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Age Discrimination

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

     A prisoner claimed that it was age discrimination for participants in a prison Honor Program to be given extra privileges such as more time outside their cells, exclusive access to video games, and greater use of microwaves and exercise equipment. Eligibility for the program was limited to prisoners over 30, and had previously been restricted to those over 35. Participants must also not have committed any infraction of prison rules for 24 months, and no infraction involving violence for 48 months. The plaintiff said that his first application for the program was denied because he was too young, and that his reapplication after he met the minimum age requirement was again denied because by then the program and its waiting list were full. A federal appeals court upheld the rejection of the age discrimination and equal protection claims. When different treatment is not based on a suspect class, such as race, and does not involve a fundamental right, prison administrators can treat inmates differently when the treatment is rationally related to a legitimate penological interest. The court found that there were "obvious reasons" to extend preferential treatment to program participants. The trial court had reasoned that using age as a proxy for maturity is rationally related to conferring greater trust and responsibility. Flynn v. Thatcher, #15-2458, 2016 U.S. App. Lexis 6801 (7th Cir.).

Diet

     A federal appeals court reinstated a prisoner's lawsuit contending that the prison food served to him was so deficient as to constitute an Eighth Amendment violation. The trial court had dismissed the complaint because it was the same as a lawsuit filed against prison employees in 2010 by a fellow inmate, which had been dismissed on the merits. Because the current plaintiff had not been a party to that earlier lawsuit and the defendants had not demonstrated that an exception to the rule against third party preclusion applied, the plaintiff was not barred from pursuing the same claims on his own behalf. Duckett v. Fuller, #15-6568, 2016 U.S. App. Lexis 7417 (4th Cir.).

Medical Care

     A pretrial detainee in a county jail developed severe and persistent pain in his abdomen and back. A CT scan revealed a paratracheal mass, and he had trouble breathing, as well as experiencing partial paralysis as the mass rapidly grew. His lawsuit claims that medical personnel at the jail were aware of these difficulties, but accused him of malingering, merely giving him over the counter medications and ordering him to seek psychiatric care. After about four months, his condition severely deteriorated, and he was taken to a hospital, where lung cancer was diagnosed, leading to his death two months later. Overturning the dismissal of his mother's lawsuit, a federal appeals court found that a reasonable jury could find that pervasive systemic deficiencies in the jail's medical care were the "moving force" behind the decedent's injury and death. Dixon v. Cook County, Illinois, #13-3634, 2016 U.S. App. Lexis 6459 (7th Cir.).

     A pretrial detainee in a county jail fell and hurt his back. He was not able to see a doctor for a month. Even then, he claimed, officers did not move him, although a doctor determined to use a lower bunk. There was no ladder to get to his upper bunk, so he was forced to sleep on the floor until released from custody. The trial court granted summary judgment to the defendants, stating that “it is undisputed that Plaintiff never received a lower bunk permit at any time while at the jail.” Reversing, a federal appeals court found that it was in fact disputed and that there was evidence that he did receive a doctor's order that he be assigned to a lower bunk. Bolling v. Carter, #15-2254, 2016 U.S. App. Lexis 7521 (7th Cir.).

Prisoner Assault: By Inmate

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

     A prisoner in the mental health ward of a county jail died as a result of being beaten and stabbed by his cellmate. His estate sued, claiming that the county and jail personnel acted with deliberate indifference to the decedent's safety. The plaintiff claimed that the defendants knew or should have known about the dangerous violent propensities of the cellmate, but disregarded the risk by placing him in the decedent's cell and by failing to adequately respond to the resulting attack. A federal appeals court, upholding a denial of summary judgment to the individual defendants, found that a reasonable jury could find that jail personnel were aware of the risk of the attack and had actually heard the assault and decided not to respond. Richko v. Wayne County, #15-1524, 2016 U.S. App. Lexis 6835, 2016 Fed. App. 93P (6th Cir.).

