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Death Penalty

     Death row inmates failed to show that Arizona's three-drug lethal injection execution protocol violated the Eighth Amendment. They could not prove that it was sure or very likely to cause serious pain and suffering. Dickens v. Brewer, #09-16539, 2011 U.S. App. Lexis 2543 (9th Cir.).

DNA

     A man sentenced to death after being convicted of murdering his girlfriend sought to challenge his conviction in Texas state court by seeking DNA testing of various untested evidence from the crime scene, including knives, an axe handle, vaginal swabs, fingernail clippings, and certain hair samples. State courts rejected his plea for DNA testing, finding that he had not made a required showing that he "would not have been convicted if exculpatory results had been obtained through DNA testing."

     He then filed a federal civil rights lawsuit against the prosecutor, seeking injunctive relief requiring the DNA tests. By a 6-3 vote, the U.S, Supreme Court held that claims concerning the right to DNA testing could be asserted not only in habeas corpus proceedings, but also in federal civil rights lawsuits. Success in having the testing done would not necessarily imply the invalidity of the plaintiff's conviction. The Court therefore ordered further proceedings on the merits of the plaintiff's claim that denying him the DNA testing violated his due process rights. Skinner v. Switzer, #09–9000, 2011 U.S. Lexis 1905.

False Imprisonment

      A prisoner claimed that he had been incarcerated beyond the maximum terms of his sentences for state convictions and a parole violation, and that the defendants violated his due process rights by incorrectly calculating his maximum sentence and by failing to conduct a parole revocation hearing when they revoked his parole and continued to detain him. A federal appeals court found that a federal lawsuit for damages was unavailable when success would necessarily imply the invalidity of the fact or duration of his confinement, which had not been otherwise invalidated. McKinney v. Pennsylvania Board of Probation & Parole, #10-3331, 2010 U.S. App. Lexis 26124 (Unpub. 3rd Cir.).

     A prisoner claimed that various correctional officials and a prosecutor conspired to charge him with assaulting another inmate and wrongfully used that charge to keep him incarcerated beyond the maximum term of his sentence. He sought damages for false imprisonment and malicious prosecution. The prosecutor was entitled to absolute immunity for his decision to prosecute the plaintiff. A number of other defendants could not be held liable, as the prisoner did not really show their personal involvement in his prosecution, but instead simply sought to impose liability based on their supervisory role in the correctional system. The prisoner's demand for release had to be pursued in a habeas petition, and was relief not obtainable in a federal civil rights lawsuit. Tindell v. Pennsylvania, #10-2319, 2010 U.S. App. Lexis 22430 (Unpub. 3rd Cir.).

     An Ohio prisoner was placed on community control for a period of five years. The state moved to revoke that, and a court granted the motion. A state appeals court held that the revocation was improper because it occurred after the five year term had expired. He then sued the correctional department for false imprisonment. The state appeals court rejected the claim, since the judgment originally entered mandating his imprisonment was not void on its face, and its invalidity was only apparent after the appeals court decision ordering his release. McKinney v. Ohio Department of Rehabilitation and Corrections, #09AP-960, 2010 Ohio App. Lexis 1908 (10th Dist.).

Freedom of Information

     A Florida appeals court held that recordings of inmates' phone calls from jail to their family members and other third parties were not public records subject to disclosure to the media. While monitoring of the calls for security purposes was related to official business of the sheriff's office, maintaining recordings of purely personal conversations was not. Bent v. State of Florida, 46 So. 3d 1047 (Fla. App. 4th Dist. 2011).

Inmate Property

     An Arizona prisoner claimed that the confiscation of certain books violated his First Amendment and due process property rights. Rejecting these claims, a federal appeals court found that there was no viable due process claim as the loss of the property, while intentional, was "random and unauthorized." Additionally, he was offered a settlement amount for their loss, and his dissatisfaction with the amount did not render the post-deprivation remedy inadequate, since he could have filed suit in state court. The First Amendment claim was properly rejected as the confiscation of the books, besides being random and unauthorized, was not based on their content. The state Department of Corrections was entitled to Eleventh Amendment immunity from liability. Skinner v. Ariz. Dept. of Corrections, #09-16848, 2010 U.S. App. Lexis 21152 (Unpub. 9th Cir.).

Medical Care

     The evidence presented in a prisoner's lawsuit showed that the prison medical staff was attentive to his fractured finger and that he received ongoing and frequent treatment. It did not reflect any evidence of deliberate indifference to his need for treatment. Clemons v. King, #10-60345, 2010 U.S. App. Lexis 21580 (Unpub. 5th Cir.).

