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Access to Courts/Legal Info

     A prisoner claimed that when a prison law library switched from use of print publications to the use of Lexis-Nexis computerized legal research, it violated his constitutional right of access to the court because he was never given instruction as to how to use the new system A federal appeals court, however, rejected the claim that he had been denied access to the courts, noting that he had been successful so far in handling his pending federal civil rights litigation with the resources currently at his disposal. The fact that he was able to file multiple motions in court showed that any curtailment of his access to the law library while he was in a special housing unit had not resulted in any actual prejudice in his claims. McCree v. Grissom, #11-1524, 2011 U.S. App. Lexis 19281 (7th Cir.).

Employment Issues

     A female correctional officer, having previously been warned about engaging in excessive absenteeism, declined to accept a change of shift requiring longer hours, and which she claimed would not reasonably accommodate her back problems. She was terminated, and claimed that this constituted gender discrimination because a male co-worker who also refused to accept a shift change was not disciplined as severely. A federal appeals court found that the two officers' actions were similar enough that a jury could find that the different treatment constituted gender discrimination, and should be allowed to consider her claim. Summary judgment for the employer was improper, and there was no indication in the record that the employer had taken her disciplinary record into consideration in firing her. Eaton v. Indiana Department of Corrections, #10-3214,  2011 U.S. App. Lexis 18675 (7th Cir.).

     While the adoption by California of a three-day-per-month furlough program for state employees reduced the pay of members of the California Correctional Peace Officers Association, this was within the authority of the state legislature in revising the state budget, and did not violate state labor or government codes or the state's minimum wage law. A trial court award of back pay for the officers was therefore reversed. Brown v. Superior Court, #A127292, 2011 Cal. App. Lexis 1259 (1st Dist.).

First Amendment

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

    Wisconsin prison officials did not violate the First Amendment in preventing inmates from receiving copies of "The New Abolitionist," (subsequently renamed Wisconsin Prison Watch), a prison reform newsletter mailed to them, since the record showed that they could properly conclude that it contained "misleading information, encourages distrust of prison staff, and could potentially undermine the prison's rehabilitative initiatives." The plaintiffs failed to show that classifying the publication as harmful was unreasonable. Van Den Bosch v. Raemisch, #09-4112, 2011 U.S. App. Lexis 19031 (7th Cir.).

Medical Care

     A prisoner suffered from a serious condition of rheumatoid arthritis and had previously taken the medication Enbrel that successfully controlled it. When he arrived at a prison, it was determined that the medication was not on the facility's approved formulary. Medical staff members could be held liable for not either seeking approval to obtain the medication or else looking into what alternative treatments would be effective in controlling his condition. Arnett v. Webster, #09-3280, 2011 U.S. App. Lexis 18812 (7th Cir.).

     Because a county jail did not have the resources to adequately handle pregnancy-related medical emergencies, a pregnant minor stated a claim for deliberate indifference to her serious medical needs by alleging that personnel there failed to rush her to a hospital when she began having labor pains, and that she was not seen by a doctor until seven hours later. She was subsequently taken to a hospital, but then returned to the jail, where her baby was born, suffering various birth defects including severe mental retardation and cerebral palsy. Havard v. Wayne County, #09-1235, 2011 U.S. App. Lexis 17404 (Unpub. 6th Cir.).

     A contractor that provided health care services at a county jail was entitled to summary judgment in a detainee's lawsuit for alleged deliberate indifference to his serious medical needs. Nine different medical practitioners conducted evaluations of the detainee a total of 16 times over a nine day period before deciding to send him to have a scan done that ultimately showed that he required neurological surgery. This only constituted a single incident, however, and was insufficient to show a policy or custom of deliberate indifference. Craig v. Floyd County, #10-13225, 643 F.3d 1306 (11th Cir. 2011).

Procedural: Discovery

     An intermediate California appeals court found that a trial court erred in ordering a prison warden to either disclose unredacted copies of information in a prisoner's file or else not rely on the information in opposing the prisoner's habeas corpus petition. The information involved was conditionally privileged and came from other prisoners who served as confidential informants. The disclosure of their identities would necessarily endanger their lives. Ochoa v. Superior Court, #H036970, 2011 Cal. App. Lexis 1290 (Cal. App.).

Religion

     A prisoner who said that he was a member of the Moorish Science Temple asked for a vegan diet. His request was denied, and the prison's chaplain stated that the religion allows members to eat a variety of fish and meat. Ruling that a "personal religious faith is entitled to as much protection as one espoused by an organized group," the court found that the defendant chaplain was not entitled to qualified immunity if his denial was based on his interpretation of the religion's tenets. He would, however, be entitled to qualified immunity if he made his decision based on a determination that the prisoner's religious belief that he should eat a vegan diet was not sincere. The prison's warden was entitled to summary judgment, as he was not involved in making or ratifying the decision. Vinning-El v. Evans, #10-1681, 2011 U.S. App. Lexis 19053 (7th Cir).

Retaliation

     A prison education director had an inmate fired from his job as a clerk in the prison library. The prisoner subsequently filed a grievance against the education director, who filed a misconduct report against the prisoner a day later concerning the incident that led to the firing. Based on the timing of the misconduct report, as well as its "threadbare" nature, the prisoner stated a triable claim of unlawful retaliation in violation of his First Amendment rights against the education director. Greene v. Doruff, #10-3497, 2011 U.S. App. Lexis 20597 (7th Cir.)

Segregation: Administrative

     An amendment to the California state penal code under which a prison inmate who chose to remain an active gang member during his incarceration was placed in administrative segregation and deemed ineligible to earn sentence reduction conduct credits did not violate his rights against ex post facto punishment since his choice to remain in the gang continued after the passage of the provision. The court also found that the determination that he remained a gang member was adequately supported by "some evidence." In re Efstathiou, #C067807, 2011 Cal. App. Lexis 1381 (Cal. App.).

Strip Searches: Prisoner

    A woman arrested for a misdemeanor of hindering apprehension of her husband was strip searched at the county jail pursuant to a policy of strip searching all arrestees entering the facility for felonies, or for Class A or B misdemeanors. A federal appeals court, acting en banc, declined a county's request that it overrule its prior precedent requiring reasonable suspicion of possession of a weapon or contraband before a detainee is strip searched. The defendant county failed to object to jury instructions including the reasonable suspicion requirement, and the court could not say that these instructions constituted plain error. The court upheld a judgment for the plaintiff of $55,000 for mental anguish, $5,000 in punitive damages, $157,394.60 in attorneys' fees, and $37,153.95 in costs. Jimenez v. Wood County #09-40892, 2011 U.S. App. Lexis 20748 (5th Cir. en banc.).

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      Prison & Jail Employees: "Federal Bureau of Prisons: Enhanced Screening of BOP Correctional Officer Candidates Could Reduce Likelihood of Misconduct, Evaluation and Inspections," Report I-2011-002, U.S. Dept. of Justice, Office of the Inspector General (September 2011). The report indicates that arrests of federal prison guards increased by almost 90% in the past ten years, and states that this may be because of poor hiring practices during a period which saw a 25 percent increase in prison growth. The number of misconduct investigations doubled, and over half of the alleged offenses were committed during an officer's first two years on the job. Recommendations include better background screening of applicants and improvements in the assessment of new employees.

     Private Prisons: "Banking on Bondage: Private Prisons and Mass Incarceration," ACLU report (November 2011).

Reference:

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

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