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Chemical Agents

     An inmate got involved in a fight with officers who were taking him to administrative segregation. The officers used pepper spray on him, threw him on the floor and put leg restraints on him, and one of them allegedly turned his left wrist upward in a sharp motion, dislocating it. He claimed that the use of force had continued against him at a time when he was not resisting. The court found that the officers were entitled to qualified immunity on the excessive force claims, but not on the claim that one of them acted with deliberate indifference in delaying allowing him to wash off the pepper spray. Claims against one officer for alleged retaliatory death threats were also allowed to go forward, Santiago v. Blair, #11-3693, 2012 U.S. App. Lexis 26854 (8th Cir.).

Disability Discrimination: Employees

     A correctional clerical employee's job involved looking for coded gang messages in inmate mail. She filed a lawsuit under Americans with Disabilities Act (ADA), 42 U.S.C. 12112(a), and the Family Medical Leave Act (FMLA), 29 U.S.C. 2612(a)(1)(D), claiming that her allergic reaction to the use of scented candles and wall plug-ins around her work area constituted a disability. A federal appeals court held that this did not qualify as a disability under the ADA and that her employer had not received her FMLA certification before an applicable deadline, so that her rights under that statute were not violated. Milton v. Texas Dept. of Criminal Justice, #12-20034, 2013 U.S. App. Lexis 4177 (5th Cir.).

Female Prisoners

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

     A pregnant woman was being held as an immigration detainee and classified as a medium-security inmate. She was restrained and shackled prior to giving birth and claimed that this violated her rights. A federal trial court granted her summary judgment on liability and a jury awarded her $200,000 in damages. A federal appeals court reversed, finding that summary judgment on liability had been improper. There were genuine material factual issues as to whether she had been shown to be a flight risk, as well as conflicting expert testimony about the alleged negative effects of shackling on pregnant inmates. It was also not established whether or not the officers involved in her restraint had any knowledge about a no restraint order. Villegas v. Metro. Gov't of Nashville & Davidson Cty., #11-6031, 2013 U.S. App. Lexis 4382, 2013 Fed. App. 59P (6th Cir.).

     Editor's Note: For more on this issue, see Shackling of Pregnant Prisoners, 2009 (12) AELE Mo. L. J. 301.

Inmate Funds

     A prisoner convicted of a number of crimes, including arson, was a public employee, and entitled to a state pension, which his wife was collecting under a power of attorney. A lawsuit was filed seeking to have the pension payments diverted to his inmate account under the "Son of Sam Law," so that they could be frozen and made available to satisfy any judgment his victims might later obtain in lawsuits. New York's highest court declined to uphold an order for the diverting of the payments, since the plaintiff in the lawsuit failed to properly preserve the argument that the Son of Sam Law superseded a state statute that provides that pensions are not subject to attachment or garnishment. In the Matter of New York State Office of Victim Services v. Raucci, #6, 2013 N.Y. Lexis 130, 2013 NY Slip Op 01018.

Medical Care

     A prisoner claimed that a persistent pain in his shoulder came from an injury which an MRI would detect, pointing the way to a successful treatment. He claimed that the refusal to do an MRI constituted deliberate indifference to his serious medical needs. His treating physician, however, believed that the pain came from arthritis and that an MRI would not help any in diagnosis and treatment. A federal appeals court upheld a ruling that there had been no deliberate indifference, since the prisoner had been frequiently examined, x-rays had been taken, pain killers had been prescribed, and he had been assigned to a lower bunk to accommodate his condition. There was no objective deliberate indifference, so the plaintiff's claim that the doctor had subjective antipathy towards him was irrelevant. Ray v. Wexford Health Sources, Inc., #12-1774. (7th Cir.).

Prisoner Discipline

     A prisoner was disciplined and sanctioned with the forfeiture of 40 days of good time credit and 60 days in disciplinary segregation when a shank was found in his two-inmate cell. He claimed that the weapon was not his. Because each prisoner in the cell was responsible for keeping the cell free of contraband, he could properly be found to have been in constructive possession of the weapon. The mere discovery of the shank in the cell constituted "some evidence" that both prisoners in the cell possessed it, and that was sufficient to uphold the discipline. Denny v. Schultz, # 11-1450, 2013 U.S. App. Lexis 3235 (3rd Cir.).

Religion

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

     California prisons employ full-time and part-time chaplains of five religions: Catholic, Protestant, Jewish, Muslim, and Native American. Inmates who are adherents of the Wiccan religion claimed that their rights were violated by refusing to hire a full-time paid Wiccan chaplain, and by failing to apply neutral criteria in determining whether paid chaplains were needed to serve the needs of inmates who practiced religions outside of the five faiths currently favored, A federal appeals court rejected the prisoners'  First Amendment religious freedom claims as it was well established that they were not entitled to a chaplain of their choice. Their equal protection claim was rejected as a volunteer Wiccan chaplain currently provided services. But the court found that the prisoners' assertion that the policy in place improperly favored the five faiths in violation of the Establishment of Religion clause of the First Amendment and the California state Constitution stated a viable claim. Hartmann v. California Dept. of Corrections, #11-16008, 2013 U.S. App. Lexis 3385 (9th Cir.).

Sexual Assault

     A female former prisoner claimed that her instructor at the facility engaged in unlawful sexual acts with her and got her pregnant. A federal appeals court found that her lawsuit adequately stated a claim against a former warden for allegedly creating and allowing a policy or culture of sexual misconduct to exist at the facility, and failed to take reasonable measures to abate it. There were facts cited from an audit report that could support a conclusion that the ex-warden had been aware of multiple incidents of unlawful sexual conduct at the facility, and that the discipline surrounding such incidents was inconsistent. She adequately alleged facts that would tend to show structural policy problems that contributed to the alleged unlawful sexual conduct. Keith v. Koerner, #12-3101, 2013 U.S. App. Lexis 2924 (10th Cir.).

Sex Offenders

     New York prisoners who were civilly committed for being sexually violent predators after their criminal sentences expired under a new initiative claimed that their due process rights were violated and that they were not given an opportunity for a hearing or notice before their commitment began. A federal appeals court upheld the denial of qualified immunity for the defendant officials. The general principle that due process requires a pre-deprivation hearing absent an immediate danger to society was well established. Bailey v. Pataki, #10-2563, 2013 U.S. App. Lexis 3200 (2nd Cir.).

Work/Education/Recreation Programs

     A prisoner claimed that his Thirteenth Amendment rights against involuntary servitude were violated by prison officials refusing to pay him wages he earned in his prison job, as well as allegedly failing to require all inmates to work and discriminating against white inmates in favor of black inmates and "illegal aliens from Mexico." His Thirteenth Amendment claims were properly dismissed because a habeas corpus action was not the proper method of raising claims challenging the conditions of his confinement. Luedtke v. Berkebile, #12-5656, 2013 U.S. App. Lexis 1031, 2013 Fed. App. 0020P (6th Cir.).

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

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     Female Prisoners: "The Changing Racial Dynamics of Women's Incarceration," by Marc Mauer (The Sentencing Project, February 2013).

     Prisoner Reentry: "The National Institute of Justice's Evaluation of Second Chance Act Adult Reentry Courts: Program Characteristics and Preliminary Themes from Year 1," by Christine Lindquist, Jennifer Hardison Walters, Michael Rempel, and Shannon M. Carey. Document No.: 241400 (March 2013).

Reference:

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

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