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

False Imprisonment

     A prisoner's conviction for criminal sexual conduct was reversed by a Michigan state appeals court, and remanded for a new trial. For unknown reasons, one was not scheduled and the trial court was unaware of the 1989 reversal until 2007. As a result, he spent over seventeen years as a pretrial detainee after the reversal of his conviction. Rejecting his claim that the county was liable for violating the plaintiff's right to a speedy trial, the appeals court noted that there was no evidence that the prosecutor was directly responsible for the failure to respond to the appeals court's remand order. There was also no indication that the need for action at any time became obvious to a county policymaker, nor was what happened a predictable result of a county policy or inadequate training of assistant prosecutors. Heyerman v. County of Calhoun, #10-2322, 2012 U.S. App. Lexis 10731, 2012 Fed. App. 160P (6th Cir.).

Homosexual Prisoners

     An insulin-dependent diabetic prisoner was hired to work in a public works program off the prison premises. After he experienced an incident in which he became ill from low blood sugar, he was removed from the program. He sued, claiming that the true reason for his termination was his gay sexual orientation. He claimed that officers supervising the work crews treated him differently than other heterosexual insulin-dependent diabetic inmates working on the project, taunting and harassing him. The prisoner adequately stated a claim of class-based discrimination based on sexual orientation, so that the dismissal of his lawsuit was improper. His claim was not a "class-of-one" equal protection claim barred in the context of public employment by Engquist v. Oregon Department of Agriculture, #07-474, 128 S.Ct. 2146 (2008). Davis v. Prison Health Services, #10-2690, 2012 U.S. App. Lexis 9548, 2012 Fed. App. 131P (6th Cir.).

Medical Care

     A prisoner not involved in a fight between two other inmates claimed he struck in the arm by a shotgun pellet fired by a guard was a nearby catwalk. He allegedly had to wait four days for medical attention, suffering significant pain in the interim. Right after the incident, a medical aide allegedly assured him that she would go and get medication and medical supplies for him, but did not return with it. He asserted a valid claim for excessive use of force, as there was sufficient evidence to support an inference that an officer acted maliciously in using deadly force against prisoners not involved in the fight. The delay in treatment supported a claim for deliberate indifference to a serious medical need. Claims against one officer concerning medical care were properly dismissed, as he summoned medical assistance as soon as he became aware of the prisoner's injury. The prisoner also stated a valid First Amendment claim, based on his assertion that he was transferred to another facility in retaliation for threatening to bring a grievance over the incident. Gomez v. Randle, #11-2962, 2012 U.S. App. Lexis 9656 (7th Cir.).

     A 69-year-old prisoner on death row claimed that prison doctors and the warden acted with deliberate indifference towards his need for hip replacement surgery. The delay in approving such surgery on both hips after the need for it was diagnosed by consulting orthopedic surgeons could constitute a violation of his Eighth Amendment rights. The delay could be found to have caused excruciating pain, rendering the prisoner barely able to walk. He claimed that the warden instructed medical personnel to not "knock yourself out" when death row inmates get "deathly ill." Snow v. McDaniel, #10-16951, 2012 U.S. App. Lexis 10646 (9th Cir.).

Prison Litigation Reform Act: Attorneys' Fees

     A pretrial detainee received a jury verdict against four deputy sheriffs on excessive force claims arising from separate incidents when he was in the county jail. The jury only awarded $1 in damages against one of the defendants. The other three deputies were liable, respectively, for $5,000 in compensatory and $10,000 in punitive damage, $50,000 in compensatory and $50,000 in punitive damages, and $100,000 in compensatory and $150,000 in punitive damages, for a total award of $365,001.

     The trial court awarded $505,671.40 in attorneys' fees and $24,549.94 in costs, ordering the plaintiff to pay $5,000 of the fee award. The court ordered that all four defendants bee jointly and severally liable for the remaining $500,671.40, to ensure that the attorneys' fees were paid. This action was taken, in part, because the county indicated that it might not indemnify the defendant against whom the largest award was made because he was in prison and thought to be judgment-proof. An appeal of the judgment on liability was affirmed, Jimenez v. Franklin, #07-56149, 333 Fed. Appx. 299, 2009 U.S. App. Lexis 21564 (Unpub. 9th Cir.) but that appeal did not raise the issue of joint and several liability for the attorneys' fees. An additional $41,830.10 in fees were awarded for that appeal, bringing the fee award to $547,501.50, or 150% of the total damage award, the fee limit under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(2).

