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     A prisoner's federal civil rights lawsuit claimed that two prison guards verbally abused him, conspired against him, used excessive force against him, and placed him in unconstitutional conditions of confinement. The lawsuit was ultimately dismissed based on the prisoner's failure to prosecute, and after his motion for an appointed lawyer was denied. Eighteen months later, the prisoner later filed a motion to reopen the case, arguing that his inability to speak English, or to read any language, including his native Spanish, prevented him from responding to any of the defendants' motions or filing a notice of appeal.

     That motion was prepared by another inmate, and was denied. This result was upheld on appeal. The appeals court found that there was "no apparent explanation as to why he was able to file some documents with the District Court, but not other documents," and that the plaintiff prisoner's "argument about the difficulties presented by his language problems is undercut by the seven motions that he filed throughout the litigation." Pabon v. LeMaster, #10-2404, 2010 U.S. App. Lexis 21272 (Unpub. 3rd Cir.).

Chemical Weapons

     A federal appeals court ruled that a prisoner asserting a claim for excessive use of force failed to show that prison guards acted "maliciously and sadistically for the very purpose of causing him harm" when using pepper spray on him after he repeatedly refused to comply with orders to cease holding his blanket up to his cell door. Horne v. Rutledge, #09-17378, 2010 U.S. App. Lexis 20564 (Unpub. 9th Cir.).

Disability Discrimination: Prisoners

     Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12165, a federal appeals court ruled, does not validly abrogate state sovereign immunity in a lawsuit brought by disabled inmates who claimed that they were denied access to prison educational and work programs on the basis of their disabilities. The lawsuit was filed against Mississippi state prison officials in their official capacities. The court reasoned that in authorizing such claims, Congress exceeded its authority to the extent that they are not “congruent and proportional” to the enforcement of the Equal Protection Clause of the 14th Amendment. The parties in the case agreed that none of the defendants' conduct arguably violated the Fourteenth Amendment. Hale v. King,  #07-60997, 2010 U.S. App. Lexis 21463 (5th Cir.).

Inmate Property

     An inmate claimed that Indiana prison officials and employees were responsible for the loss of his boom box, ten cassette tapes, a combination lock, and two "starfoam coolers" which were not returned to him after he was transferred to a California prison from one in Indiana. Upholding the dismissal of the lawsuit, an intermediate Indiana appeals court noted that state law concerning holding government employees personally liable for the loss of such property must show that the employees' acts or omissions were criminal, clearly outside the scope of their employment, malicious, willful and wanton, or calculated to benefit the employee personally. The plaintiff prisoner failed to show that any of these factors were present. Prison officials were shielded against liability for the negligent loss of prisoner property under a state Tort Claims Act. Mott v. Buss, #46A04-1003-SC-17, 2010 Ind. App. Unpub. Lexis 1270 (Unpub.).

Medical Care

     The alleged misdiagnosis of a prisoner's foot and stomach pain by prison medical personnel, and their alleged failure to warn him of the potential side effects of pain medication was, at most, negligence, and could not be the basis for a federal civil rights lawsuit for deliberate indifference to his serious medical needs. Burgess v. Mar, #09-17070, 2010 U.S. App. Lexis 18862 (Unpub. 9th Cir.).

     A Wisconsin prisoner claimed that a doctor acted with deliberate indifference by failing to see him for almost four weeks after he complained of problems arising from reconstructive surgery he had on his ankle two years earlier. He claimed that the screws in the ankle were loose and that he could barely step on the ankle, and that he was experiencing pain. A nurse noted that he was walking with a limp. The court found that the doctor had no reason to believe that the prisoner was not receiving medication for the pain, and the records showed that, once the doctor saw the prisoner and took an x-ray, no further procedures were indicated.

     While the doctor prescribed some pain medication, the record also reflected that the prisoner himself had not been refilling a prescription he already had for a another non-steroidal anti-inflammatory drug. No reasonable jury could find that the doctor acted with deliberate indifference, and the delay really only amounted to nine days after the doctor became aware of the situation. The delay was not unreasonably long, given that it related to surgery that took place two years earlier. Schaller v. Heinzl, #10-1141, 2010 U.S. App. Lexis 18674 (Unpub. 7th Cir.).

