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Access to Courts/Legal Info

     A prisoner could not prevail on a denial of access to the courts claim, when he could not show that his ability to pursue a non-frivolous legal claim was hindered by the actions of the defendants. "Even if the most egregious" of his allegations are true, the court stated, "he provides no concrete evidence to demonstrate that defendants' actions caused him prejudice by hindering the progression of his current cases or the pursuit of future litigation, particularly in light of the fact that he had two other cases pending at the same time as this appeal." Lockamy v. Dunbar, #10-40126, 2010 U.S. App. Lexis 22500 (Unpub. 5th Cir.).

     A prisoner claimed that several prison employees denied her right to access to the courts by not allowing her to participate in a telephonic hearing in a paternity action she filed in state court in which she sought an order of child support against her ex-husband. This was supposedly based on her detention in a Restrictive Housing Unit (RSU), and allegedly resulted in the "dismissal" of her action. Upholding the dismissal of the lawsuit, a federal appeals court noted that the First Amendment right of access to the courts for prisoners only applies to two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement, and did not apply to the plaintiff's child support action. Additionally, the child support action did not relate to "anything as fundamental as her parental rights." Even if her First Amendment rights were implicated by her child support action, she failed to establish any "actual injury" because the court merely notified her that her hearing will be rescheduled. Ball v.Hartman, #10-1418, 2010 U.S. App. Lexis 20929 (Unpub. 3rd Cir.).

     A Pennsylvania prisoner filed claims against thirty-four correctional officers and other prison personnel challenging various instances in which they allegedly searched her cell, seized her property, confiscated unspecified legal material, and interfered in various ways with her incoming and outgoing legal mail. She also filed a motion for a preliminary injunction, in which she requested the immediate return of her property and an order requiring defendants to provide her access to the law library and preventing them from labeling her mail. Upholding the denial of a preliminary injunction, a federal appeals court ruled that the plaintiff prisoner failed to establish a likelihood of success on the merits and that she faces irreparable harm in the absence of the injunction. While she argued that the defendants interfered with her right to access the courts, she failed to show that they are interfering with her ability to assert any non-frivolous claim. Ball v. Oden, #10-1702, 2010 U.S. App. Lexis 20785 (Unpub.3rd Cir.).

Diet

     A prisoner sued food service employees, the warden, and the assistant warden, claiming that they failed to screen inmates' food for foreign objects, resulting in him biting down on a metal nut found in cornbread served to him, leading to "excruciating pain" and a broken tooth. A federal appeals court ruled that the trial court acted erroneously in dismissing the lawsuit for failure to state a non-frivolous claim without allowing the prisoner the opportunity to develop further the facts of his claim.

     "A single incident of food poisoning or finding a foreign object in food does not constitute a violation of the constitutional rights of the prisoner affected. Evidence of frequent or regular injurious incidents of foreign objects in food, on the other hand, raises what otherwise might be merely isolated negligent behavior to the level of a constitutional violation." The prisoner alleged that similar incidents had happened before, and that one defendant had been aware of it. Green v. Atkinson, #09-11050, 2010 U.S. App. Lexis 21373 (5th Cir.).

Exercise

     An Illinois prisoner claimed that prison officials violated his Eighth Amendment rights by sanctioning him to 90 days of yard restriction after finding him guilty of violating prison rules, denying him outdoor exercise. He was disciplined for improperly hiding a milk carton in his jumpsuit during yard time. Inmates in the prison had sometimes used such cartons to contain urine or feces, which they would throw. He claimed that the denial of outdoor exercise was detrimental to his health, and denied him a "basic human right," while not challenging the determination that he broke prison rules. Rejecting this claim, the appeals court found that the denial of yard time for 90 days did not amount to a constitutional violation, particularly as the prisoner did not claim that his rule violation was trivial "or that the punishment was disproportionate to his violation." Rasho v. Walker, #09-1803, 2010 U.S. App. Lexis 18963 (Unpub.7th Cir.).