     A prisoner suffering from ulcerative colitis and gastro esophageal reflux disease claimed that two prison doctors provided him with inadequate care. A federal appeals court ruled that the prisoner adequately stated a deliberate indifference claim against one doctor for substituting the drug Prilosec for the drug Prevacid when the prisoner's medical records indicated that he could not tolerate Prilosec. The fact that Prilosec, and not Prevacid, was available in the prison's pharmacy was not an adequate reason for prescribing a harmful drug. A claim about the postponement of a colonoscopy was rejected because it related to a medical judgment about the optimal timing of the procedure, rather than deliberate indifference to the prisoner's need for treatment, and the prisoner did not show that the delay caused him any harm. Gallo v. Feinerman, #09-3575, 2010 U.S. App. Lexis 22932 (Unpub. 7th Cir.).

     A prisoner who is an insulin dependent diabetic claimed that a correctional officer denied him access to medical attention by turning him back when he sought to go to the prison's medication line to obtain a medication called Glipizide. He had been experiencing a loss of feeling in his arms, numbness in his fingertips, and feelings of nausea and lightheadedness. The officer made him return to his cell block to obtain a pass despite the prisoner's statement that he needed medication. He was able to get the medicine later that day. While the officer may have known of the prisoner's diabetes and need for medication, there was no evidence that he knew the prisoner faced a serious risk of harm from a delay in obtaining medication. He did not indicate any desire to deny him treatment, only asking him to follow the pass procedure. The prisoner failed to show any harm caused by the delay. Perkins v. Schwappach, #10-2487, 2010 U.S. App. Lexis 22949 (Unpub. 3rd Cir.).

     A prisoner claimed that personnel at a county jail were deliberately indifferent to his chronic sinusitis. A federal appeals court ruled that the plaintiff's claims really amounted merely to disagreement about the proper treatment to be provided. He was seen by a dentist and an oral surgeon, but the oral surgeon concluded that he did not have a fistula and that his sinus problem was not related to his tooth pain, and referred him an ear, nose, and throat doctor for evaluation. The failure to provide him with an oral surgeon earlier did not show deliberate indifference. The prisoner was seen by the jail's medical staff 25 times in a six month period, and was later referred eight times to at least four different specialists, as well as given antibiotics and pain killers for his symptoms. Mills v. Luplow, #10-584, 2010 U.S. App. Lexis 18766 (Unpub. 2nd Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner filed a lawsuit alleging that a bailiff at a courthouse assaulted him without provocation when he was transported there for a proceeding. He did file a grievance concerning the incident before suing, and the Department of Corrections submitted the matter to Internal Affairs, where it was deemed not sustained. The prisoner's lawsuit was filed when the matter was sent to Internal Affairs. A federal appeals court upheld the dismissal of the lawsuit based on a failure to exhaust administrative remedies as required by the Prison Litigation Reform Act. First, the prisoner was wrong in thinking that the exhaustion requirement did not apply to claims of excessive force. Second, his administrative remedies were not "exhausted" when the matter was sent to Internal Affairs for investigation. Third, while the failure to exhaust administrative remedies does not deprive a federal court of jurisdiction over a prisoner's claim, in that the defendant in a lawsuit may choose to not raise the affirmative defense of failure to exhaust such remedies, once the defense is raised, the court may not ignore it. Worthem v. Boyle, #09-3043, 2010 U.S. App. Lexis 23752 (Unpub. 7th Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule

     The "three strikes" provision of the Prison Litigation Reform Act, barring a prisoner from proceeding in court as a pauper after "three strikes," applies only when three of his prior lawsuits have been entirely dismissed as frivolous, malicious, or failing to state a claim. The trial court therefore acted erroneously in regarding a plaintiff prisoner as having "three strikes" when only some claims in each of three prior lawsuits had been dismissed on such grounds. Tolbert v. Stevenson, #09-8051, 2011 U.S. App. Lexis 2814 (4th Cir.).

     The "three strikes" provision of the Prison Litigation Reform Act, barring a prisoner from proceeding in a federal civil rights lawsuit as a pauper after three prior lawsuits have been dismissed as frivolous, malicious, of failing to state a claim, applies to lawsuits filed by prisoners while incarcerated, even if they are later released. Additionally, a court can rely on the docket sheet entries of prior dismissals to determine whether the prisoner has "strikes," and the court had no obligation to examine the actual orders of dismissal. The three strikes rule is not an affirmative defense that has to be raised in the defendant's pleadings, and the court can therefore apply the requirement itself. The plaintiff prisoner, who claimed he was assaulted while incarcerated and denied medical care for his injuries, was not entitled to an exception to the rule, as he was not in imminent danger of serious harm when he filed his lawsuit. Harris v. City of New York, #09-0081, 2010 U.S. App. Lexis 11128 (2nd Cir.).

