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Access to Courts/Legal Info

     An Illinois prisoner claimed that prison authorities violated his rights, including a right of access to the courts, by subjecting him to discipline for violation of a rule barring him from possession of other inmates' property, specifically their legal materials. He contended that this violated a general First Amendment right to function as a "jailhouse lawyer," which he was prevented from doing, as his legal papers, books, and administrative materials were confiscated. The right of access to the courts "does not confer unconditional privileges to retain legal documents belonging to others. The right of access to courts is violated only when a prisoner is denied access and suffers actual injury as a result." Since the prisoner could not show that any such injury occurred, his claim was rejected. Green v. Walker, #10-1536, 2010 U.S. App. Lexis 21787 (Unpub. 7th Cir.).

Attorneys' Fees

     Prisoners who prevailed in a settlement of a lawsuit over prison conditions, specifically dental care, were entitled to an award of attorneys' fees and paralegal fees under 42 U.S.C. Sec. 1988, and they were limited by the Prison Litigation Reform Act to 150% of the hourly rate established for court appointed counsel under 18 U.S.C. Sec. 3006A. The court held that the same cap applicable to attorneys' fees applies to separately billed paralegal fees. It therefore upheld a trial court order requiring the defendants to pay the plaintiffs' paralegal expenses at a rate of $169.50 per hour, rather than the $82.50 per hour prison officials had argued they should pay. Perez v. Cate, #09-17185, 2011 U.S. App. Lexis 643 (9th Cir.).

Freedom of Information

     A newspaper reporting on prisoner legal controversies sought the disclosure, under the federal Freedom of Information Act, of a video showing the aftermath of a prison murder and autopsy photos of the victim, among other materials. A federal appeals court upheld the withholding of some of the material sought, as the video and photos, if disclosed, would amount to an unjustified invasion of the privacy of the murder victim's family. Prison Legal News v. Exec. Offc. for U.S. Attys., #09-1511, 2011 U.S. App. Lexis 499 (10th Cir.).

Mail

     The publisher of "Crime, Justice & America," which addresses criminal justice topics of interest to inmates, challenged mail policies at two California county jails, under which officials refused to distribute to prisoners unsolicited copies of the publication sent through the mail. Reversing summary judgment for the defendants, a federal appeals court found that there were unresolved material questions of fact as to whether the distribution of the mailed materials would have required the defendants to expend "significant" additional resources. Hrdlicka v. Reniff, #09-15768, 2011 U.S. App. Lexis 1914 (9th Cir.).

Medical Care

     A prison medical director was properly held liable for $20,000 in compensatory and $20,000 in punitive damages to the estate of an inmate who died of allegedly untreated Hepatitis C. Summary judgment was properly entered on the claims of three other plaintiffs, as those prisoners could not show that they suffered specific harm from a treatment protocol for hepatitis C to prisoners who could complete a two-year course of treatment while still incarcerated. The deceased prisoner's Eighth Amendment rights had been violated, since his death from liver cirrhosis resulted, and the treatment protocol did not take his individual condition into account. A shorter than 48 week treatment would have been appropriate for his condition. Roe v. Elyea, #09-1723, 2011 U.S. App. Lexis 1781 (7th Cir.).

     Editor's note: The $20,000 in punitive damages was reduced, by the trial court, from the jury's $2 million punitive damages award.

     The trial court acted erroneously in granting the defendant's motion for summary judgment in a Federal Tort Claims Act lawsuit over the prison medical staff's failure to discontinue the plaintiff prisoner's use of aspirin at least five days before surgery based on the plaintiff's failure to submit an expert's report. The court ruled that it was "obvious" that the staff should have told the prisoner that aspirin is a blood thinner and that failure to stop taking it before surgery could lead to serious internal bleeding. An expert's report was not needed, especially as there was a surgeon's medical report indicating that the failure to discontinue the use of aspirin had caused post-surgery complications. Gipson v. U.S., #09-2756, 2011 U.S. App. Lexis 1573 (7th Cir.).