     The county did not pay $225,000 of the attorneys' fee award.  A federal appeals court rejected an argument by the deputy found liable for $1 that he could not be held jointly and severally liable for the unpaid fees because of the statute's attorneys' fee cap of 150% of damages, as he had not raised the issue in the earlier appeal.  Jimenez v. Franklin, #10-56199, 2012 U.S. App. Lexis 10260 (9th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     A prisoner sued over a prison policy that he claimed limited the ability of Muslim inmates to perform regular congregational prayers by limiting the time and space for it. A federal appeals court held that the prisoner adequately exhausted his available administrative remedies by pursuing a 2005 grievance against the policy as first set in place by an earlier warden. Given that the same policy complained of was substantially continued by the new warden in 2007, the earlier grievance had been sufficient to put prison authorities on notice of the issues involved Johnson v. Killian, #10-4651,  2012 U.S. App. Lexis 9874 (2nd Cir.).

Prisoner Suicide

     A prisoner who had a long history of suicide attempts successfully hung himself to death. A federal appeals court ruled that the defendants, including an intake nurse, a psychology associate, and a number of guards were properly denied summary judgment in a lawsuit over the death, given that there were allegations that could support a finding of deliberate indifference. The nurse allegedly reviewed his file and failed to include his history of suicide from his transfer form. The psychology associate allegedly approved his placement in a special management unit, which the plaintiffs claimed did not provide adequate care. The guards were accused of not promptly summoning medical help when they found the prisoner hanging in his cell, with no pulse or breath. Estate of Miller v. Tobiasz, #11-3233, 2012 U.S. App. Lexis 10465 (7th Cir.).

Religion

     Because failure to grow a beard was considered a sin equivalent in severity to eating pork for a Muslim inmate, his lawsuit over a policy prohibiting him from growing a one-eighth inch beard stated a claim for violation of his right to religious freedom. Prison officials failed to adequately explain how their policy was justified by health or security concerns, or that they used the least restrictive means of satisfying a compelling governmental interest. Couch v. Jabe, #11-6560, 2012 U.S. App. Lexis 9602 (4th Cir.).

     A prisoner whose personal religious beliefs incorporated elements of Christianity, Islam, and Buddhism complained about the confiscation of over 30 books from his cell during shakedowns following a stabbing incident. He claimed many of the books were religious or spiritual. He also claimed that a prayer cap, prayer rug, prayer oil and religious beads were taken. His claims for injunctive relief were moot, in light of his subsequent transfer. He could not sue prison officials or employees in their official capacities for damages under 42 U.S.C. Sec. 1983 as they were state employees entitled to Eleventh Amendment immunity. Zajrael v. Harmon, #11–1180, 677 F.3d 353 (8th Cir. 2012).

Retaliation

     A prisoner sued correctional officers, claiming that they retaliated against him in violation of his First Amendment rights, transferring him to a higher security level facility because he participated in a class action lawsuit in state court on inmate property issues and aided other prisoners in filing grievances. The inmate's actions constituted protected activities, and were followed by an adverse event, his transfer. A federal appeals court upheld a trial court judgment in favor of two defendants found not to have engaged in unlawful retaliation but ordered further proceedings as to three other defendants to determine if they did. There was evidence that these three had been involved in the decision to make the transfer and may have been motivated by retaliatory motives. They had not adequately shown that they would have ordered the transfer in any event because of the inmate's "disruptive" behavior, as the record was devoid of any evidence of such behavior other than the protected activities and a memo written by a defendant whose bias was evident from her "acts of instructing other officers to fabricate misconduct tickets against him." The other two remaining defendants did not claim to have read that memo. King v. Zamiara, #09–2469, 2012 U.S. App. Lexis 10240, 2012 Fed. App. 146P (6th Cir.).

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     Prison Rape: "Final Rule to Prevent, Detect and Respond to Prison Rape," U.S. Department of Justice. (May 17, 2012). Press release. Also see the Executive Summary, the Regulatory Impact Assessment, which summarizes the costs and benefits of the rule, and the Presidential Memorandum.

     Prisoner Reentry: The National Reentry Resource Center: What Works in Reentry Clearinghouse, a joint project of the Urban Institute, the Council of State Governments, and the John Jay College of Criminal Justice Prisoner Reentry Institute.

     Private Prisons: "Prison Bed Profiteers: How Corporations Are Reshaping Criminal Justice in the United States," by Christopher Hartney and Caroline Glesmann, National Council on Crime & Delinquency (May 2012).

Reference:

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

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