False Imprisonment

     A prisoner was serving a number of sentences, including one for parole violation, with some to be served consecutively. In reviewing his status prior to his scheduled re-parole release date, it was discovered that his maximum sentence had expired 31 days earlier. This was because one judge, in resentencing the prisoner, failed to specify that the new sentence was to run consecutively to other existing sentences. He was then released. He sued various officials, seeking damages for violation of his civil rights in keeping him confined past his sentence. Upholding summary judgment for the defendants, the appeals court ruled that their actions were a mistake, and, at most, negligence, and did not constitute deliberate indifference to the prisoner's rights in violation of the Eighth Amendment. Granberry v. Chairman of the Penn. Board of Probation and Parole, #10-1514, 2010 U.S. App. Lexis 20827 (Unpub.3rd Cir.).

Inmate Funds

     In a prisoner's federal civil rights lawsuit concerning the freezing of his prison trust account after a victim of his violent crime obtained a $2 million judgment against him, the defendant prison official was entitled to qualified immunity because the plaintiff, in 2007, did not have a clearly established right to a pre-deprivation hearing before the freezing of his account. Clark v. Wilson, #09-6219, 2010 U.S. App. Lexis 23939 (10th Cir.).

Inmate Property

    An Indiana prisoner claimed that a property officer and a guard improperly confiscated legal documents and other property and interfered with his right of access to the courts. The property was taken and stored when the prisoner was transferred to a county jail temporarily to appear in court. The amount of property was in excess of what would fit in a box being used to transfer property going with the prisoner. Some of it was allegedly never returned. The prisoner could not pursue a due process claim because Indiana state law provides adequate post-deprivation remedies for loss of property. The court also rejected a right of access to the courts claim because the loss of the legal documents did not cause any prejudice to his criminal case as he was represented by a lawyer. Edwards v. Faust, #09-3264, 2010 U.S. App. Lexis 23101 (Unpub. 7th Cir.).

Immigrants and Immigration Issues

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

     An excessive force claim filed by a federal immigration detainee held in a county jail presented two legal issues, according to a federal appeals court: "What provision of the Constitution should this court use to analyze a federal immigration detainee's claim of excessive force? And does a county's failure to adopt a prophylactic policy with a standard of care higher than what the Constitution requires suffice, by itself, to suggest deliberate indifference to the Constitution's protections against excessive force?"

    The court concluded that due process, rather than the Fourth or Eighth Amendment, provided the proper legal standard to analyze such an excessive force claim by immigration detainees who did not challenge the lawfulness of their detention, and that, in order to create a triable issue of fact on the use of excessive force in such a case, the detainee must do more than show that the county failed to adopt the "most protective possible policy" against the application of force.

    The detainee was removed from his cell and placed in a restraint chair after becoming disruptive in his cell. A member of the certified emergency response team ("CERT") dealing with him then allegedly proceeded to taser him "at least three times" while he was restrained. The trial court found this use of force excessive, and awarded the detainee $100,000 in damages against the officer who used the taser against him. Summary judgment was granted, however, to the county, on the basis that all the evidence suggested that the tasering was no "more than a random act or isolated event which occurred outside of the policies and procedures implemented by" the county sheriff. The award against the individual officer was not appealed.

     Applying the due process standard, the appeals court rejected the claim that the officer's supervisor, who had not himself been personally involved in the use of force, should also be held individually liable. It also rejected claims that the supervisor or sheriff, in their official capacities, should be liable for failure to adequately train CERT team members. "The undisputed facts show that the county trained jailers to use tasers only if and when an inmate should become violent, combative, and pose a direct threat to the security of staff. The record also shows that" the officer knew he was acting in defiance of this policy when he tasered the detainee. Far from exhibiting deliberate indifference to the detainee's due process rights against the use of excessive force or causing his injury -- "the county actively sought to protect those rights" and it was only the officer's improper actions, taken in defiance of county policy, that caused the detainee's injuries.

     The appeals court rejected the argument that the county's "failure to enforce a prophylactic policy imposing a standard of care well in excess of what due process requires," banning the use of a taser on an immigration detainee, was "enough by itself to create a triable question over whether county officials were deliberately indifferent to the Constitution." Porro v. Barnes, No. 10-6002 2010 U.S. App. Lexis 2324 (10th Cir.).

