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Employment Issues

     Reacting to reports of male correctional officers engaging in sexual abuse of female prisoners, the State of Nevada adopted a policy of hiring only female correctional lieutenants at a women's prison to serve as shift supervisors. Four male correctional officers filed a Title VII lawsuit challenging the policy as unlawful sex discrimination. Overturning summary judgment for the defendants, a federal appeals court found that they had not shown that "all or nearly all" males, if placed in supervisory positions, would tolerate male officers' sexual abuse of female inmates, or that an individual assessment of applicants on this issue would be impossible or highly impractical. The court further emphasized that the law protects the ability of applicants and employees to pursue their career goals without sex discrimination, and that the fact that all those of the same sex faced the same disadvantage did not justify the policy. The court rejected arguments that the policy only imposed a minimal restriction on male prison employees' promotional opportunities, or that the sex discrimination, in this instance, constituted a bona fide occupational qualification. Breiner v. Nev. Dep't of Corr., #09-15568, 2010 U.S. App. Lexis 13933 (9th Cir.).

Frivolous Lawsuits

     In a prisoner's 82-page complaint, he claimed, among other things, that prison officials were conspiring to kill him or encouraging other prisoners to do so. But these claims were stated in a conclusory manner with no supporting facts. In light of this, and the prisoner's past history of filing meritless lawsuits, it was apparent that his allegations were based on paranoid delusions, so his lawsuit was properly dismissed as frivolous regardless of whether or not it was barred by the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g). Walton v. Walker, #09-2617, 2010 U.S. App. Lexis 2338 (Unpub. 7th Cir.).

Inmate Funds

     A federal appeals court rejected a prisoner's argument that the Federal Bureau of Prisons (BOP) exceeded its authority by establishing a payment schedule for deducting money from his inmate account to pay a fine that the sentencing court imposed on him. 18 U.S.C.S. § 3572(d)(1) of the Mandatory Victims Restitution Act requires that such fines or restitution must be paid immediately unless a court explicitly orders installment payments or payment at a future date, which was not the case here. The sentencing court found that the prisoner was able to earn the $750 fine through prison work programs. Gonzalez-Rivera v. Holt, #09-3524, 2010 U.S. App. Lexis 1404 (Unpub. 3rd Cir.).

Jail & Prison Fires

     A pretrial detainee argued that county jail personnel failed to adequately ensure his safety when a fire broke out at the facility. But any claim that correctional officers acted in disregard of the jail's smoking policy was refuted by undisputed evidence that as recently as five days before the fire, they were engaged in conducting broad searches for contraband. The claim that the jail had inoperable sprinklers and lacked extra fire equipment, specifically oxygen tanks, was not sufficient to show deliberate indifference, given those searches and the presence of fire extinguishers and smoke detectors. The appeals court ruled that conditions at the jail were not dangerous enough to violate "contemporary standards of decency." Davis v. Oregon County, #09-2700, 2010 U.S. App. Lexis 11817 (8th Cir.).

     * For more on this topic, see Legal Aspects of Jail and Prison Fires, 2008 (12) AELE Mo. L. J. 301.

Mail

     A federal appeals court reversed the trial court's dismissal of a prisoner's claims concerning the opening of legal mail, denial of access to the law library, and failing to respond to grievances as moot based on the prisoner's transfer from the county jail. The transfer came just before the court was to rule on class action certification, with the prisoner serving as the named class representative. The appeals court found that the claims of every member of proposed class of detainees were "inherently transitory" since, at the discretion of state correctional officials, any class member could be transferred to another facility at any time. This was shown by the plaintiff's transfer 13 days after he moved to certify a class action. Additionally, the same claims were likely to recur with respect to the class, as the lawsuit asserted that the alleged problems were "pervasive." Further proceedings were therefore ordered on both the detainee's motion for class certification and the sheriff's motion to dismiss on grounds of failure to state a claim. Olson v. Brown, #09-2728, 2010 U.S. App. Lexis 2438 (7th Cir.).

