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     A Pennsylvania prisoner filed a lawsuit challenging the confiscation of certain Uniform Commercial Code (UCC) as contraband, both from his mail and from a search of his cell. He had planned, he asserted, to use those documents in his state criminal case to argue that he was entitled to release from prison under the UCC, because the documents showed him to be a "Secured Party Sovereign." The seizures, he argued, therefore interfered with his right of access to the courts. Rejecting these claims, a federal appeals court found that the confiscations had not interfered with the plaintiff's ability to assert a non-frivolous legal claim, as the argument he wished to pursue in his state criminal case, that he is somehow entitled to release from prison because he is a "Secured Party Sovereign" – is "the epitome of frivolous." Further, despite the confiscation of the documents, he did present this frivolous argument to the state court anyway. Schlager v. Beard, #10-2184, 2010 U.S. App. Lexis 22467 (Unpub. 3rd Cir.).

Diet

     A Texas prisoner claimed that he was subjected to cruel and unusual punishment by being deprived of six meals over a 54-hour period, but a federal appeals court upheld summary judgment for the defendants. Prison officials must provide reasonably adequate food to inmates. To show an Eighth Amendment violation, a prisoner must show that conditions were "so serious as to deprive him of the minimal measure of life's necessities, as when denied some basic human need," and that prison officials acted with deliberate indifference. In this case, the prisoner failed to show that he suffered any physical injury as a result of missing the meals. His assertion that he caused himself two self-inflicted injuries as a result of being deprived of food was insufficient to defeat summary judgment when he had a well-documented history of causing harm to himself that predated the events at issue. Lockamy v. Rodriguez, #10-10332, 2010 U.S. App. Lexis 24204 (Unpub. 5th Cir.).

DNA

     The Fourth Amendment does not bar a California state law requirement that prison inmates convicted of a felony provide a blood sample for purposes of DNA identification. No specific court order is required, and a prisoner who refuses to comply can be subjected to force to compel a sample. Hamilton v. Brown, #09-15236, 2011 U.S. App. Lexis 70 (9th Cir.).

Drug Abuse and Testing

     A guard found marijuana and barbiturates in a cell that the plaintiff prisoner shared with four other inmates, and he was found guilty of possession of contraband, losing 40 days of good time credit, based on a prison rule making all prisoners responsible for all contraband found in their cells. Rejecting a civil rights lawsuit by the prisoner, a federal appeals court ruled that "it has not been established to this day that collective responsibility among prisoners is unconstitutional." The fact that a trial judge in Colorado, after the prisoner was transferred there from Illinois, had a different view, restoring the prisoner's good time credits because another prisoner had confessed that the drugs were his, did not alter the result, as none of the defendants in the civil rights lawsuit were parties to the Colorado habeas proceeding. Shelby v. Whitehouse, #10-1419, 2010 U.S. App. Lexis 23100 (Unpub. 7th Cir.).

First Amendment

     A detainee at a county jail claimed that a shift commander violated his First and Fourteenth Amendment rights by "threatening him." He had asked why the jail was on lockdown, and the shift commander allegedly said, "Top Secret, if I told you, I'd have to kill you." The prisoner claimed that this statement was not in jest, and that he feared for his life. When he filed a grievance concerning the incident, he was allegedly confronted by the shift commander, who accused him of trying to ruin her career, and warned him that she could make his stay "very uncomfortable" if he did not "back off." Instead of relenting, he filed a second grievance. He had no further contact with the shift commander, and suffered no adverse consequences. Upholding summary judgment for the defendant in the detainee's lawsuit, a federal appeals court found that the trial court properly determined that the shift commander's alleged "isolated comments, uncoupled from any adverse action, could not have deterred a reasonable person from exercising his First Amendment rights." Foster v. Powell, #09-2070, 2010 U.S. App. Lexis 24572 (Unpub. 7th Cir.).