Medical Care

    An arrestee claimed that a booking officer was deliberately indifferent to his serious medical needs by failing to get him medical attention for injuries allegedly suffered from a police beating during his arrest. Upholding summary judgment on the basis of qualified immunity for the officer, a federal appeals court noted that the arrestee did not request medical attention, and that it was not objectively apparent that he had a serious medical need. Youmans v. Gagnon, #09-15113, 2010 U.S. App. Lexis 23534 (11th Cir.).

     An inmate allegedly started losing significant weight and experiencing abdominal pain. Ultimately, a large cancerous mass was found inside him, and he died. A lawsuit by his estate claimed that his requests for medical help were, at times, ignored, and that some prison personnel thought he was faking his illness and commented that prisoners were "not supposed" to "feel good." Claims against correctional officers were rejected, as the evidence did not establish the culpability of any specific officer. There was, however, sufficient evidence to raise a genuine question as to whether two nurses knew of the prisoner's medical needs yet ignored the risk to his health. A doctor's actions did not amount to "grossly inadequate care," and there was no indication that the county had a custom of deliberate indifference to inmate medical needs. Jones v. Muskegon County, #09-2125, 2010 U.S. App. Lexis 23034 (6th Cir.).

     A prisoner claimed that prison employees denied him access to prescribed crutches after his heel surgery, and forced him to perform tasks, such as cleaning his cell, despite his status of recuperating from surgery. The record, however, showed that the prisoner was allowed to use the crutches even after the date when he was told by medical personnel that he should start to discontinue using them. He was only denied them after prison personnel received information from his orthopedist's office about his weight-bearing status. The prisoner also failed to show that cleaning his cell either caused him further injury or worsened his existing injury. Young v. Nichols, #09-15790, 2010 U.S. App. Lexis 20619 (Unpub.11th Cir.).

Parole

     A class action lawsuit brought by California life-term prisoners asserted that Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which modified the availability and frequency of parole hearings, violated their constitutional rights, specifically the Ex Post Facto Clause, which prohibits the retroactive enhancement of punishment. Overturning a trial court's injunction against the law's enforcement as an abuse of discretion, a federal appeals court found that the mechanism allowing prisoners to request advance hearings provided for by the statute was sufficient to reduce any risk that the prisoners would improperly be subjected to increased punishment. Gilman v. Schwarzenegger, #10-15471, 2010 U.S. App. Lexis 24842 (9th Cir.).

Prison and Jail Conditions: General

     A Pennsylvania prisoner claimed that conditions at the facility, including inadequate ventilation in his cell, exposure to extreme heat and cold, rodent infestation, and overcrowding (allegedly increasing the risk of infectious diseases) amounted to cruel and unusual punishment. The trial court granted summary judgment for the defendants. A federal appeals court ruled that the prisoner's transfer to another facility rendered most of his arguments on appeal moot, such as his request for injunctive relief, as he had not shown that he was likely to be again subjected to the same alleged conditions. What was not moot was his claim for money damages, based solely on an alleged risk of future harm as a result of exposure to coal smoke in the prison yard. The appeals court upheld the rejection of this claim, as the prisoner had presented no medical or scientific evidence that he faces an actual risk of future harm. Griffin v. Beard, #09-4404, 2010 U.S. App. Lexis 23659 (Unpub. 3rd Cir.).

    A former pretrial detainee claimed that she was subjected to unconstitutional conditions of confinement at a county detention facility. Specifically, she claimed that she was forced to take medication without food, which resulted in stomach problems and rendered the medication ineffective. Such a claim, the appeals court ruled, required expert testimony as the seriousness of  the possible injury or illness would not be apparent. "Whether a medication is ineffective if it is given without food is not readily apparent to a lay person." Since the plaintiff offered no such expert testimony, summary judgment for the defendants was properly entered on this claim.

