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     A Wisconsin prisoner sought state post-conviction relief from his criminal conviction, which was denied by the state trial court and intermediate appeals court. He applied for a loan from the prison under a state law allowing inmates to borrow up to $100 annually for the cost of paper, photocopying, and postage, intending to use it to further appeal to the Wisconsin Supreme Court. The prison business office denied the request. The prisoner sought federal habeas relief, claiming that the allegedly wrongful denial of his loan request, which he asserted he had been eligible for, prevented him from pursuing his claim in the state supreme court. A federal appeals court upheld a rejection of the argument that the denial of the loan should excuse his procedural default in failing to follow through with his claim in the state supreme court. A federal court could not excuse such a procedural default based on its own interpretation of a state prison policy without guidance from state courts. The plaintiff also failed to show that the denial of his loan request was an objective, external impediment to his compliance with the state court's procedural requirements, and it appeared that he had funds available to pursue his claim even without the loan. Johnson v. Foster, #13-2008, 2015 U.S. App. Lexis 7516 (7th Cir.).

Medical Care

     A prisoner suffered symptoms of acute appendicitis, and was sent to a hospital emergency room the following day based on the recommendation of the prison doctor. The officer who accompanied the prisoner initially refused to remove his restraints, allegedly causing a 45 minute delay in treatment. The prisoner allegedly suffered nerve damage to his leg during the surgery, and the prison doctor allegedly subsequently decline to prescribe Neurontin for pain from the nerve damage, a medication that other doctors indicated was necessary. A federal appeals court found that the defendants (the prison doctor and correctional officer) had waived possible qualified immunity defense by failing to assert them in an answer to the complaint. Allowing them to assert that defense at this point in the proceeding, after discovery issues had been litigated for a number of years would unduly prejudice the plaintiff. Henricks v. Gonzalez, #13-4468, 2015 U.S. App. Lexis 5646, 2015 Fed. App. 0065P (6th Cir.).

Officer Assault: By Inmates

     Two inmates tried to escape from a state prison and intentionally murdered a guard during the attempt. One of the prisoners had repeatedly escaped from a state juvenile school before entering the prison at age 15, and subsequently made escape attempts in prison. The other prisoner also had previously been found to have been planning an escape attempt. The estate of the deceased guard claimed that prison officials violated his substantive due process rights by failing to protect him against the murder and by having made various decisions to house the two prisoners in the general population, at times allegedly based on negotiations to end hunger strikes. A federal appeals court found that prison officials were properly granted qualified immunity on substantive due process claims. While paperwork was not always completed for discretionary housing decisions for the two prisoners, the warden had the power to move them. The correctional department's policy on warden discretion on inmate housing placement did not shock the conscience, and the warden did not act with deliberate indifference in failing to place the inmates in maximum security or allowing them to hold their prison jobs. Estate of Johnson v. Weber, #14-2383, 2015 U.S. App. Lexis 7327 (8th Cir.).

Prison Conditions: General

     Thirteen Arizona inmates filed a class action lawsuit against senior officials of the state department of corrections, claiming that there were systematic violations of the Eighth Amendment in their conditions of confinement, including inadequate medical care, dental care, mental health care, and conditions of confinement in isolation cells. A class of 33,000 prisoners incarcerated in state prisons was certified. A federal appeals court rejected arguments that the diverse class of prisoners did not have an Eighth Amendment claim, let alone a common claim. A petition for rehearing en banc was denied over a strong dissent by one judge. Parsons v. Ryan, #13-16396, 754 F.3d 657 (9th Cir. 2014), rehearing en banc denied, Parsons v. Ryan, #13-16396, 2015 U.S. App. Lexis 6556 (9th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     The trial court erroneously dismissed a prisoner's lawsuit claiming that he faced unlawful retaliation for filing grievances based on an alleged failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act. The alleged threats of retaliation by various defendants showed why he could not have filed the grievance about the reprisal internally at the facility, meeting the conditions for instead filing a grievance directly with the Secretary of the State Department of Correction. Dimanche v. Brown, #12-13694, 2015 U.S. App. Lexis 6339 (11th Cir.).

