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Access to Courts/Legal Info

     A N.J. prisoner challenged a ruling by state correctional officials allowing inmates to use carbon paper in the law library, and barring them from using such paper elsewhere in the prison. An intermediate appeals court upheld this restriction. The defendants argued that carbon paper posed a security threat and that weapons wrapped in carbon paper could potentially pass through metal detectors undetected. While a state regulation provides that "legal supplies such as paper, carbon paper, envelopes and pens shall be provided in reasonable amounts as needed to all inmates who request them for legal purposes," the court found that the defendants, in allowing the use of carbon paper in the law library, but barring its use elsewhere, had properly balanced the needs of the prisoners with security concerns, and had not acted in an arbitrary, capricious, or unreasonable manner. Boone v. N.J. Dept. of Corrections, #A-3540-08T2, 2010 N.J. Super. Unpub. Lexis 2112.

Attorneys' Fees

     After a Muslim prisoner was granted relief in his lawsuit seeking to have prison officials provide him with kosher meals, the trial court awarded him $73,360.20 in attorneys' fees and 271.20 in costs. A federal appeals court ruled that 42 U.S.C. Sec. 1988, regarding the award of attorneys' fees, did not preempt a Nebraska state statute requiring, for payment of such awards, submission to a state claims procedure, followed by submission to the state legislature for possible appropriation. The appeals court also found that the fee award failed to deduct time spent on unsuccessful claims in the lawsuit and that the plaintiff's attorney spent an "unreasonable" amount of time on the claims on which he did achieve success. As the requested attorneys' fee award was disproportionate to the relief obtained, further proceedings were required. El-Tabech v. Clarke, #09-1554, 2010 U.S. App. Lexis 16972 (8th Cir.).

Chemical Weapons

     An arrestee seated in the booking room of a jail was subjected to a short burst of pepper spray, and subsequently placed in the back of a patrol car for approximately an hour. He claimed that he was never allowed to decontaminate, and that his repeated complaints of breathing problems and repeated requests for medical attention after he was removed from the car were ignored. In an excessive force lawsuit, he claimed that he developed Reactive Airway Dysfunction Syndrome (RADS) from the lengthy pepper spray exposure. A federal appeals court held that the plaintiff had adequately established that an officer was aware of his serious need for medical attention, but ignored it, which stated a claim for violation of his Fourteenth Amendment rights. Nasseri v. City of Athens, #09-11473, 2010 U.S. App. Lexis 7297 (Unpub. 11th Cir.).

Employment Issues

     Employees of the Federal Bureau of Prisons (BOP) at a medical facility sued the government under the Privacy Act and Federal Tort Claims Act claiming that an employee roster with confidential personal information was improperly disclosed to inmates and fellow employees. Information in the roster included employees' names, addresses, Social Security numbers, home telephone numbers, pay grades, and other personal information. A federal appeals court ruled that the trial court did not erroneously conclude that the "inadvertent" final act of disclosing the roster was "willful" for purposes of the Privacy Act claim, given the "entire course of conduct." The trial court also did not commit an error in making a non-rebuttable inference of disclosure of the roster as a sanction for the government's destruction of relevant evidence needed in the case. The appeals court upheld the finding that a Privacy Act violation occurred and the dismissal of Federal Tort Claims Act claims. It also ruled that the trial court erred, in part, in limiting some plaintiffs to recovering only $1,000 in statutory damages, as they might also be able to recover greater actual damages for "lost time" spent "dealing with the disclosure." It rejected, however, the assertion that the employees could recover damages for "future protective measures." Beaven v. U.S. Dep't of Justice, #08-5297, 2010 U.S. App. Lexis 19927 (6th Cir.).

Inmate Funds

     An Arizona prisoner objected to the withdrawal of $50 from his prison wages under a state statute requiring that amount to be put in a special account to be paid to him upon his release. The appeals court ruled that this action did not violate the prisoner's due process rights as he had no current possessory property interest in the withheld money, and the action did not permanently deprive him of his wages. Ward v. Ryan, #07-17156, 2010 U.S. App. Lexis 19936 (9th Cir.).

