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Access to Courts/Legal Info

     Despite a prisoner's claim that he could not obtain the legal materials he needed to assert his claims about a beating by a corrections officer and inadequate medical care for resulting injury, the record showed that he was granted several extensions of time, but failed to communicate with the court until the month after he obtained the materials in question. Under these circumstances, the dismissal of his lawsuit for failure to obtain service on defendant corrections officers was upheld. McGrew v. McQueen, #09-30937, 2011 U.S. App. Lexis 4852 (5th Cir.).

Death Penalty

     The intended use of imported sodium thiopental, a foreign manufactured non-FDA approved drug in the plaintiff inmate's execution was insufficient to establish a constitutional violation. The plaintiff failed to show that the drug would result in an adverse reaction, and did not plausibly claim that the state would inject the plaintiff, while conscious, with painful lethal drugs. Cook v. Brewer, #11-15303, 2011 U.S. App. Lexis 6753 (9th Cir.).

Drug Abuse and Testing

     Requiring a pretrial detainee to produce a urine sample for drug testing under a "direct observation" procedure was reasonable and did not violate the Fourth Amendment. The government had a compelling interest in preventing him from submitting a false sample, and he had a reduced expectation of privacy while incarcerated. Norris v. Premier Integrity Solutions, Inc., #09-6252, 2011 U.S. App Lexis 6881 (6th Cir.).

Exercise

     Prison officials who ordered a lockdown following a prison riot, which resulted in the prisoner suffering the loss of the opportunity to outdoor exercise, were entitled to qualified immunity. In 2002, the time of the events at issue, it was not clearly established that the declaration of an emergency, the ordering of the lockdown, or the denial of the use of the exercise yard was unlawful under the circumstances. Noble v. Cuevas, #09-17251, 2011 U.S. App. Lexis 5259 (9th Cir.).

First Amendment

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

     Trial court did not act improperly in dismissing prisoner's lawsuit claiming that prison officials failed to process his grievances and were deliberately indifferent to his serious medical needs, as well as failing to protect him against assault by other prisoners. The prisoner failed to exhaust his administrative remedies by filing a timely grievance regarding his medical care, and failed to present any evidence that guards were aware of any specific threats to him by other prisoners. His First Amendment claim concerning the defendants' forcible termination of his hunger strike was properly rejected since he had no First Amendment right to refuse medical treatment intended to save his life. Owens v. Hinsley, #09-3618, 2011 U.S. App. Lexis 5360 (7th Cir.).

     Editor's Note: For more on this topic, see Forced Feeding or Medication of Prisoners, 2007 (12) AELE Mo. L.J. 301.

     A Wisconsin prisoner was denied receipt of a three-volume set of law books that he ordered through the mail and which cost $110. A prison rule restricted the receipt of any one item of property to a value of $75. The prisoner argued that the set constituted three items, each of which cost less than $75. A federal appeals court rejected the claim that denying him receipt of the set violated his First Amendment rights. Some defendants were not personally involved in the decision to withhold the books, while others were protected by qualified immunity, as the inmate had no clearly established right to receive the materials in violation of a rule about the monetary value of property received. Hohol v. Jess, #10-1280, 2011 U.S. App. Lexis 6138 (Unpub. 7th Cir.).

Inmate Funds

     Correctional officials in Illinois had the right to attach funds that a prisoner saved from his wages while incarcerated over a period of decades to recover the cost of his incarceration. A state statute concerning this placed no limitation on the right of the state to file a lawsuit to recover such funds. In this case, the prisoner saved over $11,000 from his $75 a month prison wages by failing to spend much at all. The state got a $455,203.14 judgment against him for the cost of his incarceration, and the appeals court rejected the argument that the state was barred from such a recovery from inmate savings by the fact that it already takes a 3% offset from inmate wages for incarceration costs. The inmate, not eligible for parole until 2028, has appealed the ruling to the Illinois Supreme Court. People ex rel. Dep't of Corr. v. Hawkins, #3-09-0418, 2010 Ill. App. Lexis 621, 402 Ill. App. 3d 204 (3rd Dist.).