Mail

     A Wisconsin prisoner claimed that a correctional officer and a captain violated his First Amendment and due process rights by intercepting and confiscating his outgoing letter. Upholding summary judgment for the defendants, the appeals court ruled that these actions were proper in that the letter appeared to be an attempt to put the prisoner's correspondent in contact with the leader of a gang known as the Traveling Vice Lords. The mail was being monitored because the prisoner was believed to have a significant role in that gang. Release of the letter would have undermined the prisoner's rehabilitation and signaled that the prison tolerated gang activity, as well as increasing tensions in the prison between members of that gang and unaffiliated prisoners, the defendants contended. The prisoner was subsequently sanctioned after a hearing for writing the letter, and the letter then classified as contraband and destroyed. These actions were reasonable restrictions on the prisoner's First Amendment rights. Williams v. Mierzejewski, #10-2022, 2010 U.S. App. Lexis 24372 (Unpub. 7th Cir.).

Medical Care

     Claims against a physician's assistant for deliberate indifference to a prisoner's serious medical needs were properly rejected, as the prisoner's assertion that the defendant misdiagnosed her condition, failing to determine that her knee injury from a fall was serious, involving fractures, and failing to order x-rays merely stated a possible ordinary medical malpractice (negligence) claim, which was insufficient for a federal civil rights lawsuit. Grose v. Correctional Medical Services, Inc., #09-2168, 2010 U.S. App. Lexis 23907 (Unpub. 6th Cir.).

     A federal prisoner sentenced to death for killing an officer, had a bullet lodged in his hip from gunfire during his arrest. He sued prison personnel for failing to remove the bullet, which he claimed causes him dermatitis (rashes). Medical personnel, however, examined him and found that the removal of the bullet was not medically indicated and its presence did not cause any pain or restrict any movement. He was provided with treatment for his dermatitis numerous times, refuting any claim of deliberate indifference. Any negligence in failing to remove the bullet was insufficient for a federal civil rights claim. Barrett v. Marberry, #10-1959, 2010 U.S. App. Lexis 24570 (Unpub. 7th Cir.).

     A prisoner sued a prison doctor, a physician's assistant, and a private company involved in providing inmate health care, claiming that they provided inadequate care for an "inflamed and ruptured disc" in his back that resulted in numbness in his legs and toes. He claimed that the doctor "avoided" him for four months, and then provided him with ineffective pain medication, and that the physician's assistant, during three or four sick calls, wrongly concluded that there was nothing wrong with his back.

     Claims against the private company were properly dismissed, as the prisoner did not assert that it had any policy, practice, or custom that led to his alleged injury or any direct involvement in the alleged misconduct. The prisoner failed to support his claim of deliberate indifference against the prison doctor, as there was no support for his claim that the doctor was avoiding him, and he was treated by the doctor after he threw out his back. There was also no evidence that the doctor purposefully prescribed ineffective pain medication. The failure of the physician's assistance to find anything wrong with the plaintiff's back was, at most, negligence, which is insufficient for a federal civil rights claim. Weigher v. Prison Health Services, #10-3089, 2010 U.S. App. Lexis 24129 (Unpub. 3rd Cir.).

     A New York prisoner claimed that he was provided with inadequate medical care from 1988 t0 2008. He argued that medical reports he obtained in 2008 showed that he suffered from a chronic urinary infection that was not properly diagnosed or treated until then. He based this, however, solely on his own analysis of those records. A federal appeals court found that, as the prisoner was not a doctor, this was insufficient to establish a claim for deliberate indifference to an alleged serious medical need.

     Trained medical personnel, relying on the same records and reports, concluded that the prisoner had been suffering from no such infection, and when later reports did, in fact, indicate an infection, they provided antibiotic treatment. Further, any prior failure to diagnose an infection, assuming there was one, would have constituted, at most, a negligent misdiagnosis, rather than the deliberate indifference required for a federal civil rights case. Whitfield v. O'Connell, #10-1398, 2010 U.S. App. Lexis 23968 (Unpub. 2nd Cir.).

