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Access to Courts/Legal Info

     A prisoner suing pro se, claiming inadequate medical care, was entitled to be given a written notice as to what was required to defeat motions to dismiss and motions for summary judgment. Those notices must be served on him at the same time as the motions, in order to allow him "fair, timely and adequate notice" of what he is required to do to respond to those motions to preserve his claims. Notices served on him before such motions are filed do not sufficiently serve that purpose. Woods v. Carey, #09–15548, 684 F.3d 934 (9th Cir.).

Disability Discrimination: Prisoners

     A wheelchair-bound inmate may not be able to pursue an Americans with Disabilities Act (ADA) disability discrimination claim over a denial of outdoor recreation for seven weeks on the basis that not enough disabled prisoners (at least nine) requested it, since state officials may be immune from liability under the ADA. His claims did, however, state a viable claim under the Rehabilitation Act, since the prison was a recipient of federal funding, and outdoor recreation constituted a "program or activity" under the Act, which he could not be denied participation in on the basis of disability. Norfleet v. Walker, #11-2137, 684 F.3d 688 (7th Cir. 2012).

     An Illinois prisoner with hip problems, including necrosis, asserted viable disability discrimination claims under the Americans with Disabilities Act and the Rehabilitation Act based on his alleged disqualification from a work-release program (because he walked with a cane) and the lack of grab bars in the prison, which he claimed made it difficult for him to use the toilet and shower, to attend meals, or to work in the prison library on the same basis as other prisoners. While these problems did not violate the Eighth Amendment since he did manage to do many of these things, even if with difficulty, the failure to reasonably accommodate his disability could be unlawful discrimination. Limiting him to weekly showers was not an Eighth Amendment violation. Jaros v. Illinois Department of Corrections, #11-2567, 684 F.3d 667 (7th Cir. 2012).

First Amendment

     A prisoner convicted of terrorism-related crimes involving the 1998 bombing of the U.S. embassy in Kenya was subjected to special administrative measures forbidding him from receiving two Arabic language newspapers he had previously received and prohibiting him from corresponding with his nieces and nephews. A federal appeals court rejected a claim that these measures violated his First Amendment rights. The government's interestin restricting his rights was reasonably related to legitimate penological interests, and the prisoner had the burden of showing that there was no legitimate, rational basis for the increased communication restrictions. Given the belief that the prisoner had a "proclivity for violence" based on his conviction for acts of terrorism, the warden expressed the concern that “communications or contacts with persons could result in death or serious bodily injury to persons.” This was a rational basis for the restrictions. The restriction on the Arabic newspaper was similarly upheld as justified by the need to prevent him from receiving information and instructions in a manner difficult to detect. Al-Owhali v. Holder, #11-1274, 2012 U.S. App. Lexis 16401 (10th Cir.).

Medical Care

     The widow of a pretrial detainee at a county jail claimed that his death was due to the company with the contract for medical services there weaning him off alprazolam which he took for anxiety, in favor of other medication in its standard formulary. A federal appeals court held that the county might be liable for restricting physician access to him after he clearly was in distress, having drug withdrawal symptoms, having a seizure, and having his face turn blue. A site director nurse at the jail might also be liable for allegedly ignoring his medical needs, and moving him to an isolated padded cell, where he died. King v. Kramer, #11-2204, 680 F.3d 1013 (7th Cir. 2012).

     Three nurses who allegedly received but ignored medical requests concerning a prisoner from corrections officers and other inmates could be liable for his death from TB. They allegedly stated that the request for treatment had to be from the prisoner himself, but did nothing else until he had to be treated by a doctor on an emergency basis when he was "near death." Two other nurses, one whose only contact with the prisoner was at intake, and the other who misread his TB test, could not be held liable, nor could facility administrators or the county. McCaster v. Clausen, #11-2612, 684 F.3d 740 (8th Cir. 2012).

     The due process rights of a pretrial detainee were not denied when he was booked into a jail after business hours on Friday when it was too late for his request for prescription drugs for his back pain to be reviewed until Monday. He suffered a seizure shortly thereafter, but the delay in reviewing his medication request did not violate his constitutional rights, since the drugs at issue were not "life-sustaining." Bruederle v. Louisville Metro Government, #11-5637, 2012 U.S. App. Lexis 15180, 2012 Fed. App. 225P (6th Cir.).

Parole

     Virginia state law created a limited protected interest in being considered for parole but not in release on parole. A federal appeals court rejected the claim of eleven inmates serving sentences for violent offenses that their due process and ex post facto rights were violated by a supposed unwritten policy of denying prisoners like them parole. The parole board could consistently decide to exercise its discretion to deny parole to prisoners convicted of violent offenses without violating their rights. Burnette v. Fahey, #11-1324, 2012 U.S. App. Lexis 13925 (4th Cir.).

Race Discrimination

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

     A facially neutral job assignment policy that Black and Hispanic prisoners claimed resulted in racial discrimination against them could not be challenged as a violation of equal protection on the basis of its supposed "disparate impact." Individual state officials could not be sued for intentional racial discrimination on the basis of a "pattern-or-practice evidentiary framework," since that would not show which officials purportedly acted with a discriminatory purpose. Reynolds v. Barrett, #10-4208, 2012 U.S. App. Lexis 14201 (2nd Cir.).

Work/Education/Recreation Programs

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

     Forcing a pretrial detainee to work in a prison laundry under threat of legal process and physical restraint in "the hole" could constitute "involuntary servitude" in violation of the Thirteenth Amendment. Defendant prison officials were not entitled to qualified immunity and could not defend such actions on the basis that work could have a rehabilitative effect, since it was clearly established that they had no right to attempt to "rehabilitate" pre-trial detainees, who have not been convicted of any crime. McGarry v. Pallito, #10-669, 2012 U.S. App. Lexis16253 (2nd Cir.).

     Editor's note: For more on this issue, see Prisoner Work Programs, 2008 (8) AELE Mo. L.J. 301.

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     Immigration Prisoners: "Immigration Offenders in the Federal Justice System," Mark Motivans, Ph.D, July 18, 2012 NCJ 238581

     Prisoner Reentry: "Exploring the Role of the Police in Prisoner Reentry," by Jeremy Travis, Ronald Davis and Sarah Lawrence, National Institute of Justice (2012).

Reference:

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

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