Medical Care

     While detained by immigration authorities, a prisoner claimed that he "persistently" sought treatment for a bleeding, suppurating lesion. While a Public Health Service (PHS) physician's assistant and three outside specialists repeatedly advised that he urgently needed a biopsy, a PHS physician and a commissioned PHS officer allegedly denied that request. After the prisoner's release from custody, he had tests that confirmed the presence of metastatic cancer. He filed a lawsuit asserting both medical negligence claims against the U.S. government under the Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680, and constitutional claims against the individual defendants under Bivens v. Six Unknown Fed. Narcotics Officers, #301, 403 U.S. 388 (1971). The plaintiff subsequently died, and the lawsuit was continued by his estate. The U.S. Supreme Court ruled that, under 42 U.S.C. Sec. 233(a), the Federal Tort Claims Act is the exclusive remedy for any claims against any PHS employees or officers for damages for personal injury, including death, arising out of the performance of medical functions while acting within the scope of employment. As a result, the constitutional claims under Bivens were barred. Hui v. Castaneda, #08-1529, 130 S. Ct. 1845 (2010).

     A prisoner claimed that he was not afforded proper medical treatment after undergoing testicular surgery. A doctor and assistant, however, provided affidavits and the prisoner's medical records showing that he received treatment and care for his ongoing testicular problems. Additionally, while the prisoner argued that he should have been given crutches or a wheelchair after the surgery, the doctor stated that neither was medically required. Further, there were records showing that he did, indeed, receive crutches after a hematoma was removed, and that he received pain medication and other care after both the testicular surgery and the removal of the hematoma. There was no showing of deliberate indifference. Watts v. Herbik, #09-4144, 2010 U.S. App. Lexis 2707 (Unpub. 3rd Cir.).

     While a prisoner may not have received attention for his burns as quickly as he wished, or even as promptly as would be ideal, there was no deliberate indifference in treating his injuries. Indeed, every time he sought medical attention, it was provided either immediately or within a few hours. Additionally, when the prison staff believed that an outside evaluation of his burns was needed, he was taken to a hospital. The court also held that the Bureau of Prison's Inmate Accident Compensation procedures set forth in 28 C.F.R. § 301.101 et seq. was the plaintiff's exclusive remedy against the government, so that the court lacked jurisdiction to address his Federal Tort Claims Act claim. Walker v. Reese, #08-60994, 2010 U.S. App. Lexis 2409 (Unpub. 5th Cir.).

     A prisoner failed to show that prison nurses acted with deliberate indifference by allegedly denying him pain medications and anticoagulant injections, particularly as they had no authority to prescribe drugs or commence a different course of treatment. Claims against a nurse manager were also properly dismissed since she never saw the plaintiff and took no actions relating to his treatment. Thayer v. Adams, #08-20817, 2010 U.S. App. Lexis 2392 (Unpub. 5th Cir.).

Officer Assault: By Inmate

     An prisoner attacked a corrections officer preparing to conduct a pat down search, punching her, knocking her to the ground, and taking her baton, which he used to strike her. The officer filed suit against the Ohio state Department of Rehabilitation and Corrections. The court ruled that the Department had refuted the argument that its decisions regarding the deployment of security devices and staff members constituted conduct equivalent to an intent to exposure her to injury. These decisions were based on both safety concerns and financial constraints. The officer was experienced and capable and there was no evidence that the Department had reason to believe that she was "substantially certain" to be injured by coming into contact with the prisoner, or that the Department failed to act to remedy a dangerous condition. Abrams v. Dept. of Rehabilitation and Correction, #2006-04679, 2010 Ohio Misc. Lexis 30 (Ct. of Claims).

Prison and Jail Conditions: General

     A Kansas prisoner claimed that prison heat was not turned on during a cold period in late October and early November. A federal appeals court, while finding that the average temperatures during that time period were lower than the climate data submitted by prison officials suggested, ruled that the temperatures were not severe enough to make the alleged lack of heat an Eighth Amendment violation. There was evidence that an extra blanket was issued to prisoners and no indication that prisoners were unable to wear enough clothes to stay warm. Strope v. McKune, #09-3283, 2010 U.S. App. Lexis 11956 (Unpub. 10th Cir.).

Prison Litigation Reform Act: Similar State Statutes

     A Pennsylvania prisoner filed a lawsuit claiming that a phone company violated various statutory and constitutional provisions by charging increased local call charges and engaging in price gouging, double taxing, hidden fees, and selling prepaid phone cards at inflated prices. He also contended that the Governor's Office of Administration failed to provide necessary safeguards or oversight to protect prisoners from such practices. The court ruled that the lawsuit was essentially over issues of prison conditions, and therefore subject to the requirements of a state Prison Litigation Reform Act. Under that Act, the lawsuit was properly dismissed, as the plaintiff was an abusive litigator, having "three strikes" because two prior lawsuits were dismissed for failure to state a cause of action, and a third prior lawsuit was dismissed for failure to prosecute. Smolsky v. Governor's Office of Administration and Globel Tel*Link Corporation, #207 M.D. 2009, 2010 Pa. Commw. Lexis 114.

