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Access to Courts/Legal Info

     A former inmate detained for approximately seven months following Hurricane Katrina failed to establish that the warden violated either his First Amendment right of access to the courts or his Fourteenth Amendment right to due process. While he may not have had access to a law library in the chaotic conditions that existed after the hurricane, he did have access to writing materials and was able to write to the court. Nothing that the warden did or failed to do prejudiced the plaintiff in pursuing any meritorious legal claim. Terry v. Hubert, #09-30559 2010 U.S. App. Lexis 12612 (5th Cir.).

Attorneys' Fees

     A newspaper that reports on prison legal issues claimed that California prison officials violated its First Amendment rights by refusing to deliver its publications to some prisoners, and by refusing to deliver certain hardcover books that the publisher wished to send to prisoners. The parties reached a settlement agreement which included delivery of the publications to prisoners, and the payment of $65,100 in damages. Ultimately $458,000 in attorneys' fees and costs were also paid by the state. A federal appeals court has now upheld a trial court award of an additional $137,502.46 in attorneys' fees and costs for work done monitoring the state's compliance with the settlement agreement, including corresponding with inmates. Prison Legal News v. Schwarzenegger, #09-15006, 2010 U.S. App. Lexis 11690 (9th Cir.).

     A California state prisoner claimed that prison grooming regulations violated his right to religious freedom. While the trial court initially issued a preliminary injunction against the enforcement of the regulations, ultimately it dismissed the prisoner's claims for lack of jurisdiction. It then nevertheless awarded the plaintiff prisoner attorneys' fees. A federal appeals court ruled that the attorneys' fee award was erroneous when the trial court never found an actual violation of the prisoner's rights. Kimbrough v. State of Cal.; #08-17231, 2010 U.S. App. Lexis 13039 (9th Cir.).

Diet

     A prisoner who is a Seventh-Day Adventist clamed that he was denied a vegan diet required by his religion. The prisoner was properly denied a preliminary injunction when he conceded that, although allegedly denied the vegan diet at one facility, he was provided with the requested diet after being transferred to another Oklahoma facility, undercutting any claim of a system-wide denial of vegan diets. Little v. Jones, #08-7095, 2010 U.S. App. Lexis 11609 (10th Cir.).

Disability Discrimination: Prisoners

     A Pennsylvania prisoner filed two lawsuits against a prison medical director. When a deposition was scheduled in the case, due to disabilities that the prisoner suffered (diabetes and phlebitis), he requested that another prisoner be present to assist him in taking notes. The attorney for the medical director, however, refused to be in a room with two inmates present, and therefore ended the deposition early. The court rejected a claim that the Department of Corrections had violated the plaintiff inmate's rights under the Americans with Disabilities Act (ADA), since it had been willing to supply him with the requested inmate assistant, and it was only the attorney's objections that ended the deposition. The inmate could not assert ADA claims against the attorney or medical director, as the ADA does not apply to individuals. Watson v. Pa. Dept. of Corrections, #1475 C.D. 2009, 2010 Pa. Commw. Lexis 113.

Employment Issues

     A correctional officer was prosecuted for custodial sexual misconduct while working in the county jail's women's division, and terminated. He was acquitted of the criminal charges in state court. He sued, asserting claims for race and gender discrimination. The appeals court found no evidence of race or gender discrimination. The court noted that there was a lower standard of proof as to the termination than was required for the criminal proceeding. Egonmwan v. Cook County Sheriff's Dep't, #09-2764, 602 F.3d 845 (7th Cir. 2010).

     A former Cook County corrections officer who was prosecuted for custodial sexual misconduct while working in the women's section of a jail was later acquitted of the charges. Rejecting constructive discharge, race and gender discrimination, and malicious prosecution claims, a federal court found no evidence of race or gender discrimination, and noted that, as to the malicious prosecution claim, Illinois law regards a grand jury indictment as prima facie evidence of probable cause for a prosecution. Swearnigen-El v. Cook County Sheriff's Dep't, #09-2709, 602 F.3d 852 (7th Cir. 2010).