Mail

     A Wisconsin prisoner claimed that prison guards violated his rights in opening legal mail to him outside his presence. While many cases hold that this is a violation as applied to correspondence from a prisoner's attorney, the mail in this case involved communications from courts and agencies. The prisoner asserted that the opening of such correspondence outside his presence violated a Wisconsin state statute. A federal appeals court upheld the dismissal of the lawsuit for failure to state a claim, since the violation of a state statute, standing alone, is inadequate grounds for a federal civil rights lawsuit. Guajardo-Palma v. Martinson, #10-1726, 2010 U.S. App. Lexis 19481 (7th Cir.).

Medical Care

     Two elderly Arkansas prisoners claimed that correctional employees and employees of a company providing medical services to inmates were deliberately indifferent to their serious medical needs. The first prisoner, in his early eighties, asserted that he had complained for years of stomach and back pain, but did not receive adequate treatment. The second prisoner, who is 66 and suffers from poorly controlled insulin-dependent diabetes, claimed that a lapse in treatment following surgery for a broken ankle caused or exacerbated the effects of a condition known as "Charcot foot," which may make it difficult to walk. The appeals court held that these were assertions of serious medical conditions, and that if an administrator knew that these needs were not being adequately addressed, but was deliberately indifferent, he could be held personally liable. He could not avoid such liability by merely passing along complaints to a grievance procedure, as alleged, and he was not entitled to qualified immunity. The court also denied qualified immunity on claims that officials oversaw or designed an inadequate grievance system that resulted in denials of adequate medical treatment. Langford v. Norris, #09-1862, 614 F.3d 445 (8th Cir. 2010).

    The mere fact that a prisoner disagreed with prison doctors regarding whether he should be provided with the medication Ritalin to treat his Attention Deficit and Hyperactivity Disorder ("ADHD") condition, did not amount to deliberate indifference, and it was undisputed that doctors prescribed a different medication for treatment. Brady v. Fishback, #09-15609, 2010 U.S. App. Lexis 18034 (Unpub. 9th Cir.).

     The estate of a man who died of a gastrointestinal hemorrhage while in a county jail as a pretrial detainee claimed that the sheriff failed to adequately train and supervise medical staff at the jail and maintained a policy of deliberate indifference to serious medical needs. The sheriff was entitled to qualified immunity, as the plaintiff failed to present sufficient evidence of deliberate indifference or objective unreasonableness. "A 'pattern' of verbal nurse intimidation and harassment cannot alone place a supervisor on notice that inmates are receiving medical care so deficient as to violate the Constitution." Brown v. Callahan, #09-10843, 2010 U.S. App. Lexis 21442(5th Cir.).

Medical: Dental

     A prisoner failed to show that a prison dentist who took x-rays, extracted four teeth, and provided him with an upper denture acted with deliberate indifference to his dental needs. The evidence showed, at most, mere disagreement with the treatment provided. The prisoner also failed to show that the dentist discriminated against him on the basis of race. Champion v. Murphy, #09-55651, 2010 U.S. App. Lexis 18084 (Unpub. 9th Cir.).

Prisoner Assault: By Inmates

     A federal appeals court overturned the dismissal of a prisoner's lawsuit claiming that officers failed to protect him against assault by a fellow inmate. His complaint sufficiently alleged that one officer observed the fight, but failed to intervene, and that another officer knew of the grudge that his assailant had against him but still sent him into the housing unit to pick up supplies, resulting in the attack. Brown v. N. Carolina Dep't of Corr., #08-8501, 2010 U.S. App. Lexis 525 (4th Cir.). On remand, Brown v. Winkler, #5:08CV113, 2010 U.S. Dist. Lexis 9546 (W.D.N.C.), summary judgment was granted for the defendants. The officer that the prisoner claimed sent him into the housing unit presented evidence that she was not even at work at the time. The officer who allegedly witnessed the attack but failed to intervene presented evidence that he was in another building at the time.

     A prisoner claimed that correctional employees were deliberately indifferent to his safety when they double-celled him in the general population rather than placing him in protective custody when he had initiated the process of dropping out of a prison gang. Rejecting this claim, the court found that there was "uncontroverted evidence" that the prisoner actually did not begin the "official debriefing and dropout process" until well after the attack, that he himself had asked that he not be placed in protective custody, and that the defendants lacked any information that would have indicated that the plaintiff's cellmate posed a risk to his safety. Sherwood v. Tancrator, #08-56119, 2010 U.S. App. Lexis 18215 (Unpub. 9th Cir.).