Prisoner Assault: By Inmates

     A prisoner attacked by his cellmate, suffering injuries including severe bleeding from lacerations, claimed that prison employees violated his rights by assigning him to a cell with another prisoner known to be dangerous, and by failing to provide adequate medical attention following the attack. A federal appeals court found that the prisoner had failed to show how the defendants acted with deliberate indifference to his serious medical needs. The court ordered further proceedings, however, as to the prisoner's claims against a former guard for failure to protect, finding that it was unreasonable to have dismissed claims against the guard based on the prisoner's failure to serve him. "It is unreasonable to expect incarcerated and unrepresented prisoner--litigants to provide the current addresses of prison-guard defendants who no longer work at the prison. Thus, we conclude that, as long as the court-appointed agent can locate the prison-guard defendant with reasonable effort," service should be obtained. Claims against the warden for failure to protect the prisoner against the assault were properly rejected, as the prisoner's prior grievance asking to be transferred because his cellmate was "unhygienic" did not show that the warden was aware of, but disregarded, a serious risk of assault. Richardson v. Johnson, #08-16795, 598 F.3d 734 (11th Cir. 2010).

     A prisoner's cellmate attacked and killed him on the first night they were housed together. His estate filed a federal civil rights lawsuit over the alleged failure to protect him against the assault. No evidence was presented that would indicate that the individual defendants had any knowledge of the risk to the prisoner that would indicate that they acted with deliberate indifference. Additionally, as to money damage claims against state officials in their official capacities, the Texas Tort Claims Act did not waive Eleventh Amendment immunity in federal court. Walker v. Livingston, #09-20508, 2010 U.S. App. Lexis 12391 (Unpub. 5th Cir.).

Prisoner Discipline

     A prisoner was observed reaching into his pants during a visit with his fiancee, and a search of her revealed pills that she had not had upon entering the visiting room. The prisoner was convicted of disciplinary charges of smuggling, providing medication to another person, and violating visitation rules. An intermediate N.Y. appeals court held that the charges were adequately supported by substantial evidence, based on the misbehavior report, documentary evidence, and hearing testimony. The prisoner was, however, entitled to see any statements made by his fiancee to investigators, absent any indication that she had requested anonymity, been promised anonymity, or was a confidential informant. He was also entitled to a copy of her letter appealing the suspension of her contact visitation privileges, and to copies of videotapes relating to the incident and copies of a memo written by corrections officers concerning the charges. Gomez v. Fischer, #506729, 2010 N.Y. App. Div. Lexis 4589 (3rd Dept.).

Prisoner Suicide

     A juvenile pretrial detainee segregated from adult prisoners committed suicide in jail. A federal appeals court held that a jail nurse was entitled to summary judgment, as there was no evidence that she had acted with deliberate indifference to a known risk that the youth was "in a substantial danger" of killing himself. Similarly, there was no evidence that a correctional officer knew that the detainee was suicidal, so that his failure to check his cell every 15 minutes or to search it did not constitute deliberate indifference. Claims against supervisors and the county were also rejected as to the suicide, as there was no showing of an underlying constitutional violation. Simmons v. Navajo County, #08-15522, 2010 U.S. App. Lexis 12858 (9th Cir.).

     * For more on this topic, see Civil Liability for Prisoner Suicide, 2007 (2) AELE Mo. L.J. 301.

Private Prisons and Entities

     A Washington state prisoner filed a federal civil rights lawsuit against a Jewish religious congregation that contracted with the prison to provide services to prisoners, and its president. He claimed that the defendants improperly denied or substantially burdened his access to Jewish religious materials and services. Reversing the dismissal of the lawsuit, a federal appeals court, viewing the evidence in the light most favorable to the plaintiff, concluded that these private parties acted under color of state law. The defendants and the prison allegedly implemented policies intended to prevent non-Jewish prisoners from participating in the Jewish religious services and programs provided. Prisoners were presumed Jewish if they were either born to a Jewish mother or had undergone a formal conversion. The plaintiff indicated a Jewish religious preference and requested a kosher diet, a Torah, a Jewish calendar, and consultation with a rabbi. He was denied these requests after he failed to complete a questionnaire as to whether his mother was Jewish or whether he had formally converted to Judaism. Florer v. Congregation Pidyon Shevuyim, #07-35866, 603 F.3d 1118 (9th Cir. 2010).