     A Wisconsin inmate claimed that prison medical personnel and administrators acted with deliberate indifference to his allegedly untreated nose condition and unhealed cuts, sores, and bruises. Upholding the dismissal of the lawsuit, the appeals court found no indication that the defendants were aware of, yet disregarded, a serious medical condition. The prisoner's complaint itself indicated that medical personnel spent a good deal of time giving him medical treatment on multiple occasions, although they concluded, after diagnosing his nose and skin conditions, that they "merited limited medical treatment." Any delay in treating the "minor maladies" that the plaintiff claimed resulted from the medical staff's choice to treat other maladies first. "This conclusion is sound because the medical personnel had no reason to believe that anything serious would arise from temporarily delaying treatment of a congested nose and skin condition." Slater v. Lemens, #10-1409, 2010 U.S. App. Lexis 23307 (Unpub. 7th Cir.).

Parole

     The U.S. Supreme Court overturned a federal appeals court ruling ordering California officials to grant parole to an inmate convicted of attempted murder. The Court held that "there is no right under the federal Constitution to be conditionally released before the expiration of a valid sentence, and the states are under no duty to offer parole to their prisoners." The "responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business." Swarthout v. Cooke, #10–333, 2011 U.S. Lexis 486

Prison and Jail Conditions: General

     A California prisoner claimed that night light in his cell caused him insomnia in violation of his Eighth Amendment rights. Rejecting this claim, a federal appeals court noted that there was undisputed medical evidence that the amount of illumination coming from the night light in the cell would not cause insomnia. Further, there were medical records indicating that the plaintiff "had complained of insomnia, stress, and depression before the new night light policy was implemented, and continued to complain of insomnia and other symptoms after he was transferred to a prison that did not have night lights." Walker v. Woodford, #08-56676, 2010 U.S. App. Lexis 18210 (Unpub. 9th Cir.).

Prisoner Assault: By Inmate

     After a detainee in a county jail told a deputy that he was having trouble with other prisoners, she told him to move his mattress into a day room attached to the cellblock, where he would be directly in her line of sight at all times. Despite this, he was sexually assaulted in the afternoon after this deputy's shift ended. The deputy who relieved her did not see the attack. Jail officials were unable to identify who staged the attack, partially because the victim's account of the incident was inconsistent with the physical evidence.

     Upholding summary judgment for the county in the detainee's lawsuit, a federal appeals court found no evidence of deliberate indifference by any jail personnel, and any failure to observe or prevent the attack was, at most, negligence, which is inadequate for a federal civil rights claim. The county had taken significant steps to try to protect inmate safety, including moving prisoners who face special threats to separate cellblocks, and providing for deputies to be able to directly observe nearly the entire cellblock. There was no evidence that any county custom or policy caused the attack. Brown v. Harris County, Texas, #10-20213, 2010 U.S. App. Lexis 25569 (Unpub. 9th Cir.).

     A prisoner who was attacked by another inmate sufficiently raised a factual issue as to whether a defendant officer was deliberately indifferent for failing to recommend that he be transferred after he allegedly told her that he wanted to be transferred because he feared serious, imminent injury. Because the inmate who made threatening statements about the plaintiff allegedly made conflicting statements concerning his intentions during the officer's investigation, a reasonable jury could find her reliance on his statements as a basis for not recommending a transfer to be unreasonable. Because of this, she was not entitled to qualified immunity. Burling v. Simon, #10-40047, 2010 U.S. App. Lexis 26418 (Unpub. 5th Cir.).

Prisoner Assault: By Officers

     A Texas prisoner claimed that he was complying with an officer's orders to face the wall and put his hands behind his back when the officer repeatedly poked him in the face and left eye, causing him momentary blindness and cuts and abrasions around his eye, and eventually causing the eye to become infected, swollen, and discolored. The appeals court upheld summary judgment for the officer on the basis of qualified immunity as the plaintiff prisoner had not presented sufficient evidence that his injuries were objectively "harmful enough" to amount to a constitutional violation. Mosley v. White, #09-41091, 2010 U.S. App. Lexis 25398 (Unpub. 5th Cir.).

