Click here for further information about all AELE Seminars.

---

 Search the Case Law Digest

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Lexis or Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.

Access to Courts/Legal Info

     A federal appeals court ordered further proceedings on a prisoner's claim that correctional officials denied him his constitutional right of access to the courts by preventing him from using the law library during a limited time he had to appeal his criminal conviction, as well as by failing to provide him with any other means of legal research assistance. He further claimed that they then forced him to choose between his constitutional right to exercise and his constitutional right to access to the courts by only allowing him to leave his cell two hours a day, four days a week, for an eight month period, in violation of the Eighth Amendment. During those hours, he could either exercise or use the law library. The court found that these allegations, if true, could indeed have violated the prisoner's rights. Hebbe v. Pliler, #07-17265, 2010 U.S. App. Lexis 15660 (9th Cir.).

Chemical Agents

     Ten mentally ill or "otherwise vulnerable" inmates claimed that the use of chemical agents against them constituted cruel and unusual punishment. The prisoners settled their claims against the individual officers, and the court later entered judgment in favor of two of the remaining plaintiffs on claims that repeated sprayings of such inmates under a use of force policy violated the Eighth Amendment. Upholding an award for these plaintiffs, a federal appeals court ruled that the defendants had waived any challenge they might have had to the application of a "deliberate indifference" rather than stricter legal standard, that a deceased inmate could still be a prevailing plaintiff entitled to an award of attorneys' fees despite his death rendering moot any injunctive relief about him being further sprayed, and that the trial court did not clearly err in finding that a plaintiff had suffered psychological injury from being subjected to the spray. An injunction was upheld against the "non-spontaneous" use of chemical agents on the one remaining plaintiff without consultation with the correctional department's trained mental health staff. Thomas v. Bryant, #09-11658, 2010 U.S. App. Lexis 17419 (11th Cir.).

Diet

     A former detainee at a county jail asserted a plausible claim that he lost 19 pounds during his eight months of incarceration there because he was not provided with sufficient food. The prisoner claimed that he complained about his meals at the jail over the entire time, and the appeals court ruled that this might indicate that an inadequate diet was part of a county policy or custom. The appeals court overturned the dismissal of damage claims against the county. Davis v. State of Missouri; #09-1711, 2010 U.S. App. Lexis 17111 (Unpub. 8th Cir.).

     A prisoner contended that a corrections officer at a prison "started a chain of events" that resulted in him having a stroke. He alleged that the officer denied him both breakfast and lunch on two days in a row, resulting in his blood pressure going very high. The officer also allegedly threatened the prisoner, warning him not to pursue a lawsuit, which could constitute a claim for unlawful retaliation. Since the prisoner claimed to suffer from diabetes, high blood pressure, and heart problems, he might be able to establish deliberate indifference to his serious medical needs by the withholding of his meals. The trial court erred by dismissing the lawsuit without giving the prisoner an opportunity to amend his complaint. Zanders v. Ferko, #10-1796, 2010 U.S. App. Lexis 16398 (Unpub. 3rd Cir.).

Disability Discrimination

****Editor's Case Alert****  

     California state officials with authority over the corrections system and parole proceedings were properly ordered to track and accommodate the needs of state prisoners and parolees housed in county jails who had disabilities in order to see that their disabilities were properly accommodated as required by federal disability discrimination statutes. The trial court satisfactorily made findings required under the Prison Litigation Reform Act concerning the need for relief for the problems claimed in a class action lawsuit brought on behalf of disabled prisoners. The appeals court rejected arguments by the state officials that they had no responsibilities for ensuring that state prisoners or parolees in county jails receive reasonable accommodation for their disabilities, pointing to regulations, 28 C.F.R. § 35.130(b)(1), that specify that an entity cannot avoid its obligations regarding the accommodation of disabilities by operating "through contractual, licensing, or other arrangements” with third parties. Armstrong v. Schwarzenegger, #09-17144, 2010 U.S. App. Lexis 18687 (9th Cir.).