     A prisoner who had three prior strikes was barred from proceeding as a pauper under the "three strikes" provision of the Prison Litigation Reform Act when he could not show that he was in imminent danger of serious physical harm. The appeals court applied this rule to a federal civil rights lawsuit that the prisoner filed while incarcerated claiming that various defendants conspired to violate his rights in connection with a prior civil suit he filed against his former employer, and in connection with his arrest and conviction for indecent behavior with a juvenile. Lyles v. Lemmon, #10-30276, 2010 U.S. App. Lexis 26152 (Unpub. 5th Cir.).

Prisoner Assault: By Inmates

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

     A supervisor in a jail or other detention facility, including a sheriff, can be held personally liable based on a finding of deliberate indifference to the rights of detainees under his control. A federal appeals court overturned the dismissal of a lawsuit against a county sheriff. The plaintiff prisoner claimed that other inmates in Los Angeles County jail gathered in a group at his cell door, threatening him with physical harm. When he yelled for a guard to come to his aid, one allegedly instead opened his cell gate, allowing the other inmates to enter and repeatedly stab him and his cellmate. The plaintiff prisoner was stabbed some twenty-three times.

     For liability, a supervisor's "participation could include his own culpable action or inaction in the training, supervision or control of his subordinates, his acquiescence in the constitutional deprivations of which the complaint is made, or conduct that shows a reckless or callous indifference to the rights of others." The injured prisoner asserted that the county sheriff "receives weekly reports from his subordinates responsible for reporting deaths and injuries in the jails, and receives ongoing reports of his Special Counsel and Office of Independent Review." He was allegedly "given notice, in several reports, of systematic problems in the county jails under his supervision that have resulted in . . . deaths or injuries," but failed to take corrective action. Starr v. Baca, #09-55233, 2011 U.S. App. Lexis 2798 (9th Cir.).

     A Mississippi prisoner claimed that prison officials knew he was housed with n inmate with a violent history, but failed to take steps to protect him from assault. The trial court ruled against him. The prisoner made a post-trial motion asking for a jury trial, but he had previously waived a jury, and made his request too late. The prisoner's appeal was found to be frivolous, as he raised no substantial issues, and submitted no transcript of the trial for the court to examine (after representing that he didn't need one to make his arguments). Winding v. Williams, #09-60943, 2010 U.S. App. Lexis 26301 (Unpub. 5th Cir.).

     A Texas prisoner claimed that while he was a pretrial detainee at a county jail, a guard failed to protect him from assault by putting him in the same holding cell as an inmate with whom he had previously fought. She had allegedly broken up that fight. That inmate allegedly subsequently attacked him and broke his rib. The guard, however, stated that she had never seen the plaintiff involved in a fight with his assailant or anyone else, and that he was not on a no contact list with any prisoner because of a fight. There was no record of the alleged prior fight between the two prisoners. A federal appeals court upheld summary judgment for the defendant guard, as the prisoner failed to produce sufficient evidence to defeat the material presented by her. Green v. Ross, #09-20540, 2010 U.S. App. Lexis 18666 (Unpub. 5th Cir.).

Prisoner Discipline

     After a search of his cell, a Massachusetts prisoner was charged with several offenses, including possession of a concealed razor blade and other items posing a security risk. He sued, claiming that various prison employees and officials violated his rights in connection with the subsequent disciplinary hearing, at which he was found guilty of five charges. The appeals court found that the disciplinary determinations were supported by substantial evidence. The appeals court also found no merit in the prisoner's claim that the search of his cell and subsequent discipline were carried out for retaliatory motives. Santiago v. Russo, #09-573, 2010 Mass. App. Lexis 1200, 77 Mass. App. Ct. 612.

     A California prisoner claimed that prison officials violated his rights by issuing him a false disciplinary violation. The appeals court held that his lawsuit was properly dismissed in light of the fact that his disciplinary violation and the associated penalties were reversed through an administrative appeal, and because he did not assert that his resulting administrative segregation imposed an "atypical and significant hardship." Under the due process clause, a prisoner may challenge a state disciplinary action only if it "deprives or restrains a state-created liberty interest in some 'unexpected manner'" or "imposes some 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life'" Harper v. Costa, #09-16988, 2010 U.S. App. Lexis 18085 (Unpub. 9th Cir.).