Prisoner Death/Injury

     A 17-year-old detainee at a state-operated juvenile detention center suffered a spinal cord injury while trying to make a tackle during a "pick-up" football game there. His mother sued the agency running the facility, as well as several staff members. Claims against the center and its staff in their official capacities were barred by Eleventh Amendment immunity, as the center was an arm of the state. A summary judgment was also granted to individual defendants on Eighth Amendment claims, as the plaintiff failed to show a substantial risk of serious harm that "violates contemporary standards of decency." or deliberate indifference to the youth's safety. Betts v. New Castle Youth Dev. Ctr., #09-3753, 2010 U.S. App. Lexis 19052 (Unpub. 3rd Cir.).

Prisoner Discipline

     A prisoner was found guilty of lying to a prison staff member in a complaint letter she wrote. That determination was reversed on appeal as not being supported by substantial evidence. The offense charged was falsely asserting that a correctional officer had stopped the delivery of her commissary purchases, and she was found guilty based on evidence that the purchases were in fact delivered. An examination of the letter, however, revealed that the prisoner had not asserted that the officer had actually succeeded in stopping the deliveries, but instead had "instructed 1st shift officers working with him to stop my deliveries." The court concluded that "there is an undeniable disparity between what the disciplinary report charged and the evidence which formed the basis for the adjudication of guilt." Vazquez v. N.J. Dept. of Corrections, #A-4923-08T2, 2010 N.J. Super. Unpub. Lexis 2260.

Private Prisons and Entities

     A federal statute reduces the disability benefits of veterans who are convicted of a felony and "incarcerated in a Federal, State, or local penal institution." One such disabled veteran, convicted of a felony and incarcerated in a privately operated prison, following transfer from a state-operated prison, argued that the statute did not apply to those serving their sentence in private prisons, and that his monthly benefits were therefore improperly reduced from $808 to $85. A federal appeals court rejected this argument. It noted that a private prison's authority to confine the veteran derives from his state felony conviction and the authority to imprison citizens ultimately rests with the government only. Interpreting the statute to apply to private prisons under state contract would promote the statute's stated legislative purpose of avoiding the duplication of governmental expenditures for veterans who are already supported by the government and suffer no lost earnings as a result of their disability. The court further reasoned that creating a distinction between veterans in state-operated and state-contracted privately operated prisons would create "an unreasonable or irrational result because it would both thwart the intentions of Congress and allow felons who chance to be incarcerated in private facilities at government expense [to] continue to be entitled to the full amount of their VA benefits while felons incarcerated in State-owned-and-operated facilities would not." Wanless v. Shinseki, #2010-7007, 2010 U.S. App. Lexis 18899 (Fed. Cir.).

Religion

     A Louisiana prisoner claimed that his right to religious freedom had been violated by withholding from him a publication sent to him by the religious organization "Yahweh Ben Yahweh" Prison officials determined the publication to be detrimental to security and racist. Rejecting the prisoner's claim, the court found that regulations that bar publications that advocate racial, religious, or nation hatred, creating a serious risk of violence, are valid. The appeals court examined the material at issue, and agreed with prison authorities that it was racially inflammatory. Toliver v. Travis, #2010 CA 0279, 2010 La. App. Lexis 1239 (Unpub. 1st Cir.).

     A Muslim prisoner claimed that his rights were violated and that this prevented him from practicing his religion for two weeks. During a search of his cell for unauthorized linens, officers allegedly confiscated a towel he used as a prayer rug and a copy of the Koran, both of which he contended he had permission to possess for religious purposes. These items were returned to him two weeks later, after he filed a grievance. A federal appeals court upheld the dismissal of the lawsuit for failure to state a claim. The prisoner had only sued the county, but had failed to allege that his rights were violated by any official county policy or custom. The court also stated that neither the confiscation of the items nor the two-week delay in their return imposed s "substantial" burden on his religious freedom. McCroy v. Douglas County Corrections Center; #10-2080, 2010 U.S. App. Lexis 19419 (Unpub. 8th Cir.).