Prisoner Discipline

     An inmate classified as a violent felon was housed in solitary confinement for over a decade based on a finding of gang affiliation. He was found, in a disciplinary proceeding, to have refused nine consecutive meals over a three day period that coincided with a larger hunger strike and work stoppage protesting solitary confinement conditions. He lost 90 days of good time credits for engaging in "behavior which might lead to violence or disorder, or otherwise endangers facility, outside community or another person.” An intermediate California appeals court found insufficient evidence to support the disciplinary ruling. Nothing in the evidence of the delays, cancellation of services, and the reallocation of prison personnel to monitor the hunger strikers indicated that prison operations were thrown into "disorder." In re Gomez, #A142470, 2016 Cal. App. Lexis 320.

     An inmate was notified the he was facing a disciplinary proceeding based on his possession of heroin that was confiscated by a named officer during a cell search. He stated that this was not the officer who had searched his cell, which had been searched by two different officers, who found nothing. While the named officer's report stated that he found heroin in cell 10-D, the inmate's cell, a photo of the heroin was labeled "Cell 10-6D." He was not permitted to view a video that existed of the search. No witnesses appeared at the hearing, although he requested that the officers that he claimed had actually searched his cell appear. The hearing officer ruled that he should lose 90 days of good time credit. A federal appeals court reversed, noting that the inmate was entitled to present evidence refuting the report that heroin was found in his cell. Given the conflict between the report and the label on the photo, the refusal to allow him to exercise that right was “particularly troubling.” Ellison v. Zatecky, #15-1884, 2016 U.S. App. Lexis 7035 (7th Cir.).

Public Protection

     A Kansas minimum security inmate escaped from custody, entered a woman's house, forced her into a closet, and kicked her, causing her to fall and hit her head. She died from her injuries and her son sued the state for personal injuries and wrongful death. Upholding summary judgment for the state, the Kansas Supreme Court found that the defendant was entitled to immunity from liability under the police protection exception of a state tort claims act. Keiswetter v. State, #110610, 2016 Kan. Lexis 243.

Retaliation

     A federal appeals court reinstated a lawsuit arising after a pagan worship area at a prison was destroyed during a construction project. The prisoners filed grievances about the demolition. They were subsequently charged with abusing the grievance procedure and sentenced to 15 days of disciplinary segregation. One of them was transferred to another facility. The trial court granted summary judgment in favor of prison administrators on an unlawful retaliation claim, after the defendants contended that the plaintiffs abused the grievance process to harass the staff. The appeals court disagreed, finding evidence that the plaintiffs "engaged in the prison’s informal resolution procedure before filing their grievances,” and that their grievances "were not frivolous, vexatious or duplicative." Debarr v. Clark, #14-15497, 2016 U.S. App. Lexis 6935 (Unpub. 9th Cir.).

     A former gang member was attacked by other inmates and left permanently disabled and confined to a wheelchair. He was told that he had been targeted because his assailants thought he was a pedophile. He learned that his prison records had reference to the Adam Walsh Act, 42 U.S.C. 16901–91, creating a national sex offender registry, although his convictions were actually for other crimes. He filed a grievance asking that his prison records be corrected, and that he be placed in segregation because he heard that inmates at a new facility he had been transferred to were planning to attack him. He was assigned to a wheelchair accessible cell, but was attacked by his cellmate within a month over his "Walsh Act stuff." When he filed a grievance and objected to a new proposed cellmate, guards allegedly took him to a non-accessible cell and refused to help him to the toilet. Subsequently, he was found lying on the floor near the toilet, suffering a sprained spine, a shoulder contusion, and head lacerations. A federal appeals court vacated the dismissal of his First Amendment retaliation claim and an Eighth Amendment claim that a guard was implementing a policy of moving every prisoner who objects to a new cellmate, for the purpose of deterring prisoners from attempting to reserve one-person cells. Herron v. Meyer, #15-1659, 2016 U.S. App. Lexis 7472 (7th Cir.).

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     Prison Gangs: White Supremacist Prison Gangs in the United States, A Preliminary Inventory, by the Anti-Defamation League (ADL) (May 2016).

  Reference:

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

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