoner received notice that the board was considering imposing sex offender restrictions on him, and was told that he could submit a statement in opposition, he was not allowed to review the evidence against him being relied on, and was therefore unable to correct or challenge any misinformation. He was also not allowed to appear before the board, preventing him from presenting any mitigating or clarifying evidence. He was also entitled to confront and cross-examine witnesses, absent good cause shown why this right should not be granted, and a written statement as to the evidence relied on and the reasons for the decision. Meza v. Livingston, #09-50367, 2010 U.S. App. Lexis 10321 (5th Cir.).

Sexual Harassment

****Editor's Case Alert****  

     A federal appeals court ruled that the Florida Department of Corrections can be liable, under Title VII of the Civil Rights Act of 1964, for failing to remedy a sexually hostile work environment that male inmates allegedly created for female employees at a correctional facility by openly masturbating towards them, calling them sexually charged terms, and stating, in graphic detail, the sex acts they wished to perform with them.. The employees included nurses, a doctor, and a classification officer. A nurse stated that "99.9% of the time," inmate reports of emergencies in the housing units were "bogus," and simply designed to get nurses sent to the unit "to have the entertainment for the evening." The appeals court upheld a jury award of $45,000 in damages to each of 14 employees. While the facility had a sexual harassment policy, it only covered misconduct by fellow employees, and failed to cover acts by prisoners. The court found that a reasonable jury could have concluded that prison officials should have attempted to enforce a dress code requiring male inmates to wear pants when female employees were in the dorms. Beckford v. Dept. of Corr., #09-11540, 2010 U.S. App. Lexis 9452 (11th Cir.).

     An Ohio inmate claimed that a prison nurse touched him in an inappropriate sexual manner. He sought damages against the state correctional agency for negligence. The Ohio Court of Claims ruled that the defendant agency was not vicariously liable for the nurse's alleged actions, since an employer is not liable for an employee's "self-serving acts" that do not further or benefit the employer's business. Claims for negligent hiring, retention, and supervision were also rejected, since there was no evidence that there was any reason to suspect that the nurse would touch a prisoner in this manner. Garrett v. Ohio Dept. of Rehabilitation and Correction, #2009-04858, 2010 Ohio Misc. Lexis 73 (Ct. of Claims).

Strip Searches: Prisoners

     Even if a prisoner was, as he claimed, routinely subjected to strip searches when entering and exiting a cell in the Segregated Housing Unit (SHU), his rights were not violated, since prison officials could conduct visual body cavity searches in a reasonable manner, and there was no evidence of anything unreasonable about these searches. Millhouse v. Arbasak, #09-2709, 2010 U.S. App. Lexis 6875 (Unpub. 3rd Cir.).

Voting

     Rejecting a constitutional challenge to Arizona's felon disenfranchisement statute, a federal appeals court ruled that states are allowed, under the 14th Amendment, to deny the vote to felons, and that this is true whether or not their offenses were recognized as felonies at common law. The court also held that a requirement that felons complete the terms of their sentences before having their voting rights restored was rationally related to legitimate state interests and does not violate the felons' constitutional rights. Harvey v. Brewer, #08-17253, 12010 U.S. App. Lexis 10822 (9th Cir.).

Youthful Prisoners

     The U.S. Supreme Court held that the Eighth Amendment's prohibition on cruel and unusual punishment bars the sentencing of a juvenile offender to life imprisonment without the possibility of parole for any crime short of homicide. In this case, the offender was 16 when he committed armed burglary and another crime. He was sentenced to probation, with adjudication of guilt withheld, but was later found to have violated probation by committing additional crimes, found guilty of the earlier offenses, and sentenced to life in prison. The sentence left him with no possibility of release except executive clemency, since Florida, where he was sentenced, has abolished its parole system for prisoners sentenced after 1983. Graham v. Florida, #08–7412, 2010 U.S. Lexis 3881.

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     Juvenile Offenders: "Addressing the Unmet Educational Needs of Children and Youth in the Juvenile Justice and Child Welfare Systems," by Peter Leone and Lois Weinberg, Center for Juvenile Justice Reform, Georgetown University (74 pgs., May 2010).

     Statistics: Jail Inmates at Midyear 2009 - Statistical Tables by Todd D. Minton. June 3, 2010 NCJ 230122. Presents data on numbers of jails and jail inmates at midyear 2009 and analyzes patterns of growth from 2000 through 2009. These statistical tables include data on rated capacity of jails, percent of capacity occupied, and capacity added. They provide estimates of admissions to jails and detail the volume of movement among the jail population. This web document also includes total numbers for jail inmates by sex, race, and Hispanic origin. Standard errors for jail estimates are included.

     Websites: The Pace Law Library’s Guide to Prisoners’ Rights has been recently completely revamped.

Reference:

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

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