Employment Issues

     The EEOC filed suit on behalf of a class of female Muslim employees against a private company that entered into a contract with a county to run a prison. The lawsuit claimed that it was unlawful religious discrimination not to allow these employees an exception to an employee dress policy that barred them from wearing "khimars" (Muslim religious headgear) at work. Rejecting this claim, the appeals court ruled that even if the employees had a sincere religious belief requiring them to wear the khimars, this belief was outweighed by the need for safety in the prison, "undoubtedly an interest of the greatest importance." The policy of no hats was adopted to help prevent the introduction of contraband into the facility, and to prevent misidentification of persons wearing headgear. Equal Employment Opportunity Comm'n v. Geo Group, Inc. #09-3093, 2010 U.S. App. Lexis 15973 (3rd Cir.).

First Amendment

     A Wisconsin inmate claimed that his First Amendment rights were violated by a prison policy denying prisoners access to commercially produced photos, and limiting to 50 the number of photos inmates may possess, as well as by prison officials' actions in not delivering to him a number of photos that he claimed were not within the definition of prohibited pornography, although they were "risque." A Wisconsin appeals court found that defendant officials were entitled to qualified immunity, as the prisoner had no clearly established constitutional right to receive commercially sold photos, or to possess in excess of 50 photos. The prison had a legitimate interest in conserving staff resources that would be needed to screen such photos, and there were alternate ways of prisoners seeing such things as celebrity photos, such as in magazine subscriptions. Examining the particular photos withheld, the court also concluded that the majority were properly withheld under rules prohibiting material that is pornographic or features nudity. Four photos, however, were improperly withheld under the pornography ban, prior to the ban on commercial photos being adopted, as they were found to be mere "swimsuit" pictures in which the swimsuits fully covered each model's pubic area, and areola. But because the swimsuits were "skimpy," and composed of thin fabric, and the models were provocatively posed, they came "so close" to pornography and nudity that a prison official might reasonably come "to a different conclusion" when reviewing them, so the individual defendants were also entitled to qualified immunity on this claim. Lacy v. Huibregtse, #2008AP1870, 2010 Wisc. App. Lexis 568 (Unpub. 4th Dist.).

Inmate Property

     A Texas inmate claimed that prison employees intentionally destroyed his property, and that he therefore should be allowed to pursue a federal civil rights claim against them. The appeals court noted, however, that the inmate failed to show that these alleged actions were anything other than, at most, a random and unauthorized deprivation, or that a state law action for "conversion" of his personal property would be an inadequate post-deprivation remedy. Because of this, the prisoner could not pursue a federal civil rights lawsuit over the lost property, even if he could show that it had been intentionally destroyed, as he claimed. Jackson v. Maes, #09-11238, 2010 U.S. App. Lexis 17638 (Unpub. 5th Cir.).

Medical Care

     While a prisoner claimed that a prison doctor had determined that he suffered nerve damage to his wrists because of officers' delay in getting him medical attention following an incident in which overly tight restraints were placed on him, he could not establish his claim simply by his own unsupported affidavit, and without any medical records or other evidence showing this. The prisoner's appeal of summary judgment for the defendants was frivolous. Wallin v. Dycus, #09-1407, 2010 U.S. App. Lexis 11263 (Unpub. 10th Cir.).

     A jury rejected a prisoner's claim that a jail sergeant and a doctor were deliberately indifferent and ignored his need for Crohn's disease treatment and replacement eyeglasses. Upholding this result, the appeals court rejected arguments that the trial court erred in failing to provide him with an appointed lawyer for his lawsuit, since the prisoner was literate and capable of asserting his own claims. The trial judge also did not err in allowing the defense to use evidence of the plaintiff's criminal convictions for the limited purpose of challenging the truthfulness of his testimony. Romanelli v. Suliene, #08-1762, 2010 U.S. App. Lexis 17016 (7th Cir.).

     A prisoner failed to present sufficient evidence to create a genuine issue of fact as to whether the defendants were deliberately indifferent to his serious medical needs based on the treatment and medications provided for his headaches. A mere difference of opinion as to the appropriate course of treatment for a medical problem cannot constitute deliberate indifference. The trial court, however, did improperly dismiss claims against one defendant who allegedly got him taken off of Valium by lying to the prisoner's medical provider about him being a benzodiazepines seeker in retaliation for the plaintiff exercising his First Amendment rights. Angelone v. Furst, #09-35437, 2010 U.S. App. Lexis 15168 (Unpub. 9th Cir.).