     The plaintiff also challenged her confinement, at times, in "the green room," which had green tile on three of the walls and a fourth wall made of glass, lacked any furnishings or stationary objects, including a traditional toilet, but did have an eight inch drain in the middle of the floor covered by a grate. The room was used to observe "people coming down from drugs, violent people or people on suicide watch." The plaintiff had allegedly engaged in self-destructive behavior. The appeals court acknowledged that "the absence of a traditional toilet may deprive an inmate of access to the usual sanitation measures afforded other inmates who are not at risk of hurting themselves." Two other cells adjacent to the green room, however, were equipped with traditional toilet facilities, and inmates confined in the green room are given access to these traditional toilet facilities upon request. Additionally, in the event an inmate utilizes the drain to relieve himself/herself, prison staff members were required to clean the room as soon as it is safe to do so. Patterson v. County of Washington, #08-3649, 2010 U.S. App. Lexis 19496 (Unpub.3rd Cir.).

Prisoner Assault: By Inmates

    A pretrial detainee claimed that a jail guard and various supervisory officials failed to properly protect him from an assault by another detainee that allegedly caused him facial injuries requiring surgery. Summary judgment for the defendants was affirmed, as the prisoner did not show that any of them failed to respond reasonably to a substantial risk of harm. An earlier incident between the plaintiff and his assailant resulted in no injury, and the two detainees appeared after that to be reconciled, so the defendants did not act with knowledge or notice of a substantial risk of serious harm. Schoelch v. Mitchell, #08-2776, 2010 U.S. App. Lexis 23416 (8th Cir.).

     A pre-trial detainee claimed that a correctional officer opened his cell door to allow another inmate to enter and attack him with a master lock inside a sock, causing serious injuries. His lawsuit sought damages against his assailant, the correctional officer, and the warden. Claims against the warden were properly rejected, because there was no indication that he was personally involved in the incident in any way. Claims against the attacking inmate were rejected as he is a private person and did not act under color of law as required for a federal civil rights lawsuit. Finally, the appeals court ruled that the correctional officer's alleged conduct was, at most, negligence, and did not rise to the level of deliberate indifference required for a federal civil rights claim. Burton v. Kindle, #10-2915, 2010 U.S. App. Lexis 23299 (Unpub.3rd Cir.).

Prisoner Assault: By Officers

    A woman detained at a county jail following a domestic disturbance became involved in an altercation with a female deputy. After other officers aided this deputy in restraining the detainee and she remained restrained on the floor, the deputy allegedly grabbed her head and slammed it to the floor seven to eight times, causing cuts and bruises on her face and leaving a pool of blood on the floor. Upholding a denial of summary judgment for the deputy on an excessive force claim, a federal appeals court ruled that this conduct, if true, was force obviously beyond what the law would allow. Summary judgment was granted, however, on a claim of deliberate indifference to serious medical needs arising from the incident. Pourmoghani-Esfahani v. Gee, #10-10020, 2010 U.S. App. Lexis 23205 (11th Cir.).

     In an excessive force lawsuit brought by a disorderly conduct detainee claiming that a correctional officer at a county jail beat him until he sustained a lasting brain injury, the appeals court held that no reasonable jury could find for the plaintiff when he conceded that he had no memory of being beaten by anyone at anytime relevant to the lawsuit. Harriman v. Hancock County, #09-2284, 2010 U.S. App. Lexis 24838 (1st Cir.).

     A Texas inmate claimed that his constitutional rights were violated when an officer ordered him to walk down stairs while handcuffed and wearing wet shower shoes. The officer allegedly used excessive force and verbal threats against him. Upholding the dismissal of the lawsuit, a federal appeals court found that the officer's alleged conduct, if true, might be negligent, but did not demonstrate a deliberate indifference to a serious risk of harm to the prisoner. He did not claim that the officer pushed him or otherwise physically forced him down the stairs, or used excessive force in handcuffing him. And "mere threatening language does not amount to a constitutional violation, giving rise to liability." Widner v. Aguilar, #10-10205, 2010 U.S. App. Lexis 22286 (Unpub. 5th Cir.).

Prisoner Transfer

     A prisoner confined in a Restrictive Housing Unit ("RHU") claimed that this confinement has caused her physical and mental condition to deteriorate such that, among other things, she has lost over 100 pounds and become malnourished, suffers from schizophrenia and bipolar disorder, and experiences migraines and nausea. She also claimed that her confinement in the RHU has prevented her from visiting with or calling her family. She sought transfer to a prison in another state, as well as money damages. She appealed the denial of a preliminary injunction granting the transfer. Upholding the denial, the appeals court noted that the plaintiff did not ask for her release from the RHU into the general population, nor request that the defendants take steps to remedy her alleged physical and mental conditions while in the RHU. The plaintiff "has no entitlement to incarceration in any particular prison, let alone one outside Pennsylvania." Ball v. Beard, #10-1419, 2010 U.S. App. Lexis 20792 (Unpub.3rd Cr.).

