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Death Penalty

     The U.S. Supreme Court rejected an Eighth Amendment constitutional challenge by death penalty inmates to Oklahoma's practice of using a 500-milligram dose of midazolam as the first drug it administered, before it administered a paralytic agent and potassium chloride in carrying out executions. The first drug made it a virtual certainty that the prisoner being executed would be unconscious when the second and third drugs were administered, and the plaintiff inmates failed to show that there was a known available alternative method of carrying out an execution that would provide a substantially less severe risk of pain. Glossip v. Gross, #14-7955, 2015 U.S. Lexis 4255

Disability Discrimination: Prisoners

     Death row inmates at a new prison that has no air conditioning claimed that the heat they were exposed to during the summer violated their Eighth Amendment rights because of their pre-existing medical conditions and disabilities, including hypertension, obesity, diabetes, depression, and high cholesterol. They also claimed that this constituted disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. 12132, and the Rehabilitation Act (RA), 29 U.S.C. 794. A federal appeals court upheld a trial court finding of deliberate indifference constituting an Eighth Amendment violation, as the heat put the plaintiffs at substantial risk of serious harm, but found that an injunction issued requiring the installation of air conditioning throughout death row was overbroad under prior precedent and the Prison Litigation Reform Act, 18 U.S.C. 3626, so that further proceedings were required. The appeals court upheld the rejection of the disability discrimination claims, however, as the prisoners failed to present evidence to prove that they were disabled. Ball v. LeBlanc, #14-30067, 2015 U.S. App. Lexis 11769 (5th Cir.).

     Deaf inmates housed in Texas prisons claimed that state authorities failed to reasonably accommodate their impairment in violation of the disability discrimination provisions of state law regarding public facilities. The Texas Supreme Court rejected this claim, holding that state prisons are not "public facilities" as defined in the statute, the defendant, the executive director of the Texas Department of Criminal Justice (TDCJ) did not act beyond his authority in failing to comply with the provisions of the law requiring an accommodation of disabilities in public facilities. Beeman v. Livingston, #13-0867, 2015 Tex. Lexis 618, 58 Tex. Sup. Ct. J. 1414.

Marriage/Procreation

     The U.S. Supreme Court, by a 5-4 vote, has ruled that there is a constitutional right to same-sex marriage and that each state must also recognize such marriages legally entered into in other states. As a result, to the extent that prisoners have a constitutional right to marry, which they generally do, with very limited exceptions, that right now extends to entering into same-sex marriages. Prisons will now have to universally accommodate prisoners entering into same-sex marriages to the same extent as they now accommodate opposite sex marriages. Obergefell v. Hodges, #14-656, 2015 U.S. Lexis 4250.

     Editor's Note: For a prior discussion of the law regarding prisoner's right to marry, see Prisoner Marriage, 2007 (10) AELE Mo. L.J. 301.

Medical Care

     An inmate injured his hand during a prison basketball game. While a nurse quickly wrapped his hand, she was not able to either give him medicine or do stitches. A day later, the inmate saw a doctor who also did not stitch his wound, but prescribed antibiotics and recommended a specialist. Approval for seeing a specialist took a number of days, during which the wound remained open and bleeding. The prisoner filed a grievance, which was rejected, arguing that the delay was retaliatory for him having filed a previous grievance over the withholding of prescription medication. He was then taken to a clinic where he saw a physician's assistant, who stated that he could not suture the wound because of its age. The inmate claimed that prison officials did not follow care instructions after that and did not return him to the clinic for follow-up care. Seven months later, he still had continuing pain, and then had surgery. He claims that due to an overall ten-month delay in getting required treatment, he suffered irreparable damage. The trial court dismissed his lawsuit after screening it, and a federal appeals court reversed, finding that the alleged facts stated both valid Eighth Amendment and First Amendment retaliation claims. Perez v. Fenoglio, #12-3084, 2015 U.S. App. Lexis 11672 (7th Cir.).

Prisoner Assault: By Officers

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

      The U.S. Supreme Court has vacated and remanded a federal appeals court decision rejecting liability for the use of a Taser in the stun mode and other force against a detainee. In the case, a jail detainee claimed that jailers used excessive force against him when they moved him to a different cell after he refused orders to take down a yellow sheet of paper covering the light in his cell. The prisoner refused to cooperate with the move, lying face down on his bunk and refusing to get up. He was forcibly removed and handcuffed and placed on a bunk. When the officers tried to remove the handcuffs, he allegedly resisted, which he later denied. The officers then allegedly smashed his head into the concrete bunk, which they later denied. A Taser was then applied to the detainee's back in stun mode for five seconds. He declined the attentions of a nurse. The trial court noted the case law that held that it was reasonable to use force against an inmate who refused to comply with orders but concluded that the issue in the case was "whether [the] defendants' response to plaintiff's obstinance was reasonable under the circumstances or whether it was excessive and was intended to cause [the] plaintiff harm." The court also concluded that, because a jury could find that the defendants had acted with malice, qualified immunity was not available. Later, a jury returned a verdict for the defendants, which was upheld on appeal.