Sex Offenders

     A prisoner convicted of a murder in which there was sexual trauma to the victim claimed that forcing him to participate in a sex offender therapy program violated his due process rights, as he had never been convicted of a sex offense. Reversing summary judgment for the defendants on this claim, a federal appeals court found that, because a sex offender label was "severely stigmatizing," and participation in such therapy was not a condition imposed by his sentence, compelled treatment constituted a loss of liberty, so that he was entitled to minimum due process on the issue. Further proceedings were ordered on the due process claim, while self-incrimination and equal protection claims were rejected. Renchenski v. Piazza, #07-3530, 2010 U.S. App. Lexis 20428 (3rd Cir.).

Strip Search: Prisoners

****Editor's Case Alert****  

     An arrestee charged with civil contempt claimed that he was improperly subjected to strip and visual body cavity searches by officers at a jail prior to taking a supervised shower. The appeals court ruled that the procedures followed were reasonable and did not violate the Fourth Amendment because of the strong interest in preventing the smuggling of contraband into the jail at the time of intake. Subjecting all arrestees to such searches promoted "equal treatment." Florence v. Bd. of Chosen Freeholders of the County of Burlington, #09-3603, 2010 U.S. App. Lexis 19548 (3rd Cir.).

Tasers, Stun Belts/Guns, and other Electronic Control Devices

     A man arrested for battery on a peace officer, and subdued through the use of a Taser, was again subjected to a Taser at the county jail he refused to comply with a mandated strip search during the booking process. The officer warned the detainee that the Taser would be used if he continued to refuse to comply with orders. The prisoner, who appeared to be under the influence of either alcohol or some other substance yelled obscenities, clenched his fists, called the officers "faggots" and other names, and paced back and forth, continuing his refusal. The prisoner sued the officer, claiming excessive use of force. A federal appeals court upheld the use of the Taser as reasonable. The officer at the jail was aware that the detainee allegedly already attacked one officer that evening, necessitating the earlier use of a Taser against him, and he appeared intoxicated and to be acting in an aggressive and unpredictable manner, clearly posing an immediate threat to safety and order within the jail. The use of the Taser was "a reasonable, good faith effort to maintain or restore discipline within the jail," and "no reasonable jury would conclude" that the officer acted with a malicious or sadistic intent. Forrest v. Prine, #09-3471,2010 U.S. App. Lexis 18151 (7th Cir.).

Telephone Access and Use

     A New Jersey prisoner claimed that his due process rights were violated when he was punished by the loss of 207 days good conduct time for having a cell phone SIM (Subscriber Identity Module) card in his cell. The prisoner failed to present any evidence to support his assertion that he had been "set up" on the charge. The failure to disclose the contents of the SIM card to him was not a violation of his rights. He was charged with possession of the card as contraband, so its contents, such as the identity of the true owner, the phone number, and the calls made were not relevant to exonerating him of the charges. Donahue v. Grondolsky, #10-1147, 2010 U.S. App. Lexis 19097 (Unpub. 3rd Cir.).

Transsexual Prisoners

     A New Jersey prisoner challenged the decision of correctional officials refusing to diagnose him with gender identity disorder (GID) and provide "appropriate psychological treatment." He claimed to be a male to female transgender individual who although born biologically male is "psychologically and emotionally female." This refusal was based on evaluations by medical personnel finding that the prisoner did not show "two major criteria" of GID, that is, "a strong identification with the opposite sex, and a high level of discomfort with your body." The correctional agency's policy also provided that sexual reassignment surgery is an elective procedure and is not provided or available to inmates. Rejecting the prisoner's claims, the appeals court noted that the prisoner, who is thirty-three, had never been diagnosed with GID, and that several evaluations by the prison psychiatric staff failed to reach such a diagnosis. Finally, the prison did properly continue to provide mental health treatment to the prisoner and encouraged him to discuss his feelings. The failure to accept the prisoner's "self-diagnosis" of GID was not arbitrary nor capricious and did not violate his constitutional rights. Smith v. N.J. Dept. of Corrections, #A-3303-08T2, 2010 N.J. Super. Unpub. Lexis 2139.