Mail

     A prisoner's lawsuit claiming that a facility had a policy of requiring prisoners to leave their legal mail with the prison library staff for review for up to three days to read outside the prisoner's presence before furnishing them, if indigent, with photocopies of legal documents they need states a claim for violation of prisoner rights and should not have been rejected without further scrutiny. Washington v. Davis, #09-2080, 2011 U.S. App. Lexis 6414 (Unpub. 6th Cir.).

Medical Care

     A detainee in a county jail failed to show that anything about his medical treatment there for diabetes and high blood pressure, as well as coronary artery disease, had caused him to suffer a stroke. Harold v. County of Orange, #G043532, 2011 Cal. App. Unpub. Lexis 2468 (Unpub. 4th Dist.).

     When an inmate failed to seek to obtain his medical records until just before the deadline to designate an expert medical witness for his medical malpractice claim under the Federal Tort Claims Act, his failure to designate an expert justified staying discovery and then granting summary judgment to the defendant. Fujita v. United States, #10-10258, 2011 U.S. App. Lexis 4218 (5th Cir.).

     A prisoner's claim that a prison staff member denied him medical treatment for an injury to his hand that had already been prescribed was sufficient to state a claim for deliberate indifference to a serious medical need. Criollo v. Milton, #10-40346, 2011 U.S. App. Lexis 4207 (Unpub. 5th Cir.).

     A Tennessee prisoner adequately stated claims against two defendants for allegedly providing him with inadequate treatment for tuberculosis. He claimed that he was given the seizure medication intended for another patient, and that he was allegedly sent to the medical unit without an escort after it was determined that he took the wrong medication, as a result of which he fell down an escalator from being dizzy, suffering injuries. The claims that survived included one that a defendant abandoned him after his fall, providing no further medical care for his injuries, and that the prison medical director allegedly failed to adequately supervise the treatment provided to him. Barnett v. Luttrell, #08-6432, 2011 U.S. App. Lexis 4873 (Unpub. 6th Cir.).

Medical Care: Mental Health

     A prisoner who claimed that a psychologist improperly ordered him placed on suicide watch instead of medicating him failed to establish a claim for deliberate indifference. There was nothing to show that the defendant's actions were inconsistent with his duties as a medical professional. The prisoner had a history of substance abuse and expressed a desire to be medicated with Zoloft, which the psychologist did not believe he needed. Walker v. Eyke, #09-1695, 2011 U.S. App. Lexis 6512 (Unpub. 6th Cir.).

Prison Litigation Reform Act: "Three Strikes" Rule.

     A prisoner claimed that he was denied medical treatment for his diabetes and Hepatitis C in retaliation for engaging in protected First Amendment activity of speaking out about prison health needs and seeking access to the courts. His complaint was dismissed under the "three strikes" provision of the Prison Litigation Reform Act. Reversing, a federal appeals court held that his claim fell within an "imminent danger" exception to the three strikes rule, since he claimed that he was still receiving improper care for retaliatory reasons. Vandiver v. Vasbinder, #08-2602, 2011 U.S. App. Lexis 6325 (Unpub. 6th Cir.).

Prisoner Assault: By Inmate

     A man civilly committed in Illinois as a sexually dangerous person failed to show that facility staff members acted with reckless disregard to the danger of an attack on him by his cellmate or that they treated him, as a black man, differently than similarly situated white detainees. Young v. Monahan, #09-3401, 2011 U.S. App. Lexis 4692 (7th Cir.).

Prisoner Death/Injury

     A corrections officer was not entitled to qualified immunity in a lawsuit over the death of a pretrial detainee from a drug overdose. Evidence that showed that the detainee was intoxicated and that the officer subsequently altered jail medical records concerning the detainee indicated that the officer may have acted with deliberate indifference to the detainee's risk of death. Border v. Trumbull County Bd. of Comm'rs, #10-3167, 2011 U.S. App. Lexis 5649 (Unpub. 6th Cir.).

Religion

     A probationer claimed that the action of personnel at a county courthouse holding facility in requiring her to remove her Muslim headscarf violated her rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5. A federal appeals court ruled that her lawsuit was improperly dismissed because the courthouse holding facility fit within the statute's definitions of a "pretrial detention facility," and a "jail." Khatib v. County of Orange, #08-56423, 2011 U.S. App. Lexis 5022 (9th Cir.).

