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Death Penalty

     A prisoner was sentenced to death after being convicted of murder, kidnapping, and rape. He challenged Missouri's lethal injection method as violating his Eighth Amendment rights. A federal appeals court found that he could proceed with that claim because it was not "patently obvious" that he could not prevail on his claim that his serious medical condition (cavernous hemangioma) created a unique risk that the lethal injection would result in excruciating pain, amounting to cruel and unusual punishment. There was also support for his assertion that the state unreasonably refused to change its regular method of execution to a "feasible, readily implemented" alternative that would "significantly reduce" the substantial risk of pain. Bucklew v. Lombardi, #14-2163, 2015 U.S. App. Lexis 3549 (8th Cir.).

DNA

     A rape victim and another witness identified a man as her assailant. While the police collected a rape kit with pubic and head hair and swabs, it was not tested for DNA, and the man was convicted. Years later, the kit was tested under court order, and it was determined that it contained no testable spermatozoa. Still later, based on a new law, the man sought further testing, claiming that new technology enabled testing of samples previously deemed inadequate. The kit could not be found, and the prosecutor's office indicated that it must have been destroyed, pointing both to an earlier fire and a practice of the property clerk of destroying records after six years. Years later on, the evidence was found, tested, and it was determined that the DNA did not match the man, and his conviction was vacated. In a lawsuit claiming that an inadequate evidence system had deprived him of due process and access to the courts, a federal appeals court overturned a trial court order setting aside an $18 million verdict in the plaintiff's favor against the city. It held that, under New York law, a convicted prisoner has a liberty interest in demonstrating his innocence with newly available DNA evidence and is entitled to reasonable procedures that facilitate him vindicating that interest. There was evidence that the police department's failure to adequately track evidence was pervasive. The jury's verdict on the due process claim was reinstated, and, on remand, further proceedings were ordered on the plaintiff's First Amendment claim for denial of his right of access to the courts. Newton v. City of New York, #11-2610, 2015 U.S. App. Lexis 2835 (2nd Cir.)

First Amendment

     A federal trial court has declined to dismiss a lawsuit filed by the ACLU, other advocacy groups, journalists, and a prisoner incarcerated for the murder of a police officer as well as four other prisoners, challenging the constitutionality of a Pennsylvania law, the Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304, which authorizes the state's Attorney General, local prosecutors, and the victims (including families) of personal injury crimes to bring civil actions seeking to enjoin conduct by an offender "which perpetuates the continuing effect of the crime on the victim," as well as recover attorneys' fees. The law was enacted in response to a college's selection of plaintiff Mumia Abu-Jamal, convicted of the murder of a police officer, as its commencement speaker. The speech was delivered via a recording. The lawsuit asserts that the statute violates the First Amendment rights of offenders, as well as of others to hear their speech. The court ruled that the plaintiffs have standing to sue the state Attorney General, as she had not said that she would not seek to enforce the law, making it credible that it might be applied against some of the plaintiffs. A District Attorney who stated that he would not seek to enforce the statute pending a court determination of its constitutionality, however, was dismissed as a defendant. Abu Jamal v. Kane, #1:14-cv-2148, 2015 U.S. Dist. Lexis 27633 (M.D. Pa.).

Medical Care

     A prisoner reported symptoms of constipation and gas and received treatment for those problems for about two weeks, after which he suffered a bowel obstruction and perforation, requiring emergency surgery to repair his bowel and install a colostomy bag. Rejecting a federal civil rights claim for inadequate medical care, a federal appeals court agreed that the prisoner had shown that the medical staff had failed to properly diagnose his bowel obstruction and that the failure to treat it led to the bowel perforation, but he failed to show that they acted with deliberate indifference to a known serious medical problem. Allard v. Baldwin, #14-1087, 2015 U.S. App. Lexis 3503 (8th Cir.).

Medical Care: Mental Health

     A federal prisoner serving a felony sentence challenged her civil commitment under 18 U.S.C. Sec. 4245, claiming that the statutory preponderance of the evidence standard applied to civil commitment of prisoners by the statute violated due process, which she argued required clear and convincing evidence for civil commitment. Rejecting this argument, a federal appeals court stated that clear and convincing evidence is indeed needed for the indefinite commitment of a person with mental illness who is an ordinary citizen, but that it did not violate due process for Congress to apply a different standard to an incarcerated felon. While prisoners still have interests in not being confined to mental hospitals, they "have lost their right to freedom from confinement as a result of their convictions. Sealed Appellee v. Sealed Appellant, #14-10274, 2014 U.S. App. Lexis ___ (5th Cir.).