     A Texas prisoner presented claims of excessive force against two officers that were "plausible." He alleged that after he refused to remove his arm from a cell food slot when he was denied a meal that they threatened him with a beating and threatened to break his arm. After he withdrew his arm, they allegedly returned with a team who sprayed a chemical agent into his cell. He again thrust his arm through the slot, and one officer allegedly used excessive force, twisting and snapping his finger, causing it to break. The court found that, if the facts were as alleged, there was no showing that the use of the chemical spray was necessary, or that it was justified to allegedly intentionally break his finger. Dismissal of the lawsuit, therefore, was premature. Moss v. Brown, #10-10207, 2010 U.S. App. Lexis 25570 (Unpub. 5th Cir.).

     An officer used force in a good-faith attempt to restore discipline, rather than sadistically and maliciously in responding to an inmate who used profanity and provoked a verbal altercation. The two men bumped chests, and the officer bent the prisoner over a table and punched him in the nose when he continued to resist as other inmates started to circle around. The officer required the assistance of a co-worker to subdue the prisoner. The officer was aware of the prisoner's nosebleed, but did not believe that it was a serious medical condition requiring immediate treatment. McClyde v. Jackson, #10-20139, 2010 U.S. App. Lexis 26076 (Unpub. 5th Cir.).

Prisoner Classification

     A prisoner argued that he was improperly classified as a member of a Security Threat Group in violation of his constitutional rights. Rejecting this argument, a federal appeals court noted that a "prisoner has no liberty interest in his custodial classification." His resulting confinement in administrative segregation was not so restrictive as to implicate a liberty interest. Flores v. Livingston, #10-10280, 2010 U.S. App. Lexis 26304 (Unpub. 5th Cir.).

Prisoner Death/Injury

     A federal judge has denied a county's motion to dismiss a federal civil rights lawsuit by a pretrial detainee at its jail seeking damages for injuries he suffered when a rat allegedly came out of a hole in his mattress and bit his penis, causing him sexual dysfunction and emotional distress. The plaintiff argued that the county acted with "deliberate indifference to his health and safety in failing to adequately protect him from rodents." There were allegedly eleven prisoner complaints about rodents in the two years prior to the incident, as well as 50 prisoners signing a petition requesting action against the presence of rodents, and the plaintiff claimed that adequate corrective measures were not taken. The trial judge agreed that the allegations were sufficient to survive summary judgment. Solomon v. Nassau County, #08-CV-703, U.S. Dist. Ct. (E.D.N.Y. Jan. 7, 2011).

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

     A pretrial detainee in a county jail contracted Methicillin-Resistant Staphylococcus Aureus (“MRSA”), a staph infection resistant to usual penicillin-type antibiotics. A jury awarded him damages. Upholding this result and a finding of county liability, a federal appeals court found that there was evidence that the county knew of the presence of a staph infection in the jail, including an infection rate as high as 20%, yet failed to adopt known measures that would have combated it, such as installing hand washing and disinfecting stations and using alcohol-based hand sanitizers, and continued to house detainees in conditions leading to infection. Duvall v. Dallas Cty., #09-10660, 2011 U.S. App. Lexis 660 (5th Cir.).

Prisoner Discipline

     An intermediate New Jersey appeals court has upheld the disciplining of a prisoner for possession of a weapon, sharpened instrument, or unauthorized tool, after he was observed at his welding shop work assignment using a grinder to hone a metal object to a point. While the prisoner claimed that the three and a half inch metal object was not a weapon, but for the purpose of marking his initials for identification into his metal shop project, "the regulation charged does not require proof that the inmate actually intended to use the prohibited item as a weapon. Possession in itself of an item that is a sharpened instrument or an unauthorized tool is a violation." Since he admitted possessing the object, his excuse for doing so did not alleviate the "dangerous activity of fabricating such a tool or instrument without express authorization of prison officials." Jimenez v. N.J. Dept. of Corrections, #A-5965-08T3, 2010 N.J. Super. Unpub. Lexis 2103.

Retaliation

     A prisoner failed to show that an officer retaliated against him for filing a grievance by confiscating his CD player, when the officer offered undisputed evidence that he did not know of the inmate's filed grievance at the time. Another officer, who subsequently confiscated his CDs and lens cleaner was also entitled to summary judgment, as the prisoner failed to refute the argument that this action was taken in reasonable pursuit of enforcement of a prohibition against inmates owning CDs if they do not possess a CD player. Rhodes v. Robinson, #08-16363, 2010 U.S. App. Lexis 18791 (Unpub. 9th Cir.).

