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Freedom of Information

     The ACLU sued the director of the Missouri Department of Corrections, claiming that a state statute prohibiting the disclosure of the identity of persons who participated in executions was unconstitutional. It arguably chilled the free speech of the ACLU as to the dissemination of information contained in documents they obtained under a state statute. The director was immune from liability, however, as he did not have the power to enforce the statute barring the disclosure, only private litigants who filed lawsuits for damages for wrongful disclosure could take action to enforce it. Balogh v. Lombardi, 14-3603, 2016 U.S. App. Lexis 4533 (5th Cir.).

Foreign Prisoners and Immigrants

      An immigration detainee claimed that he was kept in the custody of immigration authorities for almost 11 months, far longer than the 90-day statutory period for removal under the Immigration and Nationality Act (INA), 8 U.S.C. 1231(a)(1)(A). He sought to assert a Bivens federal civil rights claim against various government officials on the basis that they allegedly made false statements to prolong his detention, knowing that the removal order could not legally be carried out. A federal appeals court held that no such civil rights claim was available to the plaintiff because the INA provides for sufficient meaningful remedies and Congress did not provide any avenues for the plaintiff and similarly situated aliens to seek money damages. Alvarez v. ICE, #14-14611, 016 U.S. App. Lexis 5506 (11th Cir.).

Medical Care

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

     A 59-year-old African-American man civilly committed as a sexually violent predator sued state employees, claiming that he was improperly denied certain treatments for Hepatitis C. Specifically, he claimed that a doctor used an explicitly racial classification to deny him interferon and ribavirin treatment since such treatment had been largely unsuccessful on African-American males. In addition, after reviewing the plaintiff's biopsy results, the doctor told him that his Hepatitis C had not progressed to a level that would justify the harsh side effects of the requested treatment. Several years later, the plaintiff was placed on interferon and ribavirin, and the treatment was ultimately unsuccessful. Federal civil rights claims against the defendants in their individual capacities were not barred by Eleventh Amendment immunity, since that immunity only extends to claims against the state, such as claims against the defendants in their official capacities. But it was not clearly established that the use of race-related success-of-treatment data as a factor in a medical treatment decision would be unconstitutional, so the doctor was entitled to qualified immunity. Mitchell v. State of Washington, #13-36217, 2016 U.S. App. Lexis 4648 (9th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

     An Indiana inmate sued prison staff members for allegedly failing to protect him from assault by other inmates who threw feces at him on four occasions over a two-year period. The trial court dismissed the lawsuit for failure to exhaust available administrative remedies as required by the Prison Litigation Reform (PLRA) by pursuing grievances. The prisoner claimed, however, that prison staff members had interfered with his filing of formal grievances. A federal appeals court found that summary judgment had been improper for three of the four incidents--in one case, prison staff had returned his grievance form unprocessed, and in two other instances, he asked his counselor and unit manager for a grievance form but they refused to do so, even though they were responsible for giving him such a form upon request. The plaintiff failed to properly exhaust available administrative remedies as to the remaining incident, however, since he had failed to resubmit his formal grievance form to correct the statement that he had accepted an informal resolution; Hill v. Snyder, #15-2607, 2016 U.S. App. Lexis 6206 (7th Cir.).

Prisoner Assault: By Inmates

     Since the plaintiff prisoner alleged facts that, if true, would show that the Prison Housing Manager who failed to grant his transfer request had actual knowledge of an excessive risk to his safety, granting the defendant summary judgment on a claim for failing to protect the plaintiff against an attack carried out by his cellmate was erroneous. Raynor v. Pugh, #14-7746, 2016 U.S. App. Lexis 4877 (4th Cir.).

Probation

     A man served a sentence for attempted sexual abuse and then was placed on probation. He was required to enroll in a sex offender treatment program while on probation and was refused admission to the program since he refused to admit his guilt before the program began and instead invoked his Fifth Amendment privilege against self-incrimination. When his probation was then revoked, he sued his probation officer and therapist. The trial judge, screening the pro se in forma pauperis complaint, dismissed the lawsuit on the basis of qualified immunity. A federal appeals court reversed and remanded for further proceedings because the facts alleged in the complaint did not foreclose the possibility that the plaintiff could have overcome qualified immunity. Chavez v. Robinson, #14-35384, 2016 U.S. App. Lexis 5765 (9th Cir.).