     A prisoner claimed that prison employees were deliberately indifferent to his serious medical needs because they refused to provide him with a new pair of high-top work boots for a period of approximately seven months. While the prisoner had a medical pass to have the boots replaced, his request was denied under a prison policy that boots be issued only to field workers, and not to prisoners assigned to work in the kitchen. Given the prisoner's assignment to a kitchen job, the appeals court ruled, the denial of the boots was not an action that was in reckless disregard of his health or could be termed wanton under the Eighth Amendment. His lawsuit was, therefore, properly dismissed. Ganther v. Dalton, #09-41220, 2010 U.S. App. Lexis 19898 (Unpub. 5th Cir.).

Prison and Jail Conditions: General

     A county sheriff appealed from a federal court's order requiring him to take affirmative actions to remedy conditions in county jails that were found to violate the Eighth and Fourteenth Amendments. Upholding the trial court's order, the appeals court found that t had not been erroneous for the court below to hear evidence on both rights violations and possible remedies at the same hearing. Further, the trial court did not "clearly err" in finding that air temperatures above 85 degrees Fahrenheit "greatly increased" the risk of prisoners who took psychotropic medications suffering from heat-related illnesses, and that the food provided to prisoners was inadequate. Graves v. Arpaio, #08-17601, 2010 U.S. App. Lexis 21077 (9th Cir.).

      A prisoner complained that, for three days, liquid seeped through vent holes in the cinder block wall of his cell onto the floor. He failed to show that this condition violated his constitutional rights, as the jail administrator responded promptly to his complaints, the incident did not last long, and cleaning materials were made available. Honeycutt v. Ringold, #10-6077, 2010 U.S. App. Lexis 20378 (Unpub. 10th Cir.).

Prisoner Assault: By Inmates

     A federal prisoner filed a federal civil rights lawsuit claiming that prison officials had been deliberately indifferent to his safety, seeking compensatory and punitive damages for past assaults on him by other inmates. He also sought an injunction against the defendants housing him with inmates who pose a danger to his safety, which was denied because the alleged risk of harm was speculative. He was allegedly attacked because other prisoners learned that he had quit a gang and had cooperated with authorities. A federal appeals court ruled that he was not entitled to an injunction, as prison officials had transferred him to a new facility, and had not shown that he was in any immediate danger of attack there. Pinson v. Pacheco, #10-1360, 2010 U.S. App. Lexis 20813 (Unpub. 10th Cir.).

Prisoner Death/Injury

     A pretrial detainee failed to show that his supposedly adverse reaction to HDQ Neutral, a cleaning product used at the county jail, involved a serious medical need for purposes of trying to establish that the defendants acted with deliberate indifference in violation of his constitutional rights. The prisoner, who was taking medication for asthma, alleged that exposure to the cleaning product caused him to "cough up blood." The record indicated that a reasonable jury could find that the prisoner did not show that a physician or other medical personnel had diagnosed him with a medical condition that required treatment while he was detained.

     An examination of the prisoner revealed only some nasal drainage, and otherwise found him in normal condition, with an instruction that he should move away from where the cleaning products were being used. While one doctor later stated an opinion that chemicals used at the jail caused medical problems for the prisoner, a competing expert rejected the diagnosis of asthma, and found no evidence of pulmonary fibrosis in a CT scan. The jury thus reasonably determined that the prisoner failed to establish a serious medical need while incarcerated. Christian v. Wagner, #09-2417, 2010 U.S. App. Lexis 21609(8th Cir.).

Prisoner Discipline

     A California prisoner found guilty of disciplinary charges for unlawful influence of staff, and punished by a loss of good time credits, claimed that his due process rights were violated because he was denied the opportunity to call four staff witnesses at the hearing. Because the record indicated that the proposed testimony by these witnesses was irrelevant to the issues in the hearing, the prisoner was not denied due process by the exclusion of these witnesses. Williams v. Finn, #09-16010, 2010 U.S. App. Lexis 18039 (Unpub. 9th Cir.).

     A prisoner found guilty of disciplinary charges of possessing inmate-manufactured alcohol argued that his due process and equal protection rights were violated at his hearing. He contended that the guilty finding was not supported by "some evidence," and that the hearing officer improperly denied his request to call three additional witnesses. The appeals court found that there was, in fact, some evidence in the record supporting the conviction, and that the proposed testimony of the additional witnesses would have been irrelevant. The fact that the plaintiff prisoner was found guilty of possession of the alcohol, while other inmates, allegedly in the same circumstances, were exonerated did not show a violation of equal protection of law. While equal protection ensures that similarly situated persons are treated alike, it does not ensure "absolute equality." Smith v. Yates, #09-16158, 2010 U.S. App. Lexis 20459 (Unpub. 9th Cir.).