Exercise

     A prisoner argued that his Eighth Amendment rights were violated when he was denied outdoor exercise for 13 months and 25 days while in a maximum-security housing unit. A federal appeals court reversed summary judgment for the defendant officials, finding that the serious risk to the prisoner's health from the alleged deprivation would have been "obvious" to the officials, and there were genuine issues of material fact as to whether the defendants' actions were reasonable in light of the plaintiff's "limited" disciplinary record, and the security conditions in the facility for the last eleven months that the prisoner was deprived of outdoor exercise. Thomas v. Ponder, #09-15522, 2010 U.S. App. Lexis 14592 (9th Cir.).

Federal Tort Claims Act

     Federal prisoners in Beaumont, Texas filed a lawsuit under the Federal Tort Claims Act challenging the decision made by a federal prison official not to evacuate the prison in the aftermath of Hurricane Katrina. The lawsuit was properly dismissed, as the prisoners did not argue or show that the Eighth Amendment precluded the application of the discretionary function exception to liability under the Act as applied to this decision. Additionally, the plaintiffs' argument that the Safe Drinking Water Act imposed non-discretionary duties that were violated by the decision not to evacuate was meritless. The decision not to evacuate is exactly the type of policy decision protected by the discretionary function exception. Spotts v. U.S., #09-41039, 2010 U.S. App. Lexis 16480 (5th Cir.).

Mail

     A California prisoner claimed that prison employees improperly handled his legal mail. But the appeals court found that he failed to create a genuine issue of fact as to whether the correspondence at issue really was legal mail, i.e., "specially marked as originating from an attorney, with his name and address being given," which is required to receive special handling. Chatman v. Early, #09-15683, 2010 U.S. App. Lexis 15174 (Unpub. 9th Cir.).

Medical Care

     A prisoner's right to adequate medical treatment was not violated by the denial of the specific low-dosage maintenance treatment for his hepatitis C condition that he requested. This treatment was "unproven in long term studies," and the prisoner's treating and consulting doctors agreed that the treatment had no known benefits. The prisoner did receive other, medically accepted treatments. Wooley v. New York State Department of Correctional Services, #129, 2010 N.Y. Lexis 1347.

     A prisoner suffering from chronic myelogenous leukemia failed to show that his medical treatment was inadequate, since he received extensive care, and a mere disagreement about the form of his medication did not show deliberate indifference. Also, the inmate was moved to a new cell after he complained of second hand smoke. Glazewski v. Corzine, #10-1371, 2010 U.S. App. Lexis 13510 (Unpub. 3rd Cir.).

     A federal prisoner filed a Texas state law medical malpractice claim against a radiologist who interpreted the MRI of his injured right biceps muscle and the hospital where the MRI was done. The radiologist first reported that the MRI showed no demonstrable injuries, but two months later, reexamined the test results, and found a partial and almost total rupture of the biceps muscle. The trial magistrate found that the prisoner was not entitled to a court appointed expert to help prove his claim. A federal appeals court found that the prisoner failed to preserve for appeal his objection to the denial of his motion for an appointed expert, and that summary judgment was appropriate on his medical malpractice claims, which could not be established without expert testimony. Patel v. Baluyot, #09-40272, 2010 U.S. App. Lexis 13442 (Unpub. 5th Cir.).

Medical Care: Dental

     In a prisoner's lawsuit claiming, in connection with the extraction of his molar, that the dentist who pulled the tooth, the prison dental director, the prison physician, and the warden were all negligent and deliberately indifferent, a federal appeals court overturned the dismissal of the complaint, as it alleged very specifically a number of "troubling delays" in the plaintiff's treatment. McGowan v. Hulick, #09-2991, 2010 U.S. App. Lexis 14820 (7th Cir.).