Religion

     A prisoner claimed that forcing him, while in a treatment program for prisoners who exhibited sexual deviancy, to recite a "serenity" prayer violated his right to religious freedom under the Establishment Clause of the First Amendment. A jury at trial found that there had been no coercion to say the prayer. On appeal, he challenged the jury instructions that required a finding that he had been "damaged" in order to find a violation. While some "injury" was required, the appeals court stated, this was not the same as "damages." It ruled that the instruction, by combining the "damages" requirement with the rest of the requirements, without providing any definition or explanation, was erroneous. But the error did not rise to the level of "plain error" because the prisoner did not object to the instructions at trial or offer any additional or different instructions for the court to consider. The judgment for the defendants was therefore upheld. Munson v. Norris, #08-2387, 2010 U.S. App. Lexis 9058 (Unpub. 8th Cir.).

Retaliation

     A prisoner claimed that officials retaliated against him for filing grievances by placing him in administrative lockdown. The appeals court noted that an inmate is not required to show the favorable outcome of a disciplinary case if he is alleging a retaliation claim. As a result, the trial court abused its discretion in dismissing the claim as barred because the disciplinary conviction had not been reversed or otherwise set aside. The trial court also failed to address claims that the conditions in lockdown violated the Eighth Amendment, which also were not barred on that basis. Muse v. Sheriff's Dept., Ouachita Parish, #10-30521, 2010 U.S. App. Lexis 25953 (Unpub. 5th Cir.).

Sexual Assault

     An Ohio prisoner sued the state for damages based on his claim that a nurse touched him in an inappropriate sexual manner. The nurse was not entitled to civil immunity under state law, and, as a result, the state agency could not be held vicariously liable. Under state law, an employer is not vicariously liable for the "self-serving" acts of employees that do not serve to facilitate or promote the employer's business. The court also rejected claims based on negligent hiring, retention, and supervision, since there was no evidence that the state agency had any reason to believe that the nurse would engage in sexual misconduct with a prisoner, and there was no evidence calling into question the nurse's supervision or training. Garrett v. Ohio Dept. of Rehabilitation and Correction, #2009-04858, 2010 Ohio Misc. Lexis 73 (Ct. of Claims).

Therapeutic Programs

     A prisoner failed to show that he had a protected liberty interest in not participating in an alcohol treatment program. His required participation related to a legitimate penological interest. The prisoner failed also to show a violation of his equal protection rights, as the requirement to participate in the clinical rehabilitation program applied to all prisoners with a history of drug and alcohol abuse. Walter v. Fischer, #09-4365, 2010 U.S. App. Lexis 18939 (Unpub. 2nd Cir.).

     A prisoner claimed that the federal Bureau of Prisons' Residential Drug Abuse Treatment Program (RDAP) discriminated against him in violation of his equal protection rights because some individuals sentenced to less time received a greater percentage reduction in their sentences for participation than he did. Upon completion of the program, a prisoner is eligible for a 6 month reduction in their sentence if sentenced to 30 months, 9 months reduction for sentences of 31 to 36 months, and one year reduction for longer sentences. The plaintiff was eligible for the one year reduction, and was essentially complaining that prisoners with shorter sentences were having a greater percentage of their sentence reduced. The court found no equal protection violation, as the classification involved did not implicate either a fundamental right or a protected class. The defendant agency could rationally decide that a smaller percentage reduction in the sentences of those serving shorter sentences would not encourage them to participate in a treatment program that takes a significant time to complete. Martinez v. Davis, #10-1092, 2010 U.S. App. Lexis 17782 (Unpub. 10th Cir.).

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     Correctional Funding: "The National Summit on Justice Reinvestment and Public Safety: Addressing Recidivism, Crime, and Corrections Spending," (Jan. 2011.pdf). The Council of State Governments Justice Center report documenting strategies to reduce repeat criminality and cut the $50 billion being spent by states each year on corrections in a time of government budget crunches. The report on a "summit" last year offers ways to avoid "haphazard policy decisions that negatively affect public safety." The study includes ways to focus resources on those most likely to offend, base programs on research, use effective community supervision policies, and use "place-based strategies." The effort includes the "justice reinvestment" concept of cutting prison spending and reinvesting savings in other crime-fighting programs.

     Prisoner Recidivism: "Prisoner Recidivism Analysis Tool," (BJS, February 3, 2011). This analysis tool allows users to calculate recidivism rates for persons released from state prisons. Recidivism rates may be generated for the entire sample of released prisoners or for released prisoners with specific demographic, criminal history, and sentence attributes. The tool uses data collected by BJS on a sample of persons released from state prisons in 1994 and followed for a 3-year period. These are the most recent recidivism data available until a new BJS study on the recidivism of state prisoners released in 2005 is published in 2012.

     Statistics: "Jails in Indian Country, 2009" (Feb. 2011, NCJ 232223, 20 pp.) presents findings from the 2009 Survey of Jails in Indian Country. The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2009.

Reference:

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

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