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Death Penalty

     Prisoners on death row in Missouri challenged the constitutionality of the state's lethal-injection protocol, which was altered to use a single drug rather than a combination of three (an anesthetic, a paralyzing agent, and a drug to stop the heart) when the first drug became unavailable. While the challenge was pending, the protocol was revised from the drug propofol to compounded pentobarbital, and the plaintiffs amended their complaint to allege that the new drug constituted cruel and unusual punishment and that the defendants were deliberately indifferent to their medical need for their executions not to inflict gratuitous pain. The plaintiffs failed to meet their burden of showing that the use of the drug rose to the level of "sure or very likely" to cause serious harm or severe pain. They also failed to show that they had a First Amendment right to disclosure of information about the identities of the pharmacy that compounds the drug and its suppliers. Zink v. Lombardi, #14-2220, 2015 U.S. App. Lexis 3550 (8th Cir.).

False Imprisonment

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

     A D.C. prisoner was incarcerated for over two decades in both federal and state prisons on a conviction for raping and robbing a woman in 1981 when he was 18. After his parole, he was required to register as a sex offender, limiting his employment, housing, and other opportunities. During his incarceration, he suffered multiple instances of several sexual and physical assaults, and contracted HIV. In 2012, at the age of 50, he was exonerated and determined to be actually innocent of the robbery and rape, based on DNA evidence. He reached a settlement of claims against the federal government under the Unjust Convictions Act, 28 U.S.C. Secs. 1495 and 2513, and the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. of $1,128,082.19, based on $50,000 times the 22.56 years he was incarcerated. Continuing to pursue his claims against the District of Columbia under the D.C. Unjust Imprisonment Act, D.C. Code Sec. 2-421 et. seq., he was awarded $9,154,500 in damages for wrongful conviction, unjust imprisonment, sexual and physical assaults, contracting HIV, lost income, and physical and psychological injuries. A D.C. court found that his wrongful conviction and unjust imprisonment had been a proximate cause of all these damages. It also rejected an argument that D.C. was entitled to an offset from the award for the amount of the plaintiff's settlement with the federal government. Odom v. District of Columbia, #2013-CA-3239, 2015 D.C. Super. Lexis 2.

     An Illinois prisoner claimed that the amount of time he had served prior to being sentenced was improperly calculated, resulting in him not being given sufficient credit for time served, and therefore being incarcerated for an extra four months. He sued the county sheriff and the court clerk, claiming that they were negligent in calculating and forwarding the information. The Illinois Supreme Court ruled that the prisoner did have a private right of action against the sheriff for incorrectly calculating the time served, even though the statute did not explicitly grant one. An implied right was found as necessary to provide an adequate remedy. While the statute only imposed on the court clerk the duty to accurately forward to the Department of Corrections the information received from the sheriff, the dismissal of claims against the clerk was without prejudice to the possibility that the plaintiff could amend his complaint to still state a claim against the clerk. Cowper v. Nyberg, 2015 IL 117811, 2015 Ill. Lexis 319.

Filing Fees

     A plaintiff prisoner who filed three separate lawsuits against prison officials had his status of proceeding as a pauper revoked because he had received around $6,000 in past-due Social Security benefits that he had not reported to the court. That revocation was improper, however, since the federal No Social Security Benefits for Prisoners Act of 2009, 42 U.S.C. 404(a)(1)(B)(ii), barred him from accessing those funds while incarcerated, so he could not have used them to pay filing fees. The fact that he later, after the complaints were filed, also received separate deposits totaling $350 into his prisoner trust account and spent $243.11 of the money on consumer goods (which were arguably not necessities) rather than filing fees did not alter the result. He was only required to report his available assets at the time that he filed the lawsuits to qualify to proceed as a pauper, and his later receipt of additional funds did not render him ineligible. There was no indication that he did not make the required installment payments of 20% of the income in his trust account in the months he received the additional deposits. Arzuaga v. Quiros, #13-4586, 2015 U.S. App. Lexis 4544 (2nd Cir.).

Medical Care

     A prisoner who was allegedly injured during a violent scuffle with correctional officers sued two prison staff nurses for deliberate indifference to his serious medical problems. The nurses were improperly granted summary judgment, as the prisoner claimed that he told them that he was in pain and that his jaw was broken. If that were true, it would be obvious even to a lay person that they should have at least examined his jaw. There were disputed factual issues as to whether he had, at the time, been barely able to speak or open his mouth. Perry v. Roy, #14-1466, 2015 U.S. App. Lexis 5403 (1st Cir.).