     A prisoner's neck was broken after he fell from his bunk, and he stated that he was in extreme pain and had no feeling in his shoulder below his neck. A doctor, however, told him that she could find nothing wrong with his neck and discharged him. Other doctors diagnosed the broken neck six days later. The prisoner claimed that the first doctor refused to give him pain medication and that the doctor and a nurse also ignored a guard's calls made after he started to choke on his own vomit. He also claimed that the doctor said that she would find out what was causing him to vomit if he wasn't an inmate. A federal appeals court found that these allegations, if true, sufficiently stated a claim for deliberate indifference. Claims against an x-ray technician who allegedly misread the prisoner's x-ray constituted, at most negligence and medical malpractice, and were insufficient for a federal civil rights claim. Loosier v. Unknown Doctor, #09-40743, 2010 U.S. App. Lexis 11040 (Unpub. 5th Cir.).

Medical Care: Mental Health

     A Massachusetts man civilly committed as a sexually dangerous person, claimed that doubling bunking him in a cell with another detainee violated his due process rights and exposed him to harm. But he did not allege any specifics as to how double bunking caused him any ham. He failed to show how either his treatment needs or his safety required a single cell. He also did not show any unusual circumstances, such as being forced to be housed with a suicidal person. Rector v. Dept. of Correction, #10-1079, 2010 U.S. App. Lexis 14924 (Unpub. 1st Cir.).

     A prisoner sued a prison psychiatrist who treated him for various psychological disorders, asserting that the doctor prescribed anti-psychotic medications in order to cause him to commit suicide. The evidence, however, indicated that the inmate, who stated that he had lost trust in the doctor, exhibited paranoid thoughts, stopped taking his medication, and threatened suicide, and that the doctor had him placed under observation. There was no evidence of deliberate indifference to the prisoner's medical needs, much less an intent to harm him. There was also no evidence of the inmate's contention that the anti-psychotic medication prescribed interacted with other medication he was taking to cause suicidal tendencies. Thomas v. Beard, #10-1375, 2010 U.S. App. Lexis 16390 (Unpub. 3rd Cir.).

Prison Litigation Reform Act: Similar State Statutes

     Wisconsin, like a number of other states, has a state law that is similar to the federal Prison Litigation Reform Act, with one of its provisions aimed at deterring inmates who repetitively file meritless and frivolous lawsuits, a "three strikes" provision, denying such frivolous litigants the right to proceed as a pauper in the court, avoiding the payment of court costs and prepayment of filing fees. In a recent case, a Wisconsin appeals court ruled that the fact that a prisoner had had portions of four prior lawsuits dismissed, i.e., particular claims stricken, did not count as "strikes" for purposes of the "three strikes" rule, since in each instance the prisoner had not had his entire action dismissed. State of Wis. Ex Rel. Henderson v. Raemisch, #2009AP1850, 2010 Wisc. App. Lexis 567 (4th Dist.).

Prisoner Assault: By Officers

      In a prisoner's lawsuit claiming that a correctional officer used excessive force against him, the defendant officer could not be awarded qualified immunity when his motion was based on assumptions of disputed fact contrary to those alleged by the prisoner. The prisoner claimed that the officer, during a dispute, ordered him to roll over onto his stomach while he was laying on the ground, but that before he could comply, the officer tased him in his genital area, causing him to pass out and wake up in a wheelchair, and causing incontinence, impotence, nerve damage, and a need for extensive psychological treatment. He claimed he was posing no threat to the officer at the time. The officer contended that the inmate was agitated and that his "angry behavior continued unabated" so that it was safer to use the Taser than have to wrestle with him on the hard concrete ground of the cell. Mahamed v. Anderson, #09-2030, 2010 U.S. App. Lexis 15767 (Unpub. 8th Cir.).

Prisoner Discipline

     A New Jersey prisoner was found guilty of disciplinary infractions of tattooing or self-mutilation, and of refusing to accept a housing assignment. He was about to be transferred from a "special needs" unit into the general population of the prison, which he did not want, as there had been publicity about him inheriting money because of the death of a relative. Fearing he would be subject to extortion in the general population, he straightened a paper clip and used it to cut his arms until they bled. While the prisoner claimed that the evidence used against him at the hearing was not "substantial" as required under state correctional rules, he did not deny doing the charged acts, so the court found no basis to overturn the discipline. Reldan v. N.J. Dept. of Corrections, #A-6348-08T3, 2010 N.J. Super. Unpub. Lexis 1854.

