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Death Penalty

     The lethal injection protocol adopted by California correctional officials was invalidated as it failed to substantially comply with requirements of the California Administrative Procedure Act (APA). The court enjoined the execution of any prisoner by lethal injection until new regulations were adopted that did comply with the procedural requirements of the statute.  Sims v. Department of Corrections & Rehabilitation, #A135290 2013 Cal. App. Lexis 424.

DNA Testing & Issues

     Officers who make a lawful arrest for a serious offense may take and analyze a cheek swab of the arrestee's DNA. Like fingerprinting and photographing, it is a legitimate police booking procedure that is reasonable under the Fourth Amendment. Maryland v. King, #12-207, 2013 U.S. Lexis 4165.

First Amendment

     A prisoner claimed that he had been disciplined in retaliation for writing a letter to fellow inmates asking them to work together in support of his class action lawsuit against prison administrators. He claimed that this violated his First and Fourteenth Amendment rights. Summary judgment was entered for the defendants on the First Amendment claims but summary judgment was entered for the prisoner on a due process claim. After a jury trial on damages at which the prisoner was awarded nominal and punitive damages, the parties reached a settlement providing that the prisoner would receive $11,000, plus attorneys' fees and costs. The prisoner then attempted to appeal the summary judgment against him on the First Amendment claim. The appeals court ruled that this issue was barred by the settlement agreement. Jones v. McDaniel, #10-16658, 2013 U.S. App. Lexis 11676 (9th Cir.).

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

     An intermediate California appeals court ruled that a prisoner had a First Amendment right to read a sexy violent werewolf thriller novel about a woman named Iris who kills werewolves every time there is a full moon, but then falls in love with one and is designated by a group of witches as the "chosen one," destined to save humanity. Prison officials had confiscated the novel, "The Silver Crown" by Mathilde Madden, (not to be confused with the same author's "The Silver Collar") as contraband. The appeals court judges reviewed the full 265 pages of the book and gave a two-page detailed plot summary. Rejecting the determination that the book was obscene and could be barred, the court relied on an expert witness university professor that the book had literary value. The judges also rejected the argument that the violence in the book was likely to incite prison violence, finding that it was no more violent than nightly television programming prisoners were allowed to watch or another book already in the prison library. In re Andres Martinez, #A134400, 2013 Cal. App. Lexis 430.

Prison and Jail Conditions: General

     A prisoner who served almost 28 months in a six-man cell claimed that conditions there constituted cruel and unusual punishment in violation of the Eighth Amendment. His claims were plausible that he was deprived of the minimal civilized measure of life's necessities and subjected him to unreasonable health and safety risks because of inadequate space and ventilation, stifling heat in summer and freezing cold in winter, unsanitary conditions, including urine and feces on the floor, too narrow a mattress, insufficient cleaning supplies, and noisy crowded conditions making sleep difficult and putting him at constant risk of violence from his cellmates. Claims against some defendants were rejected, but allowed to proceed against others, with qualified immunity issues to be resolved after further facts were determined. Walker v. Schult, #12-1806, 2013 U.S. App. Lexis 10397 (2nd Cir.).

Prison Litigation Reform Act: Consent Decrees

     A federal judge stated that a proposed wide-ranging consent decree was "the only way to overcome the years of stagnation that permitted [the prison] to remain an indelible stain on the community, and it will ensure that OPP inmates are treated in a manner that does not offend contemporary notions of human decency." The approved decree aims at remedying problems that led to years of rapes, suicides, violence, and other consequences of poor conditions at the Orleans Parish Prison in Louisiana. The decision notes that prisoners testified to being assaulted by fellow inmates, sometimes in the plain view of officers, and that there was evidence that some prisoners with mental health problems had been living in cells filled with feces. The decree mandates increased staffing and training, among other things, and continuing oversight of the facility's operations. The judge found that the decree was narrowly tailored to remedy unconstitutional conditions. Jones v. Gusman, #12-859 2013 U.S. Dist. Lexis 79684 (E.D. La.). Text of consent decree.