     A federal prisoner filed a habeas corpus petition claiming that there were various irregularities and due process violations in the disciplinary hearing which resulted in him losing commissary, visiting, and telephone privileges, as well as receiving additional time in the "hole," and 27 additional days in prison. He also claimed that he was subject to illegal retaliation for pursuing his administrative remedies, and was therefore subjected to "diesel therapy" a punishment he defined as being transported in shackles and a belly-chain around the country with stops in the "holes" of various federal prison facilities. He was charged with filing fraudulently notarized liens (which he characterized as grievances).

     The appeals court upheld the dismissal of most of his clams, as he could not challenge the conditions of his confinement in a habeas corpus proceeding. It reinstated, however, his claim that his due process rights were violated during his disciplinary hearing, which he asserted was a sham trial because he was not permitted to face his accusers, and which resulted in 27 days' additional confinement. He could pursue this claim in a habeas petition, since it involved the duration of his confinement. Stanko v. Obama, #09-4668, 2010 U.S. App. Lexis 19688 (Unpub. 3rd Cir.).

Prisoner Suicide

     A prisoner suffering from bipolar disorder hung himself to death in his cell in a Texas prison. His mother sued, claiming that prison authorities had been deliberately indifferent to her son's condition, in violation of the Eighth Amendment. She also asserted a disability discrimination claim under the Americans with Disabilities Act (ADA). She argued that he had been denied treatment for his condition, that he was denied medication or it was confiscated, causing manic episodes, and that he was sometimes denied Lamictal, fish oil supplements, and vitamin E, which had been effective in treating his bipolar disorder, and instead provided with ineffective medications with extreme side effects. She also contended that prison employees missed clear signs that his mental health was deteriorating and that he was a suicide risk.

     At the time of his death, he was being housed in isolation, which was allegedly a violation of the standards issued by National Commission on Correctional Health Care ("NCCHC"), which direct that suicidal prisoners not be housed in isolation, unless under constant supervision. He was allegedly not closely monitored, and his mother argued that log entries showing the contrary had been fabricated. The federal appeals court upheld a determination that the lawsuit's federal civil rights clams against the state Department of Criminal Justice and prison officials in their official capacity were barred by sovereign immunity, while all other federal civil rights and ADA claims were time-barred as they involved conduct that had occurred over two years ago. Brockman v. Tex. Dept. of Criminal Justice, #09-40940, 2010 U.S. App. Lexis 20349 (Unpub. 6th Cir.).

Racial Discrimination

     Prisoners in a Delaware prison claimed that various prison officials discriminated against their chapter of the NAACP on the basis of race, discriminated against African-American inmates in job placement and various prison procedures, and mistreated disabled prisoners. Most of the claims were barred by the failure of the plaintiffs to exhaust available administrative remedies by filing and pursuing grievances over these issues. A grievance had, however, been filed concerning the alleged racial discrimination against the NAACP chapter. The complaint claimed that prison officials had closed the chapter's office, denied members access to the computer room, only allowed chapter meetings if prison security staff members were available, and prevented family and friends from attending such meetings.

     A federal appeals court found that these allegations, even if true, did not show that the NAACP chapter and its members had been treated differently than other prisoner groups on the basis of race. The record showed that all prison groups had been prevented from accessing the computer room in order to allow for more computer classes, that prison security staff were required to be present at all prison group meetings if a group does not have regular volunteers to run its meetings, and that family and friends are not allowed to attend any prison group's regular meetings. The NAACP chapter, the court concluded, still operates, and is treated no differently from any other prisoner group. Hubbard v. Danberg, #10-1886, 2010 U.S. App. Lexis 21120 (Unpub. 3rd Cir.).

Religion

****Editor's Case Alert****

     A federal appeals court found that a prisoner had sufficiently alleged that disciplining him for refusing to comply with prison body-piercing regulations imposed a substantial burden on the exercise of his religious beliefs. The trial court had determined that these beliefs were sincerely held. The appeals court ordered further proceedings on whether the piercing regulation was the least restrictive means of furthering a compelling government interest. Cortez v. Noll, #09-15690, 2010 U.S. App. Lexis 20583 (Unpub. 9th Cir.).

