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Access to Courts/Legal Info

     An intermediate California appeals court ruled that a trial court did not abuse its discretion in ordering that confidential attorney-client contact visits be made available at a jail in the absence of circumstances justifying the suspension of such visits in individual cases because of unreasonable security risks. The ruling came in a lawsuit challenging a jail policy providing that lawyers would no longer be able to meet face-to-face with incarcerated clients in visiting rooms without glass partitions, but would instead be required to meet in glass partitioned visiting rooms and speak over a telephone. County of Nevada v. Super. Ct. (Siegfried), #C074504, 236 Cal. App. 4th 1001, 2015 Cal. App. Lexis 412

Disability Discrimination: Prisoners

     An inmate suffering from a neurological condition was able to ambulate, stand, and sit with the assistance of crutches and leg braces. No doctor had ordered a wheelchair for him, or that he be transported via a wheelchair-accessible van. He arrived for transport to a medical appointment with neither a wheelchair or a physician's order. A wheelchair accessible van with a lift was available, but standing on the lift was forbidden because of the risk of falling. The prisoner claimed that he had to enter the van by crawling, exposing him to urine and vomit on the floor, that he was unable to eat while traveling, and that during his return trip the driver stopped the vehicle near a ridge and said that guards could drown him and claim he tried to escape. The prisoner further claimed that when he filed a grievance over these events, prison staff members retaliated against him with verbal abuse, ransacked his cell, and transported him in a non-wheelchair-accessible van for part of the trip when he was moved to another prison. A federal appeals court rejected Eighth and Fourteenth Amendment claims, as well as disability discrimination and retaliation claims. The record did not support his argument that he had an objectively serious medical need requiring the use of a wheelchair-accessible van. Even if the van conditions were unsanitary, he was exposed to them for only approximately six hours on a single occasion, and the one time single sentence alleged threat by the driver was insufficient to show a constitutional violation. The prisoner failed to provide sufficient evidence that the subsequent actions allegedly taken against him were retaliatory. Turner v. Mull, #14-1589, 784 F.3d 485 (8th Cir. 2015).

First Amendment

     A federal trial court has struck down as unconstitutional, in violation of the First Amendment, a Pennsylvania law, the Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304, which authorized 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 court concludes that the challenged statute betrays several constitutional requirements; the enactment is unlawfully purposed, vaguely executed, and patently overbroad in scope. However well-intentioned its legislative efforts, the General Assembly fell woefully short of the mark. The result is a law that is manifestly unconstitutional, both facially and as applied to plaintiffs." The enforcement of the statute was enjoined. Abu Jamal v. Kane, #1:14-cv-2148, 2015 U.S. Dist. Lexis 55250, 43 Media L. Rep. (BNA) 1679 (M.D. Pa.).

Prisoner Assault: By Inmate

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

     An arrestee claimed that he was "savagely" attacked by another intoxicated arrestee when they were both placed in a "sobering" cell by employees of the sheriff's department. A jury entered a verdict against both individual defendants and the county. A total of $2,605,632.02 in damages was awarded. Based on the jury's findings, the parties later stipulated to $840,000 in attorney fees, $12,000 in punitive damages against one jailer, and $6,000 in punitive damages against a second jailer. A federal appeals court rejected the claim that the individual defendants were entitled to qualified immunity as there was evidence from which the jury could have concluded that the jailers had been deliberately indifferent to the clearly established duty to protect the plaintiff against a substantial risk of harm, including evidence that one defendant had disregarded the plaintiff's pounding on the cell door at the time of the attack, while the other had placed the two arrestees in the same cell despite the fact that separate cells were then available. As to the jury's award of punitive damages, once a finding of deliberate indifference was reached, no additional evidence was needed to make a finding of "reckless disregard." The award against the county, however, was reversed as there was no evidence that the county had actual knowledge of the risk to the plaintiff's safety. Castro v. County of Los Angeles, #12-56829, 2015 U.S. App. Lexis 7240 (9th Cir.).

Prisoner Discipline

     A cell phone was found during a random search at a prison, and the phone's history showed that a prisoner's son had called that number the day before. The prisoner was convicted on disciplinary charges and lost good time credits as well as having other sanctions imposed. A federal appeals court ruled that the prisoner had adequately exhausted his available administrative remedies, allowing him to sue, but that the fact that he was convicted of conduct that disrupts or interferes with the orderly running of the institution rather than possession of the cell phone, the charge that he was notified would be pursued at the hearing, did not violate his due process rights. Both charges could be based on the same conduct--having and using the cell phone. Santiago-Lugo v. Warden, #13-14384, 2015 U.S. App. Lexis 7158, 25 Fla. L. Weekly Fed. C 1158 (11th Cir.).