Medical Care: Dental

     A prisoner claimed that prison dentists acted with deliberate indifference in delaying extraction of two infected teeth and in failing to prescribe him pain medication. A nurse was also accused of improperly failing to provide him with pain medication. The court found that any delay in the extractions was, at most, negligent, an inadequate basis for a federal civil rights claim, as was the failure to prescribe pain medication, particularly as the prisoner had been prescribed pain medications for other ailments while also seeking dental treatment. The nurse, being unable to herself write prescriptions, could not be found deliberately indifferent for failing to provide him with the medication. Smith v. Harris, #10-30176, 2010 U.S. App. Lexis 23703 (Unpub. 5th Cir.).

Prisoner Assault: By Inmate

     While incarcerated in Pennsylvania, a prisoner was assaulted by his former cellmate, suffering injuries to his knee, teeth, nose, and the top of his head. He sued, claiming that prison personnel knew of the cellmate's violent propensities, but disregarded the serious risk of harm in placing them together in the same cell. The court found no evidence of inadequate medical care for the prisoner's injuries on the part of a prison nurse, and upheld summary judgment for other prison personnel on failure to protect claims. There was no evidence that they had any reason to know that there was a substantial risk of harm to the plaintiff prisoner from his former cellmate. Additionally, when they learned of the assault, they moved his attacker to a different cellblock, and directed the plaintiff to prison medical staff for treatment. Everett v. Donate, #10-2197, 2010 U.S. App. Lexis 21302 (Unpub. 3rd Cir.).

Prisoner Death/Injury

     After being arrested on a DUI, a Pennsylvania man agreed to voluntary participation in a community service disposition program involving manual labor. He was assigned to do construction work, which he said he preferred to picking up trash. He did not indicate that he suffered from any medical condition or restriction, and, if he had, he would have been required to submit medical documentation to make sure his job assignment was appropriate. The 59-year-old man reported for work in hot weather. He was taking cardiac medication to lower his blood pressure and control his cholesterol. On the second day, he collapsed and died from a heart attack that occurred as a consequence of arteriosclerotic coronary artery disease, with a history of hypertension, in association with exertion.

     A federal civil rights lawsuit against the county by his wife claimed that it violated his rights by failing to properly medically screen him for his work assignment, among other things. A federal appeals court upheld summary judgment for the county, rejecting liability on a state-created danger theory, particularly as the county had no reason to know of the decedent's medical condition. There was no conduct that shocked the conscience, and no policy or custom of the county that caused the death. Marvel v. County of Delaware, #09-2838, 2010 U.S. App. Lexis 21234 (Unpub. 3rd Cir.).

Prisoner Discipline

     A prisoner claimed that prison officials deprived him of due process in connection with a disciplinary hearing concerning his killing of another inmate. Official capacity claims were barred by the Eleventh Amendment. Individual capacity claims against a prison investigator assigned to help him were also rejected on appeal. The prisoner claimed that the investigator, to whom he had given written interrogatories for several witnesses, had violated his due process rights by delaying his access to the responses until after the disciplinary hearing. The appeals court found that the minimal due process available for a disciplinary hearing does not include access to interrogatory responses. Additionally, the prisoner had no due-process right to confront or cross-examine witnesses, "and was not even entitled to a hearing investigator." Thompson v. Stapleton, #09-1504, 2010 U.S. App. Lexis 25702 (Unpub. 6th Cir.).

Prisoner Suicide

     A pretrial detainee committed suicide on the third day of his confinement, and his estate sued the county and various jail and health care personnel and entities for failure to prevent the suicide. The county, jail warden, and correctional officers moved for summary judgment, and the trial court granted the motion as to all defendants, erroneously also including the independent private contractor providing medical services at the jail and its defendant employees, despite the fact that they had not joined in the summary judgment motion. When informed of this, the trial judge nevertheless upheld the summary judgment for these defendants, ruling that as private parties they did not act under color of state law as required for federal civil rights claims, and declining to exercise jurisdiction over state law claims against them.