     A policy restricting a prisoner from standing in the dayroom for extended periods of time for security reasons did not violate his rights as a Muslim to engage in prayer at specific times of the day, as he was able to go to his cell or other places at those times to pray and to stand or kneel there as required. DeMoss v. Crain, #09-50078, 2011 U.S. App. Lexis 4219 (5th Cir.).

Retaliation

     A prisoner's claim that he was improperly disciplined for defiance in retaliation for refusing to consent to an invasive medical procedure should not have been dismissed. The trial court improperly applied a subjective legal standard to the issue of whether the prisoner suffered adversity from the alleged retaliatory act. The disciplinary action resulted in his loss of 180 days of good time credit and confinement in isolation for ten days. The sanctions imposed were more than minimal, as the trial court seemed to regard them, and it was not required that the plaintiff show that the sanctions imposed actually deterred him from exercising his constitutional right to refuse medical treatment. Hanna v. Maxwell, #10-30053, 2011 U.S. App. Lexis 4335 (5th Cir.).

     A prisoner claimed that correctional officers retaliated against him for filing grievances by activating a "purge fan" that caused the temperature in his cell to drop below freezing for approximately four hours for three mornings in a row. A federal appeals court upheld a jury determination that the plaintiff did not prove his claim. Bibbs v. Early, #09-10557, 2011 U.S. App. Lexis 5767 (Unpub. 5th Cir.).

     Prisoner's claims that prison officials and employees treated him with hostility, left false notes in his cell, and seized his bags of legal materials, thereby preventing him from filing legitimate grievances, all in retaliation for complaining about prison conditions, were more than minimal violations of his rights, if true, and should have been examined by a fact-finder rather than dismissed. Kennedy v. Bonevelle, #09-2289, 2011 U.S. App. Lexis 4157 (Unpub. 6th Cir.).

Segregation: Administrative

     A pretrial detainee facing federal drug charges was first placed in protective custody and then in lockdown without phone or mail privileges after it was discovered that he was continuing to make phone calls and might be a threat to various individuals. A federal appeals court found that any right to be free from restrictive pretrial detention under these circumstances was not clearly established, and that it was "far from clear" that it existed at all. Jones v. Horne, #09-5128, 2011 U.S. App. Lexis 3169 (D.C. Cir.).

     When prisoner's reassignment left him better off rather than worse off than the conditions he previously faced, in a less restrictive environment, he failed to show that placing him there without further due process violated his constitutional rights. The prisoner, who shot and wounded an adult and four children at a community center, and subsequently murdered a postal worker after fleeing the scene, was transferred from the general population at one prison to a Special Confinement Unit at a second prison, designed for high-security inmates. He was later transferred to a Special Housing Unit and assigned to administrative detention. A federal appeals court rejected his claim that he was entitled to due process before the last transfer. Additionally, he failed to sue until he had been in the Special Housing Unit for over four years, so that his claim that transferring him there without a hearing violated due process was also barred by a two-year statute of limitations. Furrow v. Marberry, #10-3232, U.S. App. Lexis 4869 (Unpub. 7th Cir.).

Strip Search: Prisoners

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

     A male prisoner's lawsuit claiming that a strip search violated his Eighth Amendment rights should have survived summary judgment when he asserted that guards stripped searched him in order to humiliate him, that female civilian spectators and female staff members were present during the search, and that the spectators were allowed to jeer at him and engage in "sexual ridicule." May v. Trancoso, #09-3196, 2011 U.S. App. Lexis 5275 (Unpub. 7th Cir.).

Telephone Access and Use

     A prisoner, whose telephone privileges were suspended, because of his rule violations, five days before his plea hearing, filed a federal civil rights lawsuit claiming that this denied him his Sixth Amendment right to counsel. The days just prior to the plea hearing did not qualify as a "critical stage" of his criminal prosecution, and he did not suffer a complete denial of access to counsel during the entire pretrial period. Further, his rule violations affected security and safety at the jail. Stamper v. Campbell County, #09-5973, 2011 U.S. App. Lexis 5644 (Unpub. 6th Cir.).

     Editor's Note: For more on this topic, see Legal Issues Pertaining to Inmate Telephone Use, 2008 (2) AELE Mo. L.J. 301.

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    Electronic Control Weapons: COPS 2011 Electronic Control Weapon Guidelines (April 7, 2011).

Reference:

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

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