Prison Litigation Reform Act: Injunctions

     The federal government filed a lawsuit against Florida correctional officials, alleging that a failure to provide kosher meals to all prisoners with a sincere religious belief in keeping kosher was a substantial burden on those prisoners' religious freedom rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. After the trial court denied the defendants' motion to dismiss, the state issued a new policy on religious diets, spelling out the criteria for qualifying for kosher meals. The court then issued an injunction requiring the providing of the kosher meals program and prevented the state from enforcing the eligibility requirements. The injunctive order, however, did not mention the need-narrowness-intrusiveness criteria for preliminary injunctions mandated by the Prison Litigation Reform Act. Subsequently, the court did not finalize the injunctive order within 90 days, as a result of which the preliminary injunction expired by operation of law in early March of 2014. This rendered the state's appeal from the order moot, and an exception to mootness for orders capable of repetition, yet evading review, did not apply because the state of Florida had not shown a probability that future such injunctive orders on the subject would evade review. United States v. Sec'y, Florida Dept. of Corrections, #14-10086, 2015 U.S. App. Lexis 3148 (11th Cir.).

Prisoner Death/Injury

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

     Corizon Health, a private medical firm which services more than 345,000 inmates in 27 states, along with a California county, reached a settlement in a lawsuit based on the death of a man detained in the county jail for failing to appear in court on a warrant for drunken driving after being arrested for jaywalking. The decedent's family claimed that the firm's employees failed to properly diagnose the detainee, who was suffering from alcohol withdrawal (delirium tremens with hallucinations) and had allegedly been beaten by 10 deputies at the jail, as well as shocked with a Taser in the dart mode, first for two cycles or ten seconds, and then for at least 27 more seconds in five separate sessions. The lawsuit further claims that the detainee should have been hospitalized for the alcohol withdrawal. The defendants agreed to pay $8.3 million to the family. The private medical firm also agreed to stop using licensed vocational nurses to perform work intended for registered nurses, a practice that allegedly had saved the company 35% in labor costs. An unsupervised licensed vocational nurse, instead of an RN, did the medical screening of the decedent when he was placed in custody at the jail. The county sheriff stated that the decedent had, before his death, attacked jail officers, after acting erratically, making a mess of his cell, breaking food trays, screaming, and blocking a toilet. The county previously entered into a separate $1 million settlement with one of the deceased detainee's minor children. Harrison v. Alameda County and Corizon Health Care, Inc., #3:11-cv-02868, U.S. Dist. Ct., (N.D. Cal. February 27, 2015). Prior decisions in the case are M.H. v. County of Alameda, #11-cv-02868, 2012 U.S. Dist. Lexis 6412 (N.D. Cal.), and M.H. v. County of Alameda, #11-cv-02868, 2013 U.S. Dist. Lexis 55902 (N.D. Cal.).

Prisoner Discipline

     When a prisoner performed a one-day work assignment of construction work in the crawl space of a parole office near the prison, he was charged with and then punished following a disciplinary hearing for attempting to traffic tobacco. His punishment included the loss of 60 days of good time credit, and demotion in his credit class, making it more difficult for him to earn good time credits. He was also assigned to 20 extra hours of work and denied commissary privileges for 25 days. The evidence in the hearing consisted of a guard's statement that various items of tobacco were found in the crawl space the prisoner had been assigned to work in. A federal appeals court reversed a finding that the evidence, while "scanty," was sufficient to establish constructive possession of tobacco. The appeals court ruled that the prisoner had been convicted without evidence of guilt, violating his right to due process of law. Austin v. Pazera, #14-2574, 2015 U.S. App. Lexis 2608 (7th Cir.).

Retaliation

     A prisoner claimed that he had been granted parole but that it was rescinded because he was facing pending disciplinary charges and had been placed in a restrictive housing unit as a result. He claimed that these actions were retaliatory for having filed a grievance against an officer. These actions did not violate his due process rights because the misconduct determinations, his time placed in the restrictive housing unit, and his parole recission, did not, either alone or in combination, create an atypical and significant hardship in relation to the ordinary incidents of prison life. But the prisoner did adequately allege a retaliation claim against a particular officer by claiming that when he refused to confess to a particular charge and instead filed a grievance against this officer, he was placed in administrative custody in retaliation. Fantone v. Latini, #13-3611, 2015 U.S. App. Lexis 2470 (3rd Cir.).

Sex Offenders

     A federal appeals court found no error in summary judgment granted to prison officials rejecting a prisoner's claim that they violated his procedural due process rights by classifying him as a sex offender, although he had committed no crime requiring him to register as such. He was classified as a sex offender based on an assessment of the risk that he would commit such crimes, given the types of crimes he had committed. That classification did not implicate his liberty interests under the due process clause and the individual defendants, further, were entitled to qualified immunity from liability. Toney v. Owens, #14-50331, 2015 U.S. App. Lexis 2863 (5th Cir.).

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     Federal Prisons: Conflict Resolution Policy, Federal Bureau of Prisons, Program Statement 3713.28 (Feb. 23, 2015).

     Federal Prisons: Transfer of Inmates to State Agents For Production on State Writs, Program Statement 5875.13 (Feb. 20, 2015).

     State Prison Policies: North Carolina Department of Public Safety, Prisons Policy & Procedure Manual.

  Reference:

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

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