     A federal appeals court held that the trial judge should have given the plaintiff notice and an opportunity to be heard before ruling that the private defendants did not act under color of state law. The plaintiff could have argued that the private defendants acted under color of state law, and acted with deliberate indifference to a known risk of suicide. Further proceedings were therefore required. It is well settled, the appeals court noted, that private persons and entities sometimes act under color of state law. Donnell v. Correctional Health Services, Inc., #10-1211, 2010 U.S. App. Lexis 25815 (Unpub. 3rd Cir.).

Procedural: Discovery

     A former prisoner sued a prison doctor, claiming that he knew he had been diagnosed with schizophrenia, but had refused to provide him with antipsychotic medication, resulting in him hearing voices for six months while incarcerated. The trial court appointed a lawyer to represent him, after he stated that his mental impairment made it difficult to present his case. Despite this, the plaintiff's responses to discovery requests were late, incomplete, and vague, and he failed to provide medical records within his control. In response to a question about his medical treatment since 2000, the plaintiff stated that he had been hospitalized about 150 times, but offered no details about where or when, failing to name any hospitals or physicians.

     A federal appeals court upheld the dismissal of the lawsuit as a sanction for failing to comply with discovery requests. The court below had taken the prisoner's mental condition into account in extending deadlines and appointing a lawyer to assist him. Despite these accommodations, the plaintiff failed to cure defects in his discovery responses, and failed to appear in court when his presence was required by court order. Watkins v. Nielsen, #10-2366, 2010 U.S. App. Lexis 25775 (Unpub. 7th Cir.).

Prisoner Transfer

     A federal appeals court reinstated a federal prisoner's civil rights lawsuit over his transfer to a lock-down unit in another prison, since his claim that prison staff were being abusive in retaliation for his protected conduct of filing grievances was "at least plausible," and therefore should not have been dismissed as frivolous. Transfer to a more restrictive environment with fewer privileges would deter a "person of ordinary firmness" from exercising his right to file grievances, so the plaintiff adequately alleged that the transfer was retaliatory, and violated his First Amendment rights. Hill v. Lappin, #09-5575, 2010 U.S. App. Lexis 26261 (6th Cir.).

Privacy

     Inmates at a number of federal prisons are allowed to have themselves photographed, either by themselves or with visitors, with the photos paid for by the Inmate Trust fund. A number of them sued federal prison authorities, claiming that a secret practice of retaining duplicate prints of such photos for security related purposes (and charging the cost of these prints to the Inmate Trust Fund) was improper and violated the inmates' rights under the Privacy Act, 5 U.S.C. Sec. 552a. The plaintiffs failed to rebut government affidavits stating that prison personnel did not intentionally or willfully violate the Privacy Act, and that the retained photos were only used for legitimate law enforcement purposes. Issues concerning the use of funds from the Inmate Trust Account for the photo prints were now moot since the plaintiffs were no longer in custody. Maydak v. U.S., #07-5352, 2010 U.S. App. Lexis 26283 (D.C. Cir.).

Religion

     A prisoner claimed that his right to religious freedom was violated by a prison's failure to provide him with kosher meals as soon as he demanded them. A federal appeals court, however, found that the record reflected the fact that the prison began serving him kosher meals less than two weeks after his initial request, and that the prison was entitled to assess whether the prisoner's request was motivated by sincere religious belief, justifying the slight delay. As for the prisoner's complaint that the kosher meals provided were both often cold and "lacked variety," the court found that these facts, if true, did not violate the prisoner's rights. Tapp v. Proto, #10-3059, 2010 U.S. App. Lexis 25385 (Unpub. 3rd Cir.).