Prison and Jail Conditions: General

****Editor's Case Alert****  

     A federal investigation into conditions at Cook County Jail in Chicago, Illinois allegedly found widespread unconstitutional conditions resulting in unnecessary inmate deaths and amputations, inadequate medical care, and routine prisoner beatings. The federal government settled a lawsuit with the county in an effort to remedy these problems. The agreement calls for the hiring of 600 additional jail guards, the hiring of four new outside jail monitors, and improvements in jail medical and mental health facilities. It also provides for stepped-up inspections for contraband and more video surveillance of inmate housing. U.S.A. v. Cook County, Illinois, #10-C-2946 (U.S. Dist Ct., N.D. Ill., May 13, 2010). Click here to read the Complaint in the case. Click here to read the press release announcing the settlement agreement.

Prisoner Assault: By Officers

****Editor's Case Alert****  

     The issue before the appeals court was whether the Fourth Amendment or Fourteenth Amendment applied to claims of excessive force against four corrections officers asserted by a pretrial detainee in the process of being booked, but no longer in the custody of the arresting officer who arrested him without a warrant. He claimed that he was improperly beaten and repeatedly tased while being held in the booking room prior to his photo being taken and before he had a probable cause hearing. The court ruled that the Fourth Amendment protects pre-trial detainees arrested without a warrant through the completion of their probable-cause hearings. The trial court, therefore, acted in error in applying a Fourteenth Amendment legal standard, and further proceedings were ordered as to claims against three of the officers. The error was harmless, however, as to claims against a fourth officer, as the trial court, applying the Fourteenth Amendment standard, found that he was not entitled to qualified immunity. Any violation of the Fourteenth Amendment excessive force standard, the court commented, would necessarily also violate the Fourth Amendment. Aldini v. Johnson, #09-3183, 2010 U.S. App. Lexis 13207 (6th Cir.).

     A correctional officer used no more force than necessary against an inmate who kicked his cell door, yelled profanity, refused orders to stop, and threw some object from his bed at the officer. The use of a short burst of pepper spray against the prisoner was not excessive under the circumstances. Easley v. Dept. of Rehabilitation and Correction, #2009-05277, 2010 Ohio Misc. Lexis 110 (Ct. of Claims).

Prisoner Death/Injury

     A prisoner suffered a head injury when a showerhead broke. He claimed that a maintenance worker, a nurse, and a number of supervisory personnel, violated his Eighth Amendment rights. The prisoner failed to show how the maintenance worker acted with deliberate indifference towards the risk that he might be injured by the showerhead. The nurse cleaned and dressed his wound, provided him with pain medication, and encouraged him to rest, which did not amount to deliberate indifference to his medical needs, Finally, the supervisory personnel were not shown to have been personally involved in anything that could result in their liability for the prisoner's injury. Sanaah v. Howell, #10-1000,2010 U.S. App. Lexis 13038 (Unpub. 10th Cir.).

Prisoner Discipline

     A Texas prisoner claimed that he obeyed an officer's orders to walk along the right side of a yellow line in an orderly manner, but that minutes later, he was approached in his cell and handcuffed by another officer for failing to follow the order. He was charged with a disciplinary offense of creating a disturbance, allegedly in retaliation for complaints his family had made about his treatment at the prison. The Texas Supreme Court agreed that the hearing officer properly declined to call, as a witness, the officer who handcuffed the prisoner, as he was not present at the time of the alleged misconduct. Also, there was no evidence that the disciplinary hearing resulted in any punishment that would be sufficient to deter the prisoner from the exercise of his First Amendment rights, so his retaliation claim failed. Institutional Division of Texas Dep't of Criminal Justice v. Powell. #08-0345, 2010 Tex. Lexis 480.

Prisoner Restraint

     A prisoner filed suit, claiming that a correctional officer attacked him in his cell, and that he was then denied adequate medical treatment. A jury returned a verdict for the defendants, and the prisoner appealed, arguing that he had been denied a fair trial on his claims because he had been required to appear in court in shackles (both handcuffs and leg irons). A federal appeals court stated that requiring a party in a civil trial to appear n shackles can, indeed, constitute a denial of due process if the restraints are not necessary. In this case, however, any error in ordering that the prisoner remain shackled throughout the trial was harmless, in light of indications from the Department of Corrections that the prisoner was considered "very high risk," and was a "very assaultive inmate." Sides v. Cherry, #08-1982, 2010 U.S. App. Lexis 12771 (3rd Cir.).