Prisoner Assault: By Officer

     A prisoner claimed he suffered injuries during a fight with officers that occurred because he refused to exit his cell. By the time he notified the prison of the incident and that a videotape "probably" existed, the tapes were recorded over. Besides an excessive force claim, he asserted a claim for spoiliation of evidence. The prisoner was denied appointed counsel as he was sufficiently competent to handle the straightforward claims himself. The prisoner lost at trial. A federal appeals court affirmed, and ruled that the prisoner failed to show that there was any duty to preserve the videotape, or that the recording was destroyed in bad faith. Bracey v. Grondin, #12-1644, 712 F.3d 1012 (7th Cir. 2013).

Probation

     A man who served 20 years for sexual assault was then placed on probation. A state court ruled that a sentencing order ordering probation after the 20-year sentence had been illegal, because the sentencing court lacked authority to suspend all of the additional 30-year sentence (5 years of which he would have had to serve) authorized by state law to be imposed on him after the 20 years as a persistent felony offender because of a prior burglary conviction. Strangely enough, in some respects, he now sought, on that basis, to collect damages against correctional authorities who had released him from prison years too early, placing him on probation. The federal appeals court rejected this argument, holding that prison officials had absolute immunity for liability for conduct dictated by facially valid court orders. Engebretson v. Mahoney, #10-35626, 2013 U.S. App. Lexis 10887 (9th Cir.).

Public Protection

     A man on parole from a Utah prison allegedly defrauded some people, and they, in turn, sued the state for negligent supervision, gross negligence, failure to warn, and negligent misrepresentation. The Utah Supreme Court found that the state was entitled to governmental immunity for injuries arising from deceit, in this case, the deceit of a third party. Van De Grift v. State, #20110994, 2013 UT 11, 299 P.3d 1043, 2013 Utah Lexis 12, 729 Utah Adv. 27.

Religion

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

     A prisoner sought $50,000 in damages because a lieutenant at a federal prison one evening denied him the religious meal he usually got under the Federal Bureau of Prison's Common Fare religious meal program. He was also denied a vegetarian meal, which he said would have satisfied him. A federal appeals court ruled that this one isolated incident did not reflect, either on the part of the lieutenant or the prison, a policy of refusing to provide religious or vegetarian meals and did not substantially burden his religious beliefs. The court further found that just missing one meal was not enough to shown an Eighth Amendment cruel and unusual punishment violation. Watkins v. Rogers, #13-6040, 2013 U.S. App. Lexis 9927 (10th Cir.).

Visitation

     An inmate sought money damages and injunctive relief, claiming that a two-year suspension of his visiting privileges after he was suspected of receiving contraband (marijuana) during a visit violated his First Amendment right of association, his Fourteenth Amendment procedural due process rights, and his Eighth Amendment right against cruel and unusual punishment. His claim for injunctive relief was moot as his visitation rights had already been restored. The warden was entitled to qualified immunity on money damages claims since his actions had not violated any clearly established right to visitation. The suspension of privileges was not arbitrary, and it was believed that he swallowed the drugs given to him by the visitor. No error was shown invalidating a jury verdict in favor of a guard on an excessive force claim. Williams v. Ozmint, #11-6940, 2013 U.S. App. Lexis 9754 (4th Cir.).

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     Compassionate Release: "The Federal Bureau of Prisons’ Compassionate Release Program," U.S. Department of Justice Office of the Inspector General Evaluation and Inspections Division (April 2013 I-2013-006).

     Hunger Strikes: Standard Operating Procedure: Medical Management of Detainees on Hunger Strike," Joint Task Force Guantanamo Bay, Cuba (March 5, 2013.

     Prison Rape and Sexual Misconduct: "Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12," by Allen Beck, Marcus Berzofsky, Rachel Caspar, and Christopher Krebs (NCJ 241399 May 16, 2013).

Reference:

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

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