Public Protection

****Editor's Case Alert****  

     The State of California has reached a $20 million settlement with Jaycee Dugard, who was kidnapped in 1991 at age 11 and found in August of 2009 living in a shed in the backyard of Phillip Garrido, a registered sex offender who had been on parole since January of 1988. Garrido allegedly fathered two children with her, and he and his wife have been charged with 29 felonies in connection with the woman's captivity. The state attorney general's office issued a report stating that the state Department of Corrections and Rehabilitation failed to properly keep tabs on Garrido or properly supervise the officers assigned to his case. "While it is true that Garrido's California parole was never officially violated, our review shows that Garrido committed numerous parole violations and that the department failed to properly supervise Garrido and missed numerous opportunities to discover his victims." The report also indicates that, at one point, parole officers visiting Garrido actually spoke to Dugard and one of her daughters, but failed to investigate their identities or their relationship to the parolee. The settlement will go to the woman, now 30, and her daughters.

Religion

     A Muslim woman claimed that her rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Sec. 2000cc-1 et seq. were violated when she was required to remove her "hijab" headscarf in public while she was being held on two occasions between 9 a.m. and 4:30 p.m. in a court holding cell pending the disposition by the court of her probation violation. A federal appeals court ruled that a courthouse holding cell is not an "institution" as defined in the RLUIPA, so that the Act did not apply, and the lawsuit was properly dismissed. Khatib v. Cty. of Orange, #08-56423, 603 F.3d 713 (9th Cir. 2010).

     A "secular humanist" organization sued Florida correctional officials and two religious organizations, Prisoners of Christ, Inc. and Lamb of God Ministries, Inc., asserting that payments by the state to these religious groups to support their faith-based substance abuse transitional housing programs violated a provision of the state constitution requiring "no aid" to churches or sectarian institutions. The lawsuit challenged the contracts the state entered into with the religious groups on the same basis, and also sought an order barring the state from delegating government authority and powers to religious chaplains as to the placement of offenders in the housing programs. An intermediate Florida appeals court ruled that the trial court had erred in finding the "no aid" provision of the state Constitution only applying to the context of schools, but also ruled that the plaintiff organization lacked taxpayer standing to challenge the contracts, since their claim was not a challenge to the government's taxing and spending powers, and upheld the rejection of the unlawful delegation claim. The appeals court certified to the Florida Supreme Court the question of "Whether the no-aid provision in Article I, Section 3 of the Florida Constitution prohibits the state from contracting for the provision of necessary social services by religious or sectarian entities?" Council for Secular Humanism, Inc. v. McNeil, #1D08-4713, 2010 Fla. App. Lexis 5546 (1st Dist.).

Sex Offenders

     A man currently residing in Illinois filed a federal civil rights lawsuit challenging the state's life-long sex offender registration requirement, as applied to him because of his 2003 guilty plea to a misdemeanor offense of non-consensual sexual contact in New York. He had been assured, as part of the New York plea negotiations, that he would not be required to register as a sex offender. His lawsuit was properly dismissed, as the New York court order was silent as to whether he would be required to register as a sex offender in any other state, and therefore there was no issue of Illinois failing to give "full faith and credit" to the New York court's order. Even if there had been, the court stated, New York lacks the power to dictate the means by which another state can choose to protect the public. Rosin v. Monken, #08-4132, 599 F.3d 574 (7th Cir. 2010).

     A prisoner served sixteen years for crimes of forcible rape, forcible oral copulation, and kidnapping for the purpose of committing rape. He was then sent to a state hospital for possible civil commitment. He sued state officials and psychologists for violation of his constitutional right to privacy in connection with their disclosure of his prison treatment records. Rejecting these claims, a federal appeals court found that a traditional Fourth Amendment right to privacy was "fundamentally incompatible" with the continual and close scrutiny of prisoners and their cells required for security reasons. Prisoners have no legitimate expectation of privacy in their prison treatment records when there is a legitimate penological interest in access to them. Access to such records is needed to protect other inmates and staff members from violence and communicable diseases, and to manage rehabilitation efforts. Whatever remaining constitutional right to privacy the prisoner may have had in his medical records, the California state law providing for a process for the civil commitment of sexually violent predators fell outside of it. Seaton v. Mayberg, #05-56894, 2010 U.S. App. Lexis 13335 (9th Cir.).