     A federal prisoner was accused of involvement in a fight with another prisoner. He was provided with a copy of the incident report two days after it occurred, and informed that he was being charged with fighting. Four days later, a disciplinary committee referred the matter to a hearing officer who later held a hearing, and imposed sanctions on the prisoner of the loss of 27 days of good-conduct time, 100 days' confinement in a special housing unit, and a transfer to another facility. The prisoner argued that his due process rights were violated because he did not receive written notice of the proceedings against him within 24 hours of the incident. Rejecting this claim, the appeals court noted that Wolff v. McDonnell, #73-679, 418 U.S. 539 (1975) does not require notice of the disciplinary proceedings within 24 hours of the incident, but rather no less than 24 hours before a hearing on those charges. "It sets no time limit for providing notice of charges after an incident." Dedrick v. Daniels, #10-1183, 2010 U.S. App. Lexis 15726 (Unpub. 10th Cir.).

Race Discrimination

     A California inmate sued prison officials who allegedly assigned him a cellmate based on race. At the time this occurred, however, the court ruled, it was not yet clearly established that a policy of considering race in making such cell assignments was a violation of equal protection. Instead, it was regarded as "undoubtedly a legitimate penological interest" related to prison security, a concept later overruled by the U.S. Supreme Court in Johnson v. California, #03-636, 543 U.S. 499 (2005) (holding strict scrutiny should be applied to such racial classifications). Prison officials were therefore entitled to qualified immunity from liability. The court rejected the argument that various international treaties prohibiting racial segregation were enough so that prison officials should have known their policy was unlawful, noting that such treaties did not provide for an individual cause of action for violations. The prisoner was also not entitled to injunctive relief, as the prison has stopped using race as a factor in housing prisoners, and the plaintiff has been transferred to a dormitory facility. Mayweathers v. Woodford, #08-56835, 2010 U.S. App. Lexis 17464 (Unpub. 9th Cir.).

Religion

     A federal appeals court held that there was a genuine issue of fact as to whether Nevada prison officials had shown, as required under the Religious Land Use and Institutionalized Person's Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA") that there was a "compelling" interest in restricting the access of a prisoner who practices the Wiccan religion to a sweat lodge, and that doing so was the least restrictive means of furthering that interest. Under that statute, the court commented, prison officials' generalized reference to the need for order and security is not enough, standing alone, to overcome prisoners' right to particular religious practices. The court overturned summary judgment for the defendants and ordered further proceedings. Chernetsky v. Nevada, #08-16100, 2010 U.S. App. Lexis 15856 (Unpub. 9th Cir.).

     A California prisoner received several disciplinary citations for wearing a beard that he asserted he had to have for religious reasons. The regulations that prohibited the beard were amended so that his beard was no longer prohibited, but the disciplinary citations remained in his prison file, and he wanted them expunged, based on the Religious Land Use and Institutionalized Person's Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"). A federal appeals court ruled that the trial court improperly dismissed this claim. The state did not argue that the prisoner's rights under the statute had not been violated when the discipline occurred, and the fact that the citations remained in his file, and that harmful references to them could potentially be made, meant that his claim was not moot because the policy in question had been modified. His claims for expungement and injunctive relief would be considered upon remand. Quillar v. Calif. Dept. of Corrections, #08-15414, 2010 U.S. App. Lexis 17462 (Unpub. 9th Cir.).

Retaliation

     The majority of a three-judge federal appeals panel rejected a prisoner's claim that a correctional employee had him transferred to a higher-level security facility in unlawful retaliation for having filed prison grievances, They agreed that filing such grievances constituted constitutionally protected activity, but found that the prisoner's assertions that the employee had "confronted" him about one such grievance was insufficient to show a cause and effect relationship between the filing of the grievance and the subsequent transfer, particularly as the prisoner failed to show that the employee was involved in any way in the decision to transfer him. A third member of the panel dissented, arguing that the prisoner's assertion that the employee told him that he would be returning to a higher security level, if true, could be used to infer that the employee had some involvement in the transfer decision. The close proximity in time between the confrontation with the employee and the transfer also might point to an act of retaliation, the dissenter contended. Cantley v. Armstrong, #09-1092, 2010 U.S. App. Lexis 17766 (Unpub. 6th Cir.).