Public Protection

     Three weeks after being released from prison, having served 10 and a half years of a 21-year sentence, a male prisoner killed four people. The husband of one woman he killed sued state and correctional officials for violations of the decedent's substantive due process rights under the Fourteenth Amendment as well as for negligence under the Nebraska state Tort Claims Act. A federal appeals court upheld an order dismissing claims against all defendants. It held that there is no general substantive due process right to be protected against the release of prisoners from custody, even if that release arguably violates state law. State law negligence claims were properly dismissed, since the defendants, in authorizing the release, were acting within the scope of their employment and carrying out a discretionary function. The defendants' decision not to seek a civil commitment of the prisoner was also a discretionary function. Kruger v. Nebraska, #15-1427, 2016 U.S. App. Lexis 6326 (8th Cir.).

     Three weeks after being released from prison, having served 10 and a half years of a 21-year sentence, a male prisoner killed four people. The mother of one man he killed sued the state, the Department of Corrections, and other defendants for violation of Fourteenth Amendment due process and state law negligence under the Nebraska state Tort Claims Act. A federal appeals court upheld the rejection of the due process claim as there is no constitutional right to be protected against the release of criminals from custody even if the release arguably violates state law. Two exceptions did not apply, as there was no special relationship between the victim and the prisoner, and the victim was not a member of a "limited, precisely definable group," where the defendants' conduct put her at a “significant risk of serious, immediate, and proximate harm,” with the risk “obvious or known” to the defendants, who could be found to have “acted recklessly in conscious disregard of the risk,” in a manner that “shocks the conscience.” As to the state law negligence claims, the plaintiff had forfeited any challenge to their dismissal. Glasgow v. Nebraska, #15-1755, 2016 U.S. App. Lexis 6418 (8th Cir.).

Retaliation

     An Illinois man confined as a sexually violent person sued the facility's program director, its grievance examiner, and a security therapist aide, claiming that they infringed on his First and Fourteenth Amendment rights by disregarding his grievances regarding dental care and by insulting him. A federal appeals court overturned dismissal of the complaint, finding that the grievances were protected speech and that a warning that his life would be better if he stopped filing his grievance may have gone beyond mere verbal harassment. The court also commented that the plaintiff, as a civil detainee, was “entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” The defendants, as staff members of an institution that houses and treats persons suffering from mental disorders should understand that they are dealing with psychologically impaired persons, and should have known better than to shout at a possibly vulnerable person, call him “ignorant,” “stupid,” and a “moron,” ignore grievances that might be meritorious and serious, and threaten him with retaliation for complaining. Hughes v. Scott, #15-3482, 2016 U.S. App. Lexis 5349 (7th Cir.).

Strip Search: Prisoners

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

     A female former inmate at a correctional facility claimed that three female officers threw her to the ground, lifted her smock, and forcibly opened her legs to allow a male officer to visually inspect her genitalia for mattress cotton. A Fourth Amendment claim regarding this visual body cavity search could go forward because the plaintiff retained a limited right to bodily privacy and there were disputed issues of fact concerning whether the search took place and the purported justification for it. There appeared to be no evidence that the plaintiff was in such imminent danger of harming herself that the search had to be conducted right away by the male officer at the scene. An Eighth Amendment excessive force claim could also go forward. Harris v. Miller, #14-2957, 2016 U.S. App. Lexis 4701 (2nd Cir.).

•Return to the Contents menu.

     E-mail: You've Got Mail: The promise of cyber communication in prisos and the need for regulation, Prison Policy Initiative (January 2016).

     Statistics: Mass Incarceration: The Whole Pie 2016, by Peter Wagner and Bernadette Rabuy, Prison Policy Initiative (March 14, 2016).

  Reference:

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

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