     An Arkansas prisoner claimed that an officer was sexually harassing him and issued him false disciplinary citations in retaliation for his filing of grievances about the harassment. After an evidentiary hearing, the trial court dismissed the retaliation lawsuit, since the prisoner, following each instance of allegedly retaliatory discipline, was found guilty at a disciplinary hearing. An inmate does not state a retaliation claim where the discipline was imposed for an actual violation of prison rules. Tatum v. Harmon, #10-1153, 2010 U.S. App. Lexis 24352 (Unpub. 8th Cir.).

     A prisoner housed in a cell with a window claimed that an officer refused, on five separate occasions, to turn on the lights in his cell at 7 a.m. as required by department policy, depriving him of artificial lighting in his cell during daylight hours for a total of eight hours over a seven-month period. After he filed grievances against the officer for this, the officer allegedly retaliated by calling the prisoner a "snitch" in front of other inmates, and filed a false disciplinary report against him.

     A federal appeals court found that the trial court erroneously dismissed the retaliation claim because the prisoner was not actually disciplined, as the retaliatory filing of false disciplinary charges is enough to be the basis for a retaliation claim. Falsely labeling the plaintiff a "snitch" in front of other prisoners could subject him to the risk of substantial harm at the hands of other prisoners, and supported both First Amendment and Eighth Amendment claims. Claims concerning the failure to turn on cell lights, which the prisoner claimed impeded his ability to do legal work, in violation of his First Amendment rights, were rejected. Williams v. Horner, #09-2927, 2010 U.S. App. Lexis 24463 (Unpub. 8th Cir.).

     Editor's note: A judge dissenting in part argued that the majority, in allowing the pursuit of the retaliation claim merely on the basis of a retaliatory filing of false disciplinary charges failed to impose a necessary condition that the retaliatory action be one that would chill a person of ordinary firmness from exercising his First Amendment rights, and noted that in this case, the warden dismissed the disciplinary charge against the prisoner.

Segregation: Disciplinary

     A prisoner who received 132 disciplinary tickets for violating various rules sued over his placement in disciplinary segregation for a total of 22 months, and also claimed that his due process rights were violated in a disciplinary proceeding because he had been denied the right to call a witness. An intermediate Illinois appeals court ruled that the disciplinary segregation had not implicated any liberty interest the prisoner had under federal law. He was not subject to any "atypical and significant hardship" by his placement into disciplinary segregation compared to the general conditions in the super-maximum security prison where he was already confined. It also found that the denial of his request to call a witness did not deprive him of due process when he refused to use a required witness request form, and also sought to introduce irrelevant testimony about the alleged homosexual orientation of a guard. Taylor v. Frey, #5-08-0210, 2011 Ill. App. Lexis 28 (5th Dist.).

Sexual Assault

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

     A former prisoner in an Ohio facility claimed that a correctional officer had sexually assaulted her on two consecutive nights, and sued two superintending prison officers, a case manager on her living unit, and a prison investigator. She claimed that the case manager failed to take any action to prevent the second assault after she reported the first one, and that the investigator retaliated against her for her accusations by placing her, shackled and handcuffed, in solitary confinement in a cell without adequate heat, clothing, bedding, or blankets. The trial court denied the defendants summary judgment on the basis of qualified immunity, finding that there were disputed material issues of fact, and the defendants did not appeal that ruling.

     After a full trial, a jury awarded the plaintiff $350,000 in compensatory and punitive damages against the case manager and $275,000 against the investigator. The defendants did not then file a motion seeking judgment as a matter of law after the verdict, nor did they seek a new trial. Instead, they argued, on appeal, that the trial court should have granted their motion for summary judgment on the basis of qualified immunity. A federal appeals court agreed, and reversed the jury's verdict.