Strip Searches: Prisoners

     A $1.1 million settlement agreement has been reached in a class action lawsuit brought on behalf of almost 500 detainees who allegedly were subjected to unlawful strip searches in a Massachusetts county jail. The strip searches were allegedly conducted without any basis to believe that the detainees were in possession of drugs, contraband, or weapons. Each class member will receive up to $3,500. The lawsuit was initially filed by a man strip searched after he was arrested for failing to appear in court on a traffic violation. He was strip searched again the following morning before going to court, where his case was dismissed. Garvey v. MacDonald, #07-30049, U.S. Dist. Ct. (D. Mass. July 15, 2010). Various case documents are available in a website about the lawsuit.

Telephone Access and Use

     A new federal law, signed by President Obama on August 10, 2010 prohibits the possession and use of cell phones and other wireless devices by prisoners in federal facilities. The law was passed after statistics indicated that the federal Bureau of Prisons confiscated almost 600 such devices from prisoners in secure federal facilities, and over 2,600 from prisoners in minimum security facilities, with some inmates using such phones to direct outside criminal activities. Anyone convicted of attempting to smuggle a cell phone or other wireless device into a federal prison can now face up to a year of incarceration. The statute mandates that a government study on the effectiveness of the law shall be issued in a year.

     Editor's Note: See Legal Issues Pertaining to Inmate Telephone Use, 2008 (2) AELE Mo. L.J. 301.

Visitation

     A California state prisoner argued that his rights were violated by a prison's family visitation policy, which bars overnight family visits to prisoners serving life sentences without parole dates. This policy, the court ruled, is legal, citing Overton v. Bazzetta, #02-94, 539 U.S. 126 (2003), which held that limitations on prison visitation rationally related to legitimate penological interests are constitutional regardless of whether prisoners and their family have "a constitutional right of association that has survived incarceration." Additionally, even if it were true, as the plaintiff alleged, that the prison allows such overnight family visits to "informants," it was not irrational for a prison to give special privileges to prisoners who offer information about threats to the security and safety of the facility or other inmates. The plaintiff, therefore, had no valid equal protection claim. Tuvalu v. Woodford, #08-16807, 2010 U.S. App. Lexis 16063 (Unpub. 9th Cir.).

     Editor's Note: For more on this topic, see: Legal Issues Pertaining to Visitation -- Part One, 2008 (5) AELE Mo. L.J. 301 and Legal Issues Pertaining to Visitation -- Part Two, 2008 (6) AELE Mo. L.J. 301.

    •Return to the Contents menu.

     Community Corrections: "Responding to Elder Abuse: What Community Corrections Should Know" (NCJ 223414) is part of a DVD series that provides community corrections professionals with basic information about what considerations to take into account when placing offenders in residential situations.

     Furlough Programs: Audit of the Federal Bureau of Prisons' Furlough Program, U.S. Department of Justice, Office of the Inspector General, Audit Report 10-44, September 2010

     Jail Planning: "New Jail Planning: Getting It Right" (ACCN 024347) highlights the four major steps of the Facility Developmental Process model: determine the need and feasibility; deciding to build, plan operations; design the jail; and build the jail, plan the transition. (NIC)

     Sexual Assault: "Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09" (NCJ 231169, 91 pp.) presents data from the National Inmate Survey, 2008-09, conducted in 167 state and federal prisons, 286 local jails, and 10 special correctional facilities between October 2008 and December 2009, with a sample of 81,566 inmates ages 18 or older. (BJS)

     Sex Offenders: "Supervising Low-Level Sex Offenders in the Community: An Integrated Model" (ACCN 024623) is a curriculum that uses an interactive format to help staff working with sex offenders increase their knowledge of supervising low-level sex offenders, determining sex offender risk and seriousness, identifying principles and barriers to collaboration, and discerning the difference between risk assessments and classification instruments. (NIC).

Reference:

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

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