Prison Litigation Reform Act: Filing Fees

     An indigent state prisoner who filed lawsuits as a pauper owed a filing fee of $350 to a federal trial court and $505 to a federal appeals court. He asserted that the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(b)(2) only mandated that there be a monthly 20% deduction for the filing fees until both fees were paid, and that the deductions should be used to pay off the two filing fees in the order in which they were incurred. The government, in opposition, argued that there should be a 20% deduction for each filing fee owed, or 40% a month, with half being used to pay each fee. A federal appeals court upheld the prisoner's position, ordering that only 20% of his account be deducted each month to pay off the two filing fees in sequential recoupment. Siluk v. Merwin, #11-3996, 2015 U.S. App. Lexis 5824 (3rd Cir.).

     Editor's Note: The majority of federal appeals courts that have examined this issue have adopted the opposite rule of concurrent recoupment, under which 20% of the inmate's funds may be withheld to pay each filing fee owed. The cases on both sides of the issue are listed in the case cited above.

Prisoner Assault: By Inmate

     An immigration detainee was being held at a county facility at the direction of federal immigration authorities. She sued both federal and county defendants for failing to protect her from attack by another detainee who threw a lightweight plastic chair at her, allegedly after she had reported prior threats to a correctional sergeant and an immigration agent. The plaintiff failed to establish that her statements made the immigration agent aware of facts from which an inference of a substantial risk of serious harm existed. The sergeant was also entitled to summary judgment as a reasonable jury could not find that a little red mark on the plaintiff's cheek resulting from the attack was objectively serious, particularly as the plaintiff did not seek medical attention, and the injury was treated with one pain pill. Chavero-Linares v. Smith, #13-3532, 2015 U.S. App. Lexis 5931 (8th Cir.).

Race Discrimination

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

     An African-American prisoner at a California-state prisoner sued following a lockdown imposed on African-American inmates, complaining, among other things, of injuries he suffered related to shower restrictions, and about the race-based classification of the lockdown. A federal appeals court found that the conditions imposed did not violate Eighth Amendment restrictions on cruel and unusual punishment, for which deliberate indifference had to be shown. That did not, however, bar an equal protection claim for race discrimination under the Fourteenth Amendment. The trial court erred, on the equal protection claim, in allowing the jury to defer generally to officials rather than determining whether the challenged race-based actions were narrowly tailored. Harrington v. Scribner, #09-16951, 2015 U.S. App. Lexis 7545 (9th Cir.).

Religion

     Prison officials were improperly granted summary judgment on religious accommodation claims asserted by a Native American prisoner belonging to the Navajo tribe under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.S. § 2000cc et seq. The plaintiff prisoner asserted a possibly viable claim that the inability to eat game meat at a Navajo celebration imposed a substantial burden on his religious belief, and there was no evidence presented by the defendants that USDA inspected game meats were either not available or what the cost would be to accommodate the inmate's request. Prison officials were also improperly granted summary judgment on the prisoner's claim related to the denial of his request for a multi-colored headband.  Schlemm v. Wall, #14-2604, 2015 U.S. App. Lexis 6592 (7th Cir.).

Strip Search: Prisoners

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

     An African-American inmate claimed that four correctional officers violated his constitutional rights during a visual body cavity search when he returned to a correctional facility from a school. He said that he was told to remove his clothes, lift his genitals, and bend over and spread his buttocks. He further complained that the search took place in front of other prisoners and in the view of a security camera, so that female correctional officers observed the search via video. He also claimed that one of the officers subjected his to a racial slur by calling him a "monkey." A federal appeals court found the plaintiff failed to establish that any of this conduct violated his clearly established constitutional rights. Story v. Foote, #13-2834, 2015 U.S. App. Lexis 5719 (8th.).

•Return to the Contents menu.

     Chemical Agents: Operations Memorandum #001-2015, Oleoresin Capsicum (OC) Aerosol Spray Pilot Program, Federal Bureau of Prisons (2-26-2015).

     Foreign Prisoners: Program Statement #5140.42, Transfer of Offenders To or From Foreign Countries, Federal Bureau of Prisons (04-10-2015).

     Inmate Funds: Program Statement #4500.11, Trust Fund/Deposit Fund Manual, Federal Bureau of Prisons (04-09-2015).

  Reference:

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

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