     An African-American Muslim prisoner was told by one correctional officer that he could not enter a gym carrying the two books he was holding, a Quran and a book on the basics of Islam. As he walked back towards his housing unit to return the books, another officer allegedly knocked the books out of his hand, slammed him to the ground, and handcuffed him. The first officer filed misconduct charges against the prisoner, asserting that he disobeyed orders to stop walking away, which was why the second officer responded with force. As a punishment, the prisoner had to spend time in a restricted housing unit.

     A federal appeals court rejected the prisoner's claim that the second officer subjected him to racial and religious discrimination, and used excessive force against him. Rejecting these claims, the court noted that the second officer had not been in a position to see what books it was the prisoner was carrying, and that there was no indication of racial or religious animosity in his actions. The force used was minimal, and only caused abrasions. Washam v. Klopotoski, #10-3291, 2010 U.S. App. Lexis 25272 (Unpub. 3rd Cir.).

Retaliation

     A Louisiana prisoner claimed that correctional officers sprayed him with an excessive amount of chemical irritant in retaliation for his successful appeal of a prior unrelated prison disciplinary conviction. A federal appeals court found that he had "alleged a chronology of events from which retaliation may be plausibly inferred," given the identity of a captain involved both in the filing of the disciplinary charges and in the excessive force incident two weeks after his successful appeal of the disciplinary conviction. The prisoner's retaliation and excessive force claim were both reinstated on appeal. Williams v. Hinyard, #09-30396, 2010 U.S. App. Lexis 19212 (Unpub. 5th Cir.).

     A federal appeals court concluded that the plaintiff prisoner failed to produce any independent evidence that correctional employees intentionally discarded or destroyed his personal property in retaliation for him filing a complaint against a corrections officer at the facility in which he was incarcerated. "In contrast, the defendants presented substantial evidence" that his property was not in fact destroyed, or, "even if it was, that the specific defendants whom he named in his complaint had neither the means nor the opportunity to do so." The prisoner also failed to show that the defendants intentionally discarded or destroyed his grievances as a means of retaliation; particularly as he successfully filed grievances during the period in which he alleged the defendants retaliated against him. Melendez v. Wilson, #09-0722, 2010 U.S. App. Lexis 20021 (Unpub. 2nd Cir.).

Segregation: Administrative

     While two major misconduct tickets were pending against him, a prison was placed in administrative segregation, and then transferred to a higher security facility, where he was again placed in administrative segregation. He was subsequently found guilty of both misconduct charges, and placed in the general population at his new facility. He sued, claiming that the administrative segregation and transfer, neither of which had been preceded by a hearing, violated his due process rights.

     Upholding the dismissal of these claims, a federal appeals court held that the prisoner failed to show that he had a constitutionally protected liberty interest with regard to either the administrative segregation or the transfer. The segregation did not impose an "atypical and significant' hardship in relation to the ordinary incidents of prison life." As for the transfer, the prisoner had no right to be confined in any particular prison. Joseph v. Curtin, #09-1616, 2010 U.S. App. Lexis 24380 (Unpub. 6th Cir.).

Strip Search: Prisoners

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

     Update: In Byrd v. Maricopa County Sheriff's Dep't, #07-16640, 583 F.3d 673 (9th Cir., 2009), a three-judge federal appeals panel ruled that a pretrial detainee failed to show that there was any discriminatory intent towards male detainees in subjecting him to a partial strip search and pat down of his groin area by a female cadet officer despite the nearby availability of male detention officers. The detainee was clad only in pink boxer shorts made of very thin material. The search was held to be reasonably related to legitimate objectives and there was no showing of deliberate indifference to any pain the search might have caused because of its cross-gender aspect. Under these circumstances, the court also found, the search did not constitute "punishment." And it held that the search was reasonable under the Fourth Amendment.

     The U.S. Court of Appeals for the Ninth Circuit, rehearing the case en banc, by a 6-5 vote overturned this ruling in part, finding that the scope of the intrusion in conducting this non-emergency cross-gender strip search of the detainee's genital area "far exceeded" the scope of searches previously allowed by the court, and that the search was unreasonable as a matter of law. The court majority also focused on the presence of onlookers and the fact that one of them videotaped the searches.