Prisoner Suicide

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

     A domestic violence probation violator with a lengthy history of substance abuse and mental health problems killed himself while awaiting transportation to another facility. A federal appeals court ruled that prison administrators in the case were not entitled to qualified immunity on a claim that inadequate provision of medical care by a private third party contractor cause the prisoner's suicide. Barkes v. First Corr. Med. Inc., #12-3074, 766 F.3d 307 (3rd Cir. 2014). The U.S. Supreme Court unanimously reversed, holding that even if the facility's suicide screening and prevention procedures had the shortcomings that the plaintiffs alleged, no precedent in effect on the date of the suicide, November of 2004, would have made it clear to the defendant officials that they were overseeing a system that violated the Constitution. Since the defendants were not violating clearly established law that mandated the proper implementation of adequate suicide prevention protocols, they were entitled to qualified immunity. Taylor v. Barkes, #14-939, 2015 U.S. Lexis 3715.

     A federal appeals court held that seven correctional officers sued for liability in the suicide death of a county jail inmate were entitled to qualified immunity as there was no evidence that any of them had a subjective knowledge that there was a serious risk that the inmate would attempt suicide. Liability could only be based on such subjective knowledge combined with disregard of that known risk. The trial court previously also granted qualified immunity to three other officers. Jackson v. West, 14-13282, 2015 U.S. App. Lexis 9202 (11th Cir.).

Public Protection

     The family of a woman raped and murdered by a former inmate four days after his release from prison sued the State Department of Mental Health and other defendants for failing to discharge mandatory duties imposed by a state Sexually Violent Predators Act to evaluate whether the prisoner should have been civilly committed. While the facts alleged, if true, did establish that the duty to conduct a Sexually Violent Predators assessment with two evaluators was breached (only one evaluator was used), the plaintiff failed to show that this was the proximate cause of the woman's death. State Dept. of State Hospitals v. Super. Ct., #S215132, 2015 Cal. Lexis 3898.

Sexual Harassment

     A male parolee sued a state official, claiming that she took no action in response to his complaint that a male parole officer, her subordinate, sexually harassed him, propositioning him for sex, making unwanted physical advances, and offering to release hi from electronic monitoring if he would allow the officer to take nude photos of him. A federal appeals court upheld the denial of qualified immunity to the defendant. If the plaintiff's version of events was true, a reasonable jury could return a verdict for the plaintiff. He alleged that she was told of his complaint, but did not meet with him and took no steps to protect him against further harassment. Locke v. Haessig, #13-1857, 2015 U.S. App. Lexis 9436 (7th Cir.).

Youthful Prisoners

     The Illinois Department of Juvenile Justice has agreed to new court approved policies that prohibit the punitive solitary confinement of juvenile prisoners, in a lawsuit filed by the Illinois ACLU. The lawsuit argued that protracted isolation and solitary confinement of juveniles, especially of those suffering mental illness, increased the risk of suicide and other self-harm. Under the new policy, punitive isolation is not allowed, youths separated from the general population for any non-punitive reason must be provided their ordinary education and mental health services, and youths separated for 24 hours or longer must be allowed out of their rooms, and provided an opportunity to interact with staff, for at least eight (8) hours each day. The new policies were the result of negotiations between the parties in the lawsuit and court-ordered monitors. R.J. v. Jones, #12-cv-07289, U.S. Dist. Ct. (N.D. Ill. April 24, 2015). Monitors' Statement on new policies. ACLU of Illinois summary of new policies. Full text of new policy. 2012 consent decree that led to the changes.

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     Mental Illness: Callous and Cruel: Use of Force against Inmates with Mental Disabilities in U.S. Jails and Prisons, by Human Rights Watch (2015).

     Prison Rape & Sexual Misconduct:  Sexually Abusive Behavior Prevention and Intervention Program, Federal Bureau of Prisons Program Statement #5324.12 (June 4, 2015).

     Prison Rape & Sexual Misconduct: Untangling the PREA Standards: Outside Reporting, Confidential Support, and Third-Party Reporting Fact Sheet, by the National PREA Resource Center and Just Detention International (2015).

  Reference:

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

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