Racial Discrimination

     A man civilly committed as a sexually violent person claimed that an employee at the facility where he is confined engaged in racial discrimination by refusing to serve him ice cream during an ice cream social. Evidence concerning the incident showed that the employee believed that the plaintiff's classification did not entitle him to participate in the event, and that nothing was said about race, nor was there any other evidence of racial animus. The plaintiff also claimed that administrators who resolved his grievance over the incident by determining that the employee simply made a mistake about his eligibility to participate acted with racial animus. Noting that this was one of five lawsuits filed by the plaintiff in the past year, "and by far the most frivolous," the appeals court upheld the lawsuit's dismissal. The complaint was "speculative and does not permit even a plausible inference that race motivated the employee's action. ... We have said in another context that 'the concept of equal protection is trivialized when it is used to subject every decision made by a state or local government to constitutional review by federal courts.'" Thomas v. Priebe, #10-2765, 2010 U.S. App. Lexis 22465 (Unpub.7th Cir.).

Retaliation

     A prisoner claimed that a captain retaliated against him for filing a grievance. Rejecting this claim, the appeals court first noted that allegations of verbal abuse do not rise to the level of a constitutional violation. Second, the captain's alleged failure to follow prison procedures and regulations for the plaintiff's job transfer was insufficient without additional facts to show a retaliatory motive. The prisoner failed to present "direct evidence of motivation" or "a chronology of events from which retaliation may plausibly be inferred" in support of his contention that the captain transferred him in retaliation for his refusal to dismiss a grievance against another prison officer. Randolph v. London, #10-30074, 2010 U.S. App. Lexis 23017 (Unpub.5th Cir.).

Search and Seizure: Prisoner/Cells

    A federal prisoner claimed that officials violated his Fourth Amendment rights by conducting electronic word searches on documents that he drafted on a shared word processor. Upholding the dismissal of his lawsuit, a federal appeals court stated that "inmates have no legitimate expectation of privacy in their prison cells or possessions." Rodriguez v. Karge, #09-15482, 2010 U.S. App. Lexis 20656 (Unpub.9th Cir.).

Work/Education/Recreation Programs

    A prisoner sued federal officials, claiming that they violated his rights because he had been approved for a pay increase for his prison job but had never received the raise. The only defendants he named were the U.S. Attorney General and an administrative remedy coordinator at the prison. Since the prisoner failed to show that these defendants were personally involved in denying him his raise, a federal appeals court held that his complaint was properly dismissed. Additionally, the court noted, "prison inmates simply have no constitutionally protected interest in retaining prison employment—let alone in promotions." McKay v. U.S. Dept. of Justice, #10-3074, 2010 U.S. App. Lexis 22939 (Unpub.3rd  Cir.).

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     Children of Prisoners: "Children of Incarcerated Parents: A Handbook for Researchers and Practitioners," edited by Julie Poehlmann and J. Mark Eddy (Urban Institute 2010).

     Ex-Inmate Employment: "Reaching a Higher Ground: Increasing Employment Opportunities for People with Prior Convictions," The Berkeley Center for Criminal Justice (Nov. 2010).

     Female prisoners: "Post-traumatic stress disorder and victimization among female prisoners in Illinois" (Illinois Criminal Justice Information Authority. Nov. 2010) summarizes a study involving interviews with 163 randomly-selected female prisoners at Illinois Department of Corrections facilities. Study participants were asked questions on prior victimization in their lives, and symptoms of post-traumatic stress disorder (PTSD) were gauged using the PTSD Symptoms Checklist. Findings indicated that many female prisoners have or previously experienced PTSD symptoms. In addition, those who experienced any childhood abuse, more severe abuse, and sexual abuse were more likely to experience PTSD or greater levels of PTSD. These findings indicate needs for services to treat female prisoners suffering from PTSD.

Reference:

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

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