     The court still rejected equal protection claims based on the fact that such non-emergency cross-gender strip searches were allegedly only conducted on males and not on female detainees and prisoners. It stated that such an equal protection claim could have been further pursued, but that essential elements of such a claim were not fully developed. The dissenting judges would not have characterized the search that occurred as a strip search at all, calling it a pat-down search in light of the fact that the detainee kept on his boxer shorts. Byrd v. Maricopa County Sheriff's Dept., #07-16640, 2011 U.S. App. Lexis 86 (9th Cir. en banc.).

Work/Education/Recreation Programs

     A prisoner claimed that requiring him to work in the prison dining hall without his consent violated due process and constituted involuntary servitude in violation of the Thirteenth Amendment. He refused to report to work, was found guilty of failing to carry out a work assignment in several disciplinary actions and sentenced each time to 30 days without telephone, visitation, and store privileges. He claimed that prison regulations and state law created a protected liberty interest in being free from involuntary work assignments and that he was wrongfully disciplined for refusing to comply with the assignment. No Thirteenth Amendment violation was shown, as the prisoner "does not challenge the validity of his conviction or allege facts that amount to unconstitutional involuntary servitude." The punishments imposed did not amount to "atypical" deprivations that could implicate a liberty interest, and any violation of state law, standing alone, was not a violation of federal civil rights. Ballard v. Pierce, #10-60276, 2010 U.S. App. Lexis 23993 (Unpub. 5th Cir.).

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     Mass Incarceration: The American Prospect magazine (Jan.-Feb. 2011) has published a special section on "Mass Incarceration in America." Funded by the Annie E. Casey Foundation, the report includes articles on such subjects as community policing, juvenile courts, and "bipartisan justice."

     Prison Oversight: A special issue of the Pace Law Review, Volume 30, Issue 5 (2010) (Fall 2010), "Opening Up a Closed World: A Sourcebook on Prison Oversight" features a comprehensive look at the oversight of prisons, including 21 articles from leading academics, national and international corrections experts, and prisoners' rights and human rights lawyers.

     Statistics: "Correctional Populations in the United States, 2009" by Lauren Glaze, (December 21, 2010 NCJ 231681). Presents summary data on the number of adults under some form of correctional supervision in the United States at yearend 2009. Correctional supervision includes adults supervised in the community on probation or parole and those incarcerated in prison or local jails. The report provides a comparison between the change in the correctional population observed since 2000 and the changes observed during the 1980s and 1990s, which illustrates the slowing of growth in the population during each decade. It also includes the number of men and women under each correctional status and trend analysis of men and women under correctional supervision since 1990.

     Statistics: "Prisoners in 2009," by William J. Sabol, Ph.D., and Heather C. West, Ph.D., (December 21, 2010 NCJ 231675). This annual report presents data on prisoners under jurisdiction of federal or state correctional authorities on December 31, 2009, collected from the National Prisoner Statistics series. It compares changes in the prison population during 2009 to changes from yearend 2000 through yearend 2008, and explores factors leading to a decline in the state prison population. Findings cover data on decreasing growth in state and federal prisons through declining admissions, sentence lengths, and imprisonment rates for prisoners sentenced to more than 1 year by jurisdiction; the number of males and females in prison; age, race, and gender distributions; and custody incarceration rates. Highlights include the following: The U.S. prison population grew at its slowest rate (0.2%) since 2000, reaching 1,613,740 prisoners at yearend 2009. Prison admissions (down 2.5%) and prison releases (up 2.2%) converged from 2006 through 2009, slowing the growth of the nation's prison population. From 2000 to 2008, the state prison population increased by 159,200 prisoners, and violent offenders accounted for 60% of this increase. The number of drug offenders in state prisons declined by 12,400 over this period.

Reference:

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

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