Segregation: Administrative

     New York prisoners placed in close custody housing for periods ranging from 22 days to 15 months argued that they were improperly confined to their cells for up to 23 hours per day, and that this had an adverse effect on their mental health and constituted solitary or "isolation" confinement. State regulations, the court found, explicitly set forth maximum lock-in times for all prisoners except those in punitive segregation or contagious disease units. The department's practice of authorizing the providing of virtually all services to these prisoners, including meals, religious services, and counseling, in their cells for up to 23 hours per day violated the specified lock-in maximums. The Department would be given an opportunity to present a plan for compliance before the court would enter an order. Jackson v. v. Horn, #401028/09, 2010 N.Y. Misc. Lexis 297 (Sup. N/Y. County).

Telephone Access and Use

     A prisoner subjected to disciplinary action claimed that a "de facto" ban on his telephone privileges violated his Eighth Amendment rights. The claim was rejected, as he had not alleged that he had suffered a significant injury or experienced an extreme deprivation. Thomas v. Drew, #09-7669, 2010 U.S. App. Lexis 3077 (Unpub. 4th Cir.).

Work Release

    A prisoner's lawsuit over his denial of participation in a work release program should be dismissed as he had not shown that he had any constitutional or statutory right to participate in such a program. Joseph v. Nelson Correctional Center, #09-7670, 2009 U.S. Dist. Lexis 122356 (E.D. La.).

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     Prisoner Deaths: Mortality in Local Jails, 2000-2007, by Margaret Noonan, July 7, 2010 NCJ 222988. Describes the specific medical conditions causing deaths in jails nationwide during an eight-year period. For the leading medical causes of mortality, comparative estimates and mortality rates are presented by gender, age, race and Hispanic origin, and the length of time served in jail. The report includes detailed statistics on causes of death as well as more acute events such as suicides, homicides and accidents. Mortality as related to the size of the jail will also be discussed. Jail inmate death rates are compared with rates in the general U.S. resident population using a direct standardization. Estimates and mortality rates for the top 50 jail jurisdictions in the United States are also presented. Highlights include the following: From 2000 through 2007, local jail administrators reported 8,110 inmate deaths in custody. Deaths in jails increased each year, from 905 in 2000 to 1,103 in 2007. The mortality rate per 100,000 local jail inmates declined from 152 deaths per 100,000 inmates to 141 per 100,000 between 2000 and 2007, while the jail inmate population increased 31% from 597,226 to 782,592. Between 2000 and 2007, the suicide rates were higher in small jails than large jails. In jails holding 50 or fewer inmates, the suicide rate was 169 per 100,000; in the largest jails, the suicide rate was 27 per 100,000 inmates. Press Release PDF (353K) ASCII file (34K) Spreadsheets (Zip format 43K)

     Sexual Harassment: Federal Bureau of Prisons Program Statement P3713.23 (2005) on Discrimination and Retaliation Complaints Processing. Includes chapter 14 on sexual harassment, including harassment by inmates.

     Statistics: Prisoners at Yearend 2009 - Advance Counts, by Heather C. West, June 23, 2010 NCJ 230189. Presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2009, collected from the National Prisoner Statistics series. This report compares changes in the prison population during 2009 to changes from yearend 2000 through yearend 2008 and explores semi-annual growth trends in the prison population from yearend 2006 through yearend 2009. Highlights include the following: At yearend 2009, state and federal correctional authorities had jurisdiction over 1,613,656 prisoners, an increase of 0.2% (3,897 prisoners) from yearend 2008. The number of prisoners under state jurisdiction declined by 2,941 prisoners (0.2%), the only decrease in the state prison population between 2000 and 2009; the federal prison population increased by 6,838 prisoners (3.4%) and accounted for all of the increase in the U.S. prison population. Twenty-four states reported decreases in their prison population during 2009, with a combined total decrease of 15,223 state prisoners; a total increase of 12,282 prisoners was reported in the remaining 26 states. Press Release PDF (149K) ASCII file (12K) Spreadsheets (Zip format 5K)

     Websites: National Association of Female Correctional Officers.

Reference:

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

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