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Access to Courts/Legal Info

     A prisoner argued that prison officials violated his right of access to the courts by confiscating photos that were part of his trial record that had been mailed to him by his attorney. The reason that was given for the confiscation was that the photos were sexually explicit. They were close-ups of the alleged injuries to his minor victim's genitals. A federal appeals court, upholding the rejection of the prisoner's claim, noted that the prisoner failed to show that denying him access to the photographs prevented him from raising a meritorious legal issue in his criminal appeal. Additionally, opening his legal mail outside of the prisoner's presence, for the purpose of inspecting it for contraband, did not violate his rights. Clemons v. Monroe, #10-50629, 2011 U.S. App. Lexis 8018 (Unpub. 5th Cir.).

     Editor's Note: For more on this topic, see Access to Courts and Legal Information, 2007 (1) AELE Mo. L.J. 301, Prisoner Mail Legal Issues, 2007 (6) AELE Mo. L.J. 301, and Prisoners and Sexually Explicit Materials, 2010 (2) AELE Mo. L. J. 301.

Housing

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

     A federal appeals court rejected a prisoner's argument that he had a right, under the Ninth Amendment, to choose his own cellmate. Additionally, the plaintiff prisoner acknowledged that he had subsequently been placed with an acceptable cellmate. Murray v. Bledsoe, #10-4397, 2011 U.S. App. Lexis 11702 (3rd Cir.).

     Editor's Note: Two previous cases holding that prisoners have no constitutional right to choose their cellmates are Harris v. Greer, #83-2575, 750 F.2d 617 (7th Cir.1984); and Cole v. Benson, #85-1051, 760 F.2d 226 (8th Cir.1985) (per curiam)

Medical Care

     A prisoner failed to show that medical personnel acted with deliberate indifference in failing to diagnose and treat his Fuchs' dystrophy, a corneal disease, since the record showed that they repeatedly examined him (no less than seven times in a nine month period), and recommended piggyback lenses and artificial tears in response to his reports of eye pain. Zuege v. Knoch, #10-3373, 2011 U.S. App. Lexis 10221 (Unpub. 7th Cir.).

Prisoner Assault: By Officers

     An arrestee who was uncooperative and refused to change into a jail uniform failed to show that an officer used excessive force against him during the booking procedure at a county detention facility. The detainee, who was constantly yelling and cursing during the incident, complained that the uniform trouser options were either the wrong size or a "displeasing" color, The court below found the officers' version of the incident credible, that the detainee jumped off the bench towards an officer, reasonably making that officer fear that he was facing a threat to his safety, and justifying the use of an arm-bar maneuver in defense. Hicks v. Norwood, #10-3218, 2011 U.S. App. Lexis 10423 (8th Cir.).

Prisoner Death/Injury

      New York City has reached a $2 million settlement in a lawsuit alleging that an intoxicated postal worker, detained after a dispute in which he was barred from his apartment, died in custody from the untreated effect of severe alcohol withdrawal. The decedent had reportedly told jail medical personnel that he had been drinking two or three pints of rum a day, and he appeared agitated and disoriented. The defendants subsequently allegedly failed to follow a written protocol on treatment of severe alcohol withdrawal, which includes hospitalization. Instead, he was kept in the jail's general population, and died approximately 28 hours after his arrival there. Livermore v. City of New York, $1:08-CV-04442, (S.D.N.Y. May 23, 2011).

Retaliation

     A "jailhouse lawyer" who claimed that he was transferred to an out-of-state prison in retaliation for his activities on behalf of other prisoners and for pursuing his own grievances failed to show that there was a causal relationship between these admittedly protected activities and his transfer. Instead, there was evidence that the transfer elsewhere was the result of the prisoner having accumulated a number of "separations," which the court characterized as "a term used to indicate the existence of a placement conflict counseling against assignment of one inmate to the same institution as another inmate or staff member." Hannon v. Beard, #10-1792, 2011 U.S. App. Lexis 11549 (1st Cir.).