     The U.S. Supreme Court disagreed, reversing the appeals court, and holding that a party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. There was no "purely legal" issue of qualified immunity preserved for appeal, as the dispute was not over what the pre-existing law was, but instead what the facts were--such as whether the case manager was adequately informed, after the first attack, of the assailant's identity. The defendants could not argue, on appeal, that the plaintiff had not proven her case, as they failed to raise an issue of the sufficiency of the evidence by a post-judgment motion for judgment as a matter of law. Ortiz v. Jordan, #09–737, 2011 U.S. Lexis 915

Visitation

     A California state statute prohibits visitation between persons convicted of sexually molesting children and the children they molest. An intermediate California appeals court has ruled that the plain language of the statute only applies to child victims of offenses for which a defendant is sentenced to prison. In this case, the prisoner pled guilty to sex offenses against two girls, and sex charges concerning a third girl, as well as non-sex charges concerning two other girls, were dismissed. The trial court at sentencing, however, ordered that none of the five girls be allowed to visit the prisoner. The appeals court ordered that the no visitation order be modified to eliminate the other three girls: two of them, as the prisoner had not been accused of any sex offenses against them, and the third, as the prisoner had not be sent to prison on a conviction of a sex offense against her, although he did admit duty the entering of his plea that she was a victim entitled to restitution. People v. Ochoa, #C065356, 2011 Cal. App. Lexis 144 (3rd Dist.).

Work/Education/Recreation Programs

     A prisoner's claim that he was compelled to work outdoors uprooting tree stumps in freezing cold weather without safety instructions, protective gear, or gloves was sufficient to state a claim for violation of the Eighth Amendment, requiring the reversal of the trial court's dismissal of the lawsuit. The court also reinstated the prisoner's claim that he was penalized for questioning the work assignment and making preparations to sue, in violation of his First Amendment rights. Smith v. Peters, #10-1013, 2011 U.S. App. Lexis 955 (7th Cir.).

 •Return to the Contents menu.

     Children of Prisoners: More than 1.7 million American children have an incarcerated parent, according to "Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration," a January 12, 2011 report by Justice Strategies, a nonprofit research group. The estimated risk of parental imprisonment for white children by the age of 14 is one in 25, while for black children it is one in four by the same age.

     Identity Theft: President Obama has signed into law the "Social Security Protection Act of 2011," aimed at reducing identity theft by prohibiting government agencies from printing social security numbers on checks and prohibiting prison inmates' access to social security numbers.

    Prison Sexual Abuse: The U.S. Department of Justice has released a proposed rule to prevent and respond to sexual abuse in incarceration facilities pursuant to the Prison Rape Elimination Act (PREA). The National Standards to Prevent, Detect, and Respond to Prison Rape will apply to (1) adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities; and (4) lockups (i.e., temporary holding facilities). A 60-day period for public comment will follow the publishing of the rule in the Federal Register. Written comments and electronic comments must be sent on or before 60 days from the date of publication in the Federal Register. A final rule is expected to be published by the end of the year. (January 26, 2011).

     Prison Sexual Abuse: Sexual Victimization Reported by Adult Correctional Authorities, 2007-2008 by Allen J. Beck, Ph.D., and Paul Guerino (January 26, 2011 NCJ 231172). Examines 2007 and 2008 data from the Survey of Sexual Violence (SSV). Conducted since 2004, the SSV is an annual collection of official records on incidents of inmate-on-inmate and staff-on-inmate sexual victimization. This report presents counts of nonconsensual sexual acts, abusive sexual contacts, staff sexual misconduct, and staff sexual harassment reported to correctional authorities in adult prisons, jails, and other adult correctional facilities. Appendix tables include counts of sexual victimization, by type, for the Federal Bureau of Prisons, all state systems, and surveyed jail jurisdictions. An in-depth examination of substantiated incidents is also presented, covering the number and characteristics of victims and perpetrators, location, time of day, nature of the injuries, impact on the victims, and sanctions imposed on the perpetrators. Highlights include the following: Correctional administrators reported 7,444 allegations of sexual victimization in 2008 and 7,374 allegations in 2007. About 54% of substantiated incidents of sexual victimization involved only inmates, while 46% of substantiated incidents involved staff with inmates. Female inmates were disproportionately victimized by both other inmates and staff in federal and state prisons, as well as local jails.

Reference:

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

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