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AIDS/HIV Related

    An HIV-positive prisoner who allegedly did not receive his medication during a 167-day period of incarceration at a county jail stated a viable claim for liability against a jail employee who allegedly stated that "we don't give away" HIV medications "here at this jail." There was also a genuine issue of fact as to whether a physician's assistant acted with deliberate indifference to the prisoner's medical needs. Leavitt v. Correctional Medical Services, Inc., #10-1432, 2011 U.S. App. Lexis 13269 (1st Cir.).

Governmental Liability: Policy/Custom

     Two former prisoners at a county jail claimed that deputies, in separate incidents, used excessive force against them. A federal appeals court held that the plaintiff prisoners were entitled to a new trial on their claims against the county because the jury instructions did not adequately define what a practice or custom was for purposes of imposing municipal liability. The trial court should have included the plaintiffs' proposed instructions relating to jail officials' alleged failure to investigate incidents of excessive force and to take disciplinary action against guards who used such force "despite the existence of an official policy prohibiting the use of excessive force." Hunter v. County of Sacramento, #09-15288, (9th Cir.).

Inmate Funds

     A federal appeals court rejected prisoners' claims that alleged overcharges or excessive prices in the prison commissary in violation of a state statute concerning the mark-up on goods violated their right to due process of law. The court reasoned that "no pre-deprivation process could have predicted or prevented the alleged deprivation, and plaintiffs have not alleged the absence of adequate post-deprivation remedies." Tenny v. Blagojevich #10-3075, 2011 U.S. App. Lexis 17976 (7th Cir.)

Inmate Property

     Because of a number of past incidents in which Nevada prisoners have used parts from typewriters as weapons, a correctional department rule prohibiting inmate possession of typewriters did not violate inmate rights. This did not deprive prisoners who already owned typewriters of their property, as they were given the option of shipping them to family members, having them destroyed, or donating them to charity. Nevada Department of Corrections v. Greene, #08-17091, 2011 U.S. App. Lexis 16829 (9th Cir.)

Medical Care

     An arrestee died of a heart arrhythmia, and there was sufficient evidence that lockup personnel failed to adequately respond to her complaints of abdominal pain to support a jury verdict for her estate. The jury awarded $5 million in compensatory damages and $4,000 in punitive damages. The defendants were entitled to a new hearing on the issue of the proper damages to be awarded, however, since the trial court erred in excluding evidence that the prisoner was a drug addict with a prior arrest record, for the purpose of refuting testimony from her son that she was a good role model. Cobige v. City of Chicago, #10-3728, 2011 U.S. App. Lexis 14253 (7th Cir.).

     An obese diabetic woman allegedly asked for her medications while in a police lockup, but these requests were denied. She subsequently died in her cell, and a federal appeals court ruled that a number of guards might be held liable for her death. The fact that arrestees are kept in police lockups for a fairly short period of time, the court commented, "is not a license for lockup keepers to deny all arrestees all medical care simply because they will probably be transferred within 48 hours." Access to the drugs was allegedly denied pursuant to a Chicago Police Department (CPD) policy that prohibits arrestees from taking medications while in lockup unless they are taken to a hospital. The appeals court reversed summary judgment for the defendants on a claim for denial of adequate medical care. Ortiz v. City of Chicago, #10-1775, 2011 U.S. App. Lexis 17759 (7th Cir.)

Religion

     A prisoner who belongs to the African Hebrew Israelite (AHI) religion adequately stated a claim that prison officials improperly singled out services held by his religion for cancellation, and disproportionately allocated the prison's limited budget for religious activities to favor other religious groups. The court cautioned, however, that "Prisons need not provide every religious sect or group within a prison with identical facilities or personnel and need not employ chaplains representing every faith among the inmate population."Maddox v. Love. #10-1139 , 2011 U.S. App. Lexis17680  (7th Cir.).

Sexual Assault

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

     A jury awarded $500,000 to a female pretrial detainee against a county on her claim that a male sheriff's deputy raped her while she was in custody. The trial court erroneously set this award aside, a federal appeals court ruled, and stated that the mere fact that a county policy prohibited such sexual misconduct was an inadequate defense. "No County policy prohibited a single deputy of one sex from being alone with a prisoner of another sex. Nor were any monitoring devices, such as surveillance cameras, ever employed to supervise such one-on-one interactions." Cash v. County of Erie, #09-4371, 2011 U.S. App. Lexis 17163 (2nd Cir.)

     Present and former female inmates of New York state prisons could pursue class action claims for injunctive and declaratory relief, seeking protective measures against what they asserted was a pattern of sexual molestation by prison guards. The fact that some of them had been released did not make their claims moot, since they alleged misconduct which was capable of repetition, but which would evade review if the mootness doctrine was applied. Amador v. Andrews, #08-2079, 2011 U.S. App. Lexis 17440 (2nd Cir.)

Transsexual Prisoners

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

     A Wisconsin state statute that flatly prohibits providing hormone therapy or sex reassignment surgery to transsexual prisoners regardless of their medical needs is in violation of the Eighth Amendment. The asserted interest in maintaining prison security did not justify denying hormone therapy on the rationale that developing female secondary sexual attributes, such as breasts, would subject transsexual inmates to an increased risk of sexual assault. There was ample evidence that such prisoners are targets for sexual assault even without hormone therapy. "Refusing to provide effective treatment for a serious medical condition serves no valid penological purpose and amounts to torture." Fields v. Smith, #10-2339, 2011 U.S. App. Lexis 16152 (7th Cir.).

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     Education: "Unlocking Potential: Results of a National Survey of Postsecondary Education in State Prisons," by Lara E. Gorgol and Brian A. Sponsler, Institute for Higher Education Policy (May 2011). Based on data from 43 states, this survey found that only 6 percent of prisoners were enrolled in vocational or academic post-secondary programs during the 2009-2010 school year. Of enrollees, 86 percent were serving time in 13 states, suggesting other states provide little access to inmate education.

Reference:

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