     A Muslim prisoner failed to prove that his exclusion from formal prison Ramadan activities violated his First Amendment rights to religious freedom. Participation had been limited to "observant" Muslims as identified by the prison's Islamic chaplain, who selected those prisoners who attended at least three of the four Friday Jumu'ah prayer services immediately preceding Ramadan.

     Under this policy, the plaintiff prisoner did not qualify as an observant Muslim. By thus limiting the attendance at Ramadan activities, prison officials rationally promoted two valid penological interests: 1) security by reducing unnecessary inmate movement; and (2) economy by minimizing unnecessary expenses associated with providing Ramadan privileges. The prison did not bar the prisoner from observing Ramadan by fasting and praying on his own, and when he later resumed regularly attending Friday prayer meetings, he was again allowed to participate in subsequent formal prison Islamic activities, "including the post-Ramadan fast of Shawwal."

     The prisoner also sought money damages on a claim that his exclusion from the Ramadan activities had violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires that prison officials have a compelling state interest to justify placing a substantial burden on a prisoner's religious beliefs and use the least restrictive means in doing so. The court reserved judgment on that issue, pending the U.S. Supreme Court's resolution of the question of whether an individual may sue a state or a state official in his official capacity for money damages under the RLUIPA. See Sossamon v. Texas, #07-50632, 560 F.3d 316 (5th Cir. 2009), cert. granted, 130 S. Ct. 3319 (2010). Hall v. Ekpe, #09-4492, 2010 U.S. App. Lexis 21243 (Unpub. 2nd Cir.).

Retaliation

     A prisoner transferred to a new facility filed "numerous formal grievances" concerning the conditions of his confinement, as well as grievances concerning the denials of those grievances. Finally, he filed a civil rights lawsuit against sixteen correctional employees, claiming that they had engaged in unlawful retaliation against him for protected conduct, such as pursuing his grievances and a prior lawsuit. The retaliation allegedly consisted of denying him proper housing, denying him the non-smoking, compatible cellmates he requested, failing to properly investigate or adjudicate his grievances, failing to provide him with required program services, and failing to provide institutional support for a favorable parole recommendation. He later added claims that one defendant also retaliated against him by firing him from inmate employment, preventing him from receiving outside work clearance, denying him access to mandatory program services, and having his typewriter improperly confiscated.

     Upholding summary judgment for the defendants, a federal appeals court found that the prisoner had failed to produce any evidence, beyond his "bare assertions," that any of the adverse actions taken against him were the result of unlawful retaliation. The denials of housing and cellmate requests, in particular, were found to be based on legitimate penological reasons. The prisoner was, in fact, transferred to a non-smoking unit, but was unsatisfied because some prisoners were violating the policy by sneaking cigarettes in. His two requests, that he be moved away from harassing cellmates and housed in a non-smoking unit, were essentially granted. The mere failure to allow the plaintiff to choose his own cellmates was not an action adverse enough to deter a person of ordinary firmness from exercising his constitutional rights.

     The denial of support for the prisoner's parole was based on his failure to fully accept responsibility for his crime, which involved traveling across state lines to have sexual relations with an underage girl. His termination from a job as a prison janitor occurred after his prior job as a "block runner" was discontinued, and was based on a poor performance evaluation and inappropriate demeanor. The prisoner himself expressed his wish not to be a janitor, and at one point refused to work. All other claims were similarly rejected, and in some instances, such as the confiscation of the typewriter, the prisoner failed to show that the individual named as the responsible defendant was actually involved in the action. Alexander v. Fritch, #10-2173, 2010 U.S. App. Lexis 20679 (Unpub. 3rd Cir.).

Sex Offenders

****Editor's Case Alert****

     A prisoner serving a life sentence without possibility of parole for first-degree murder of a woman challenged his classification as a sex offender and a recommendation that he be enrolled in a sex offender treatment program. He had never been charged with or convicted of any sexual offense. A federal appeals court held that, under these circumstances, the prisoner was entitled to due process before Pennsylvania classifies him as a sex offender, since such classification is highly stigmatizing, reinstating his procedural due process claim. Renchenski v. Williams, #07-3530, 2010 U.S. App. Lexis 20428 (3rd Cir.).

