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     A federal appeals court agreed with a prisoner's contention that, in cases where an untimely motion in a federal civil rights case could be shown to have been caused by a mail delay within a prison, the motion would be considered timely. In this case, his underlying claim, that defendants conspired to obtain a murder conviction against him through the use of false evidence and deliberately preventing him from obtaining DNA evidence that would have shown his innocence, was barred by the fact that his conviction had not been set aside. Long v. Atlantic City Police Dep't, #06-4732, 670 F.3d 436 (3rd Cir.).

Employment Issues

     A New Jersey jury awarded $6.8 million in damages to two senior white corrections officers who claimed that they were subjected to reverse racial discrimination and harassment by African-American supervisors. They claimed that part of the purpose had been to deny them overtime and secure more overtime for African-American officers. The harassment asserted included the filing of false disciplinary reports, and the jury found that the Department of Corrections violated a state anti-discrimination law by transferring the two white officers and failed to take action to address complaints about hostility directed against them and other white officers at a facility for non-violent offenders. The award included $3 million dollars to each officer for punitive damages, as well as compensation for lost pay and pain and suffering. Milutin and Healey v. New Jersey State Department of Corrections, state court, Mercer County, Trenton, N.J., reported in Newark Star-Ledger. Sept. 10, 2012.

Medical Care

     A man arrested and allegedly detained in a county jail for nine days without formal charges claimed that he was improperly denied access to Oxycontin for his pain caused by his Klippel-Trenaunay Syndrome. That medication had been prescribed by his regular doctor. Jail medical personnel substituted other pain medication that was non-narcotic. The detainee failed to show that this was a substantial violation from accepted professional medical standards or that jail nurses acted with deliberate indifference in following a jail doctor's instructions. A due process claim for his detention failed as he was brought before a court within 72 hours of his arrest, held without bail pursuant to a court order, and was released when the prosecutor failed to file formal charges within the time allowed by the court. Holloway v. Delaware County Sheriff, #12-2592, 2012 U.S. App. Lexis 23823 ((7th Cir.).

     A jury awarded a prisoner's estate $1.734 million after he died from allegedly inadequately treated penile cancer. An intermediate California appeals court reversed that decision, finding that the state was immune from liability under state law, since the allegations amounted to medical malpractice rather than failure to summon needed medical assistance. The prisoner was assessed by a doctor and nurse, diagnosed as having cancer, and referred for further treatment including a biopsy and medication. Their failure to provide further treatment, to monitor his progress, or to follow up on his prognosis, all involved the reasonableness of the medical treatment provided, for which the state was immune. Castaneda v. Dept. of Corr. & Rehab., #B229246, 207 Cal. App. 4th 1488, 144 Cal. Rptr. 3d 641, 2012 Cal. App. Lexis 839.

Medical Records

     The highest court in New York overturned the quashing of a subpoena duces tecum that the N.Y. State Commission of Corrections issued to a hospital demanding that it produce its medical records regarding the care and treatment of an inmate in the custody of New York City who subsequently died. An exception to doctor-patient privilege was necessary for the Commission to carry out its legislated responsibilities and powers to investigate inmate deaths through its Medical Review Board. The disclosure of the records was also not barred by the Health Insurance Portability and Accountability Act privacy rules. Matter of New York City Health and Hospitals Corp., #64, 19 N.Y.3d 239, 969 N.E.2d 765 (2012).

Prisoner Classification

     A prisoner serving two consecutive sentences for conspiracy to distribute heroin and for possession of a prohibited object challenged the determination of the Federal Bureau of Prisons that, given his history, his placement in a halfway house for 5-6 months prior to his release at the end of his sentence was adequate, despite legislation that empowered them to place him there for up to 12 months. The determination was not an abuse of discretion and did not fail to comply with 42 U.S.C. § 17541, the Federal prisoner reentry initiative. Vasquez v. Strada, #12-1114, 684 F.3d 431 (3rd Cir. 2012).

Probation

     A man convicted of attempted sexual abuse of an unconscious 16-year-old intoxicated girl was ordered, as a special condition of his supervised release, on probation not to reside with, or be in the company of, any child under age 18, including his own daughters, and not to socialize with or date anyone with such children, including his own fiancée. A federal appeals court vacated that condition, ordering further proceedings. The fundamental right to associate with one's family is a particularly significant liberty interest and the condition was imposed without making any explicit findings supported by evidence that the condition was necessary for deterrence, protection of the public and rehabilitation, and were not broader than necessary. As there was no evidence in the record supporting the need for such restrictions, the special condition at issue could not be reimposed on remand. The court below could consider whether it was necessary to impose similarly but more narrow restrictions. U.S. v. Wolf Child, #11-30241, 699 F.3d 1082 (9th Cir. 2012).

Religion

     The trial court should not have dismissed the claim of a prisoner that denial of his request for a conjugal visit with his wife violated his rights to religious freedom under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. by interfering with important provisions of his Islamic faith requiring him to marry, consummate his marriage, and attempt to father children. His claim, stemming from the denial of this request in 2008, was not time barred despite the earlier denial, under the same regulation of a similar request relating to his first wife in 2002. Pouncil v. Tilton, #10-16881 2012 U.S. App. Lexis 24039 (9th Cir.).

Sexual Assault

     Three female inmates who had been confined to a county substance abuse treatment facility could not pursue premises liability claims against the state based on alleged sexual assaults by officers because of state law immunity for liability for the intentional torts of employees. The Texas Supreme Court rejected arguments that the immunity was waived because the officers allegedly made use of tangible property such as a laundry room or cart to carry out the assaults. There was no claim that the property was inherently unsafe, and the officers allegedly used it intentionally to carry out the assaults, so such use was within the immunity of the state and its agencies for intentional wrongdoing by employees. Texas Dep't of Criminal Justice v. Campos, #11-0728, 2012 Tex. Lexis 900, 56 Tex. Sup. Ct. J. 75

Sex Offenders

     A federal trial court has struck down a Nebraska state law barring registered sex offenders from using the Internet for most purposes, including social media. The court said that by severely limiting "even benign" uses of the Internet, the law raised First Amendment, due process, Fourth Amendment and ex post facto issues. The law, the judge found, did not leave open ample alternative channels for communication of information. A portion of the statute that applied to those registered as sex offenders but who were not on probation, parole, or court monitored supervision violated the Fourth Amendment. The court said the law wrongly bars offenders "from using an enormous portion of the Internet to engage inexpressive activity." and "potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors." Further, the law "is not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services. The risk posited by the statute is far too speculative when judged against the First Amendment." Doe v. State of Nebraska, #8:09CV456, 2012 U.S. Dist. Lexis 148770 (D. Neb).

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      Department of Justice Document: DoJ Inspector General's "Memorandum on Performance Challenges: National Security, Cyber Security, Federal Prisons, Protecting Civil Rights, Fraud and Financial Offenses" (11-7-2012).

     Juvenile Offenders: "In Focus: Disproportionate Minority Contact," Office of Juvenile Justice and Delinquency Prevention, U.S. Dept. of Justice (Nov. 2012).

     Statistics: "Probation and Parole in the United States, 2011," by Laura M. Maruschak and Erika Parks (November 29, 2012 NCJ 239686).

     Statistics: "State Corrections Expenditures, FY 1982-2010," by Tracey Kyckelhahn (December 10, 2012 NCJ 239672).

Reference:

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

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