     The Fourteenth Amendment governed the plaintiff's claims as a pretrial detainee. The federal appeals court held that the jury was adequately instructed on the elements of that claim. The jury instructions, the court said, properly required them to find, in order to impose liability, that the defendants knew that their use of force posed a risk of harm to the plaintiff, but that they recklessly disregarded his safety. Kingsley v. Hendrickson, #12-3639, 744 F.3d 443, 2014 U.S. App. Lexis 3972, 2014 WL 806956 (7th Cir. 2014). In reversing by a 5-4 vote, the U.S. Supreme Court found that the detainee only had to show that the force purposefully or knowingly used was objectively unreasonable, as that standard adequately protected an officer who acted in good faith. The jury instructions were erroneous because they suggested that the jury should weigh the officers' subjective reasons for using force, whether the officers actually intended to violate, or recklessly disregarded the detainee's rights, and the issue of whether that error was harmless would depend in part on the detailed specifics of the case. This determination must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time, and must account for the "legitimate interests [stemming from the government's] need to manage the facility in which the individual is detained," appropriately deferring to "policies and practices that in th[e] judgment" of jail officials "are needed to preserve internal order and discipline and to maintain institutional security." Kingsley v. Hendrickson, #14-6368, 192 L. Ed. 2d 416, 2015 U.S. Lexis 4073.

Religion

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

     An inmate claimed that his free exercise of religion rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. were violated because he was prohibited from consuming wine during communion, he was required to work on the Sabbath, and he was housed with non-Christian and anti-Christian cellmates, including an active Satanist. He further asserted a claim for deliberate indifference to his medical needs. A federal appeals court found that the plaintiff successfully alleged facts sufficient to go forward on his Sabbath and cell assignment claims, and the fact that he received some medical treatment for some of his various symptoms did not defeat his deliberate indifference claim when he alleged that some symptoms were not treated at all. The appeals court reversed the summary dismissal of the wine communion claim, as the plaintiff did not have the opportunity to submit a brief on whether the wine ban substantially burdened the exercise of his religion and the record did not show that the total ban on wine consumption during communion was the least restrictive means of furthering the prison's asserted security interest. Jehovah v. Clarke, #13-7529, 2015 U.S. App. Lexis 11818 (4th Cir.).

     A California prison's refusal to accommodate an Aryan Christian Odinist prisoner's request that he be classified an ineligible to be housed with a cellmate of a different race did not violate his religious free exercise rights under either the First Amendment or the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. Denying a religious exemption to the prison's classification scheme was the least restrictive means of furthering a compelling interest in complying with constitutional restrictions on racial segregation. Walker v. Beard, #12-17460, 2015 U.S. App. Lexis 10255 (9th Cir.).

     Editors Note: See Racial Classifications and Inmate Housing Assignments, 2010 (1) AELE Mo. L. J. 301.

Segregation: Disciplinary

     A prisoner who is a member of the Nation of Gods and Earths (NOGE), a group whose adherents are also known as "Five Percenters" participated in a prison riot with other members of the group in 1995, and was placed in solitary confinement as a result, where he remained for 20 years. He claimed that his confinement in solitary for this long violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. He claimed that the state correctional policy required him to renounce his affiliation with his religion before it would release him, and that his procedural due process rights were also violated. The plaintiff could not prevail on his religious exercise claim, even if his religion was entitled to protection, as he failed to show that the department's policy actually did require him to renounce his faith before being released from the special management unit. But the 20-year period of solitary confinement was held to amount to an "atypical and significant hardship in relation to the general population," and implicated a liberty interest in avoiding security detention. There was a triable dispute of fact as to whether the process used for determining which prisoners were fit for release from security detention met the minimum due process requirements. Incumaa v. Stirling, #14-6411, 2015 U.S. App. Lexis 11321 (4th Cir.).

Transexual Inmates

     A federal appeals court revived a transsexual male to female inmate's Eighth Amendment claim based on deliberate indifference to her serious medical needs by denying her sexual reassignment surgery (SRS) based on a blanket policy against such surgery. The complaint plausibly alleged that the plaintiff had severe gender dysphoria, based on repeated incidents of attempts at self-castration despite being furnished hormone treatment. Even besides the blanket policy, the complaint also sufficiently alleged that the defendant officials acted in reckless disregard of an excessive risk to the prisoner's health in denying the surgery solely based on a recommendation from a doctor with no prior experience in transgender medicine. Rosati v. Igbinoso, #13--15984, 2015 U.S. App. Lexis 10860 (9th Cir.).

     Editor's Note: See Transsexual Prisoners: Medical Care Issues, 2009 (8) AELE Mo. L. J. 301.

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     Prison Rape and Sexual Misconduct: Prison Rape Elimination Act (PREA) Data Collection Activities, 2015, Department of Justice's Bureau of Justice Statistics (BJS) r(June 2015).

     Prison Rape and Sexual Misconduct: Prison Rape Elimination Act (PREA) seminars online, National PREA Resource Center.

     Prison Rape and Sexual Misconduct: Video and Facilitator’s Guide: Guidance in Cross-Gender and Transgender Pat Searches, National PREA Resource Center.and The Moss Group, Inc. (2015).

  Reference:

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

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