Smoking

     A New Jersey inmate claimed that the staff and administrator of the facility where he was incarcerated failed to adequately address his exposure to environmental tobacco smoke (ETS), resulting in him developing respiratory ailments, such as chest pain and recurrent asthma. He argued that there was "rampant smoking" by both inmates and staff at the facility, despite state law and a smoking policy. The appeals court found that the prisoner had failed to establish deliberate indifference on the part of the defendants. An institutional smoking policy aimed at minimizing the risks posed to nonsmokers by passive inhalation of ETS had been in place for years, and citations had been issued for its violation. These responses, as well as the responses of staff members to the plaintiff's complaints, indicated "attentiveness to the policy and awareness of and disciplining of violators—if not necessarily total success in enforcement." Slaughter v. Rogers, #10-2911, 2010 U.S. App. Lexis 21219 (Unpub. 3rd Cir.).

Visitation

    A former civil detainee at a state hospital, detained there under California's Sexually Violent Dangerous Predator Act, appealed from the dismissal of his federal civil rights and state law lawsuit challenging a decision by hospital authorities denying him visits from his minor nieces and nephews. Upholding the dismissal, a federal appeals court noted that the denial of visitation rights was because of a policy barring visits from minor children within the age and gender profiles of a detainee's former victims. This policy, the court found, serves a legitimate, non-punitive governmental interest. Force v. Hunter, #09-56294, 2010 U.S. App. Lexis 20773 (Unpub. 9th Cir.).

Voting

     Convicted felons in Tennessee challenged the state's voter re-enfranchisement statute, which only permits restoration of a felon's voting rights if they have paid any court-ordered victim restitution and child support payments. They claimed that putting these conditions on the restoration of their voting rights violated equal protection and the 24th Amendment to the U.S. Constitution, which outlaws a poll tax, as well as the ex post facto and privileges and immunities clauses of the U.S. and state Constitutions.

     Rejecting these claims, a federal appeals court found that the challenged conditions had, at a minimum, a direct and rational relationship to the advancement of legitimate state interests, and did not violate equal protection. Further, the payment of victim restitution and child support did not qualify as the type of "tax" the 24th Amendment was intended to prohibit. Prior caselaw barred the remaining claims. Johnson v. Bredesen, #08-6377, 2010 U.S. App. Lexis 22357 (6th Cir.).

Work/Education/Recreation Programs

     A Delaware prisoner sued, claiming that he had been "illegally fired" from his prison job without a hearing. The state Supreme Court rejected this claim, stating that it was "well-established" under state law that an inmate "has no protected liberty interest in a prison work assignment." Smith v. Salas, #438, 2010 Del. Lexis 458.

     A federal prisoner claimed that he was unjustly terminated from his job with UNICOR (also known as Federal Prison Industries). He contended that this occurred as a result of a forged "Inmate Request to Staff" submitted by a UNIICOR staff member who was named as one of the defendants in his lawsuit. The other defendants were accused of "covering up" this forgery. The appeals court ruled that, even assuming this were all true, the lawsuit was still properly dismissed since prisoners have "neither a property nor a liberty interest in prison employment and thus lack a due-process interest" implicated by the loss of their prison employment. Further, while the prisoner also complained that his firing was "retaliatory," he failed to present any facts to show this, and had "done little else to suggest retaliation beyond using the word itself." Dawson v. Frias, #10-2200, 2010 U.S. App. Lexis 21278 (Unpub. 3rd Cir.).

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     Female Inmates: "Mothers Behind Bars: A state-by-state report card and analysis of federal policies on conditions of confinement for pregnant and parenting women and the effect on their children," by the National Women's Law Center and the Rebecca Project for Human Rights (Oct. 28, 2010). The report analyzes policies in three areas—prenatal care, shackling of pregnant women during childbirth, and community-based alternatives to incarceration enabling mothers to be with their children.

     Prison Recycling: "A Review of Federal Prison Industries’ Electronic-Waste Recycling Program," U.S. Department of Justice, Office of the Inspector General (October 2010).

     Religion: "Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act," U.S. Department of Justice Department (Sept. 22, 2010),

     Voting: "Expanding the Vote. State Felony Disenfranchisement Reform, 1997-2010," by Nicole D. Porter (Sentencing Project, Oct. 2010). According to the report, 23 states have amended felony disenfranchisement policies since 1997, restoring voting rights to approximately 800,000 felons. Nine states either repealed or amended lifetime disenfranchisement laws; three states expanded voting rights to persons under community supervision, and eight states eased the restoration process for persons seeking to have their voting rights restored.

Reference:

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

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