Visitation

     In an inmate's challenge to an 18-month ban on visits from minors, including his three minor children, his right to receive such visits under the circumstances of the case was not clearly established.  The ban was imposed because the prisoner violated prison rules by having a sexual conversation with a minor on the phone. He claimed that he had actually been engaging in a sexual conversation with his wife and hadn't realized that his minor child was on the phone. The lawsuit was properly dismissed. Dunn v. Castro, #08-15957, 2010 U.S. App. Lexis 19136 (9th Cir.).

     A Wisconsin prisoner claimed that his First and Fourteenth Amendment rights of freedom of association and due process were violated when prison employees refused to put his granddaughters on his approved visitors' list. The prisoner had been convicted of multiple counts of sexual assault upon a child and had engaged in sex acts with seven boys between the ages of 10 and 14, and one of his victims had been his stepson. The refusal was triggered by a request by his daughter-in-law to add his two-month old granddaughter to his authorized visitor list. The prisoner argued that no court order barred such visits and that his two older granddaughters been visiting him already for 13 months. He asked that all three granddaughters be allowed to visit him, and sued when they were not. "Whether he has a constitutional right to receive visits from his granddaughters is an open question," a federal appeals court commented, but he failed to show that the defendants in his lawsuit were personally responsible for barring the grandchildren. Hohol v. Jess, #10-1297, 2010 U.S. App. Lexis 19183 (Unpub. 7th Cir.).

     A prisoner sued over the refusal of prison authorities to reinstate the visiting privileges of his father and sister. The restrictions were imposed after the prisoner allegedly became involved in a large-scale contraband smuggling and money laundering operation masterminded by another prisoner. The scheme supposedly involved 131 prisoners, including the plaintiff, who provided money (over $85,000) to the mastermind's family members and others outside the prison. In return, drugs, weapons, cell phones, and escape paraphernalia were smuggled into the prison. 50 civilians were also allegedly involved. Upholding the ban on visits by the plaintiff's father and sister, the court found that there was substantial, undisputed evidence that they had been involved in the smuggling and money-laundering scheme and therefore posed a security risk to the prison. Benedetto v. Dept. of Corrections, #A-1436-08T2, 2010 N.J. Super. Unpub. Lexis 2214.

Voting

     Update: As previously reported, a 2-to-1 majority of a panel of a federal appeals court ruled that a Washington state law that automatically disenfranchises convicted felons results in denial of the right to vote on account of race in violation of the Voting Rights Act, 42 U.S.C. Sec. 1973, due to racial discrimination in the state's criminal justice system. A strong dissent noted that three other federal circuit courts of appeal have ruled that challenges to felon disenfranchisement laws cannot be brought under the Voting Rights Act. Farrakhan v. Gregoire. #06-35669, 2010 U.S. App. Lexis 141 (9th Cir.). The 9th Circuit, ruling en banc, has now overturned that panel decision, unanimously upholding the state felon disenfranchisement law, which dates back to 1866, before statehood. The court reasoned that inmates seeking to challenge the statute under the Voting Rights Act had to show intentional discrimination in the state's criminal justice system, rather than simply a racial disparity in the composition of the state's prison population. Farrakhan v. Gregoire. #06-35669, 2010 U.S. App. Lexis 20803 (9th Cir.).

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     Consequences of Incarceration: "Collateral Costs: Incarceration's Effect on Economic Mobility," by the Economic Mobility Project and the Public Safety Performance Project of The Pew Charitable Trusts (2010). Serving time reduces hourly wages for men by about 11 percent, annual employment by 9 weeks, and annual earnings by 40 percent, according to this report.

     Prison Riots: Ready to Rumble: Mock Prison Riot 2010, by National Law Enforcement and Corrections Technology Center, NCJ 231043, August 2010, TechBeat Article.

     Mental Health: Getting Inside the Black Box: Understanding How Jail Diversion Works, National GAINS Center (Delmar, NY 2010). People interested in or involved with the diversion of mentally ill offenders from jail will find the results of this program evaluation interesting. Sections of this report are: the Center for Mental Health Services Targeted Capacity Expansion (CMHS TCE) Jail Diversion Program; convening the assessment experts; major findings; beyond data—the black box of jail diversion; “central eight” risk factors; understanding the black box and fine-tuning a model; and next steps and opportunities.

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently-noted jail and prisoner law resources.