     An African-American prisoner in Michigan claimed that, after his transfer to a new facility, he encountered a correctional officer who remembered him from the first prison as a "litigant," and who allegedly subjected him to body searches, threats implying the possible use of physical violence, and racial epithets. A federal appeals court found that the prisoner alleged facts sufficient to create a genuine issue of fact as to whether he had been subjected to unlawful retaliation for his role in the litigation at his former facility, even though the officer who allegedly threatened him had not been a defendant in that lawsuit. Reynolds-Bey v. Spicer, #09-1472, 2011 U.S. App. Lexis 7660 (Unpub. 6th Cir.).

Segregation: Disciplinary

     A Wisconsin prisoner was placed in the prison's most restrictive disciplinary segregation for 240 days because he had committed misconduct while in a less restrictive disciplinary segregation environment. In his lawsuit complaining about this and the procedures used to find that he had violated the rules, the prisoner failed to show that the conditions he was placed in deprived him of constitutionally protected liberty or property.

     The prisoner needed to, but failed to, show that the conditions in the prison's most restrictive disciplinary segregation were more onerous than those of a high-security prison in Wisconsin, to which a prisoner may be assigned without any opportunity for a hearing. While due process requires a hearing before a prisoner loses more liberty than he lost as a result of his conviction and sentence, "the right comparison is between the ordinary conditions of a high-security prison in the state, and the conditions under which a prisoner is actually held." Marion v. Radtke, #10-2446, 2011 U.S. App. Lexis 11054 (7th Cir.).

Smoking

     A prisoner failed to show that his occasional exposure to environmental tobacco smoke (ETS) in an outdoor recreational yard as a result of guards smoking rose to the level required to impose liability. This requires: "(1) exposure to unreasonably high levels of ETS contrary to contemporary standards of decency; and (2) deliberate indifference by the authorities to the exposure to ETS." Turner v. Leggett, #10-4654, 2011 U.S. App. Lexis 7095 (Unpub. 3rd Cir.).

     While there was evidence that the plaintiff prisoner had asthma, the record did not support his argument that his level of exposure to environmental tobacco smoke (ETS) in Michigan state prisons amounted to a serious threat to his health in violation of the Eighth Amendment, as opposed to "mere discomfort." His asthma was "relatively minor," and could be managed through the use of an inhaler and other medication. There also was insufficient evidence to support his claim that he was transferred to another facility, with allegedly worse ETS, in retaliation for complaining about ETS. Jones v. Caruso, #10-1515, 2011 U.S. App. Lexis 8729; (Unpub. 6th Cir.).

     Editor's Note: For more on this issue, see Legal Issues Pertaining to Smoking in Correctional Facilities, 2008 (1) AELE Mo. L.J. 301.

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     Death Penalty: "Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976," A Report of the Death Penalty Information Center (July 2011). The report states that while there are approximately 15,000 murders each year in the U.S., last year there were 46 executions. It asserts that most of the executions have little to do with the severity of the crime, but instead are influenced by factors such as race, geography, quality of legal defense, and "uneven" appeals court review. In some jurisdictions, almost all death penalty convictions are affirmed in state court, according to the report, while in other states, most are overturned on appeal. Two-thirds of all death sentences are reportedly overturned on appeal nationwide.

     Parole: "Special Report: California Department of Corrections and Rehabilitation's Implementation of the Non-Revocable Parole Program," California Office of the Inspector General (May 2011). The report concludes that computer errors, among other things, caused the mistaken release of approximately 450 California inmates with "a high risk for violence" into a program of unsupervised parole fashioned for the purpose of controlling prison overcrowding.

     Private Prisons: "Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies," by Paul Ashton, Justice Policy Institute (June 22, 2011). The report indicates that the inmate population of private facilities has increased 353 percent in 15 years, compared with a nearly 50 percent growth in prison population overall.

     Statistics: "Costs of Incarceration and Supervision in FY 2010," Administrative Office of the U.S. Courts (June 23, 2011). "The annual cost of keeping someone imprisoned in a Federal Bureau of Prisons facility in fiscal year 2010 was $28,284.16. The annual cost of probation supervision was $3,938.35. Those figures work out to a daily cost of $77.49 for incarceration of a convicted criminal, and $10.79 for supervised release. The daily cost of holding a criminal defendant in pretrial detention in FY 2010 (the 12-month period ending September 30, 2010) was $70.56, and the daily cost of pretrial supervision was $6.62."

Reference:

• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently-noted jail and prisoner law resources.