Private Prisons and Entities

     A prisoner sued a private care center, its director, and its medical personnel for deliberate indifference and negligence. The federal district court adopted a magistrate's recommendation that the complaint be dismissed with prejudice, as prior Fourth Circuit precedent declined to extend Bivens civil rights causes of action to private persons and entities whose only relationship to the federal government was by contract, particularly when adequate state law remedies exist for the alleged harm suffered. Despite the prisoner's argument that his claim was more a matter of violation of civil rights than of state law medical malpractice, a medical malpractice claim was an adequate state law remedy. Eddington v. Wyatt; #8:09-cv-02669, 2010 U.S. Dist. Lexis 1950 (D.S.C.).

Retaliation

     A prisoner claimed that a correctional officer had him removed from a job in the prison laundry in retaliation for a letter he wrote to the governor complaining about the officer. The retaliation claim was rejected, as there was no evidence refuting the officer's explanation that the prisoner was removed from the job at his own request because he felt "unsafe" there. Strope v. McKune, #09-3283, 2010 U.S. App. Lexis 11956 (Unpub. 10th Cir.).

     While working as a computer lab tutor at a prison, an inmate reminded his supervisor that an outside contractor had recommended removing certain network restrictions. The prisoner contended that the authorization of the new network amounted to a misappropriation of government funds. Hours after the discussion, the supervisor told the inmate that he might not be able to keep his job. The prisoner was, in fact, terminated, but was reassigned to work as an education aide weeks later. His new job had the exact same pay grade as his former job. Upholding the rejection of the prisoner's First Amendment retaliation claim, the court found that even if the termination had been in retaliation for the exercise of a constitutional right, the prisoner had not suffered a constitutional violation, as his pay rate remained the same. Shelton v. Fox, #09-40264, 2010 U.S. App. Lexis 11016 (Unpub. 5th Cir.).

Segregation: Administrative

     Following a prisoner's third "dirty" urine test, he was allegedly placed in administrative segregation for nine months. Rejecting the prisoner's due process and Eighth Amendment claims, a federal appeals court ruled that, without more, a placement in administrative segregation, even without cause, was not an "atypical and significant hardship." Orr v. Larkins, #08-3857, 2010 U.S. App. Lexis 13790 (8th Cir.).

Sex Offenders

     A Colorado state prisoner claimed that prison officials violated his federal civil rights by classifying him as a sex offender and by failing to provide him with a safe environment in which to participate in sex offender treatment. Rejecting these claims, a federal appeals court found that there is no federal due process right to appeal a sex offender classification in a prison administrative hearing. While the prisoner did show that he was exposed to a serious risk of harm in attending sex offender treatment, he failed to show that correctional employees actually knew of this risk or refused to provide the treatment in a safe environment. Murphy v. Colorado Dept. of Corrections, #09-1443, 2010 U.S. App. Lexis 11418 (Unpub. 10th Cir.).

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     Inmate Behavior Management: "Programs and Activities: Tools for Managing Inmate Behavior" (ACCN 024368) offers practical information and guidance on planning and implementing programs and activities for jail inmates. It includes examples of activity-focused, reformative, and reintegrative programs with varying levels of complexity and resources, including those that are free and easy to implement. (NIC)

     Prison Rape: "PREA Data Collection Activities, 2010" (NCJ 230448, 4 pp.) provides a comprehensive statistical review and analysis of the incidence and effects of prison rape, as mandated by the Prison Rape Elimination Act of 2003 (PREA) (P.L. 108-79). (BJS)

     Telephone Access and Usage: "Cell Phones as Prison Contraband," by Todd W. Burke, Ph.D., and Stephen S. Owen, Ph.D., 79 FBI Law Enforcement Bulletin No. 7 (July 2010).  "Cell phone use by inmates can pose significant dangers."

Reference:

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

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