Officer Assault: By Inmates

     A South Carolina prison guard was attacked and shot multiple times in his home, with the attack ordered by an inmate at the prison where he worked, using a contraband cell phone to talk to the shooter. The injured guard and his wife sued a number of cellular phone service providers and owners of cell phone towers in state court, asserting claims for negligence and loss of consortium. The lawsuit was removed to federal court, and claimed that the defendants were aware that their services and towers facilitated prisoners' illegal use of cell phones, creating an unreasonable risk of harm to others, including the plaintiff. A federal appeals court found that the trial court was erroneous in finding that there was federal question of jurisdiction over the claims, as the Federal Communication Act did not completely preempt the state law claims. The case was properly removed to federal court on the basis of diversity jurisdiction, but the plaintiffs failed to state a claim as a matter of law, since there was insufficient information about the specifics of what occurred. The plaintiffs did not identify the wireless service provider who carried the alleged call or when the alleged call occurred. "A wireless service provider would likely be unable to determine whether it carried the alleged call without more identifying information." If further investigation revealed new information, the plaintiffs were free to file a new lawsuit, but currently, the complaint "resembles a prohibited fishing expedition rather than a properly pleaded complaint." Johnson v. American Towers, LLC, #13-1872, 2015 U.S. App. Lexis 4844 (4th Cir.).

Prisoner Assault: By Officers

     In a prisoner's lawsuit claiming that prison guards used excessive force against him, a jury returned a verdict for the defendants. A federal appeals court reversed and remanded for a new trial as the trial judge had abused her discretion by allowing three prisoner witnesses to refuse to answer the plaintiff's questions simply because they were unwilling to testify, and failing to even explain, on the record, why she believed that efforts to compel them to testify would have been futile. Allowing witnesses to opt out of testifying deprived the plaintiff of a chance to corroborate his version of the incident, and eyewitness testimony was critical in doing so. The trial judge's error was not harmless as it could not be said that it was more probable than not that the jury was unaffected by it. When necessary and material witnesses refuse to testify, a trial judge must try to encourage them to testify unless some constitutional, statutory, or common-law rule bars the testimony, or, at a minimum, explain on the record why she did not do so. Barnett v. Norman, #13-15234, 2015 U.S. App. Lexis 5145 (9th Cir.).

Segregation: Administrative

     A trial court granted summary judgment to a Virginia death row prisoner enjoining prison officials to either improve his conditions of confinement or provide him with an individualized classification determination for his prison housing. A federal appeals court reversed, finding that the mere presence of harsh and atypical confinement conditions, by themselves, do not give rise to a liberty interest in avoiding them. Further, in the circumstances of the case, where state law mandates the conditions of confinement to be imposed on prisoners convicted of certain crimes and receiving certain sentences, such as housing on death row for those sentenced to death, those conditions of confinement are, by definition, "ordinary incidents of prison life" for those prisoners. No violation was shown of the plaintiff's procedural due process rights. Prieto v. Clarke, #13-8021, 780 F.3d 245 (4th Cir. 2015).

Sexual Assault

     A prisoner claimed that he had been repeatedly sexually and physically assaulted by his cellmate and the cellmate's gang associates, that he lodged multiple complaints about this, but that six prison officials acted with deliberate indifference to a substantial risk of injury to him. The trial court ruled that his claims failed because the defendant officials did not actually know about the risk. A federal appeals court vacated this judgment as to three defendants, ordering reconsideration. The appeals court stated that the subjective "actual knowledge required for a finding of deliberate indifference can be proved by "circumstantial" evidence, and that prison officials can be held liable when a risk is "so obvious" that it had to be known. The plaintiff was a short, middle-aged prisoner with both mental and physical problems that made him vulnerable to attacks and harassment. Since the trial court applied the wrong legal framework in considering this, further proceedings were required. The prisoner failed to preserve his objection to the dismissal of his claims against three other defendants. Makdessi v. Lt. Fields, #13-7606, 2015 U.S. App. Lexis 3883 (4th Cir.).

Strip Search: Prisoners

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

     A prisoner claimed that it amounted to an unjustified and humiliating strip search in violation of the Fourth and Eighth Amendments when he was allegedly forced to wear a see-through jumpsuit that exposed his genitals and buttocks while being transported from a county jail to a state prison. A federal appeals court ruled that the prisoner stated a plausible Eighth Amendment claim that the jail's requirement that he wear this garment during transport had no legitimate correctional purpose, but was only used to humiliate him and inflict psychological pain. As a convicted prisoner, however, he could not proceed on his claim that the requirement of the garment constituted an unreasonable search in violation of the Fourth Amendment. The prisoner's allegedly failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act did not bar the lawsuit, as his transfer to state prison made it impossible for him to exhaust the jail's grievance procedures, so there were no available remedies for him to exhaust. King v. McCarty, #13-1769, 2015 U.S. App. Lexis 5008 (7th Cir.).

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     Federal Prison Policies: Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c), Federal Bureau of Prisons Program Statement 5050.49 CN-1 (March 25, 2015).

     Federal Prison Policies: Reduction in Sentence (RIS) Criteria for Elderly Inmates with Medical Conditions, Federal Bureau of Prisons Program Statement 002-2015 (March 25, 2015).

  Reference:

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

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