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Access to Courts/Legal Info

     A prisoner litigant only had access to a prison law library for a few hours per week. The trial court gave him 21 days to seek discovery in a pending case and to obtain and review responses that were not even due within the 21 days and also respond to the defendants' motion for dismissal or summary judgment. Because of these circumstances, he asked for additional time to respond to the defendants' motion. The trial court did not respond to the request for additional time, so he was compelled to respond to the motion without the benefit of the requested discovery. A federal appeals court held that the trial court should have granted the prisoner's request for additional time, and failure to do so was an abuse of discretion. Rachel v. Troutt, #15-6104, 820 F.3d 390 (10th Cir. 2016).

Diet

     Three defendants (a medical director, chief operating officer, and registered dietician) in a civilly-committed person's civil rights lawsuit were properly denied qualified immunity on the claim for violation of his constitutional right to adequate nutrition. He presented evidence from which a jury could find that he lost 11 pounds in less than two months and that his bag lunches frequently lacked items as punishment for alleged behavior violations. Further, he allegedly at times received only 1200 calories per day rather than the recommended 2000. The right to adequate nutrition was clearly established, and these three defendants knew of the plaintiff's complaints and had authority to change his meals. The appeals court also held, however, that the evidence against two other defendants did not show deliberate indifference. Ingrassia v. Dicknette, #14-3358, 2016 U.S. App. Lexis 10637 (8th Cir.).

Federal Tort Claims Act

     Two prisoners at a federally-owned and contractor-run prison sued the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, after they contracted coccidioidomycosis (cocci). They claimed that the government failed to protect them from contracting this illness. An independent contractor exception to the FTCA did not bar liability. The Bureau of Prisons' duty to warn prisoners before transferring them to this facility arose outside of its contractual relationship with the company running the prison. As the owner of the facility, the U.S. government had a duty under California law to exercise reasonable care in the ownership and management of the property, and state law recognizes a special relationship between jailer and prisoner. Additionally, the BOP did not delegate all of its duties to the contractor once the prisoners arrived at the prison, and explicitly excluded the contractor from participating in the development of a cocci prevention policy. Edison v. United States, #14-15472, 2016 U.S. App. Lexis 9250 (9th Cir.).

First Amendment

     A prisoner claimed that his First Amendment rights were violated when he was allegedly placed in solitary confinement in retaliation for publishing a by-lined online article. The sued federal prison employee, however, was entitled to qualified immunity from liability, as it was not clearly established that a prisoner had a protected constitutional right to publish an article under a by-line. The appeals court, therefore, did not reach the issue of whether the action violated the prisoner's rights. McGowan v. United States, #15-1786, 2016 U.S. App. Lexis 10263 (2nd Cir.).

Freedom of Information

     A former federal prisoner sued the Bureau of Prisons under the Freedom of Information Act (FOIA), 5 U.S.C. 552, seeking certain records. A federal appeals court held that the plaintiff was not required to plead in his complaint that he had exhausted available administrative remedies before filing suit. While such exhaustion is required, failure to exhaust is an affirmative defense that must be raised by the defendant, not a pleading requirement. Moon v. Federal Bureau of Prisons, #15-3751, 2016 U.S. App. Lexis 7674 (8th Cir.).

Medical Care

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

     Before his incarceration, a prisoner had marbled implanted in and tattoos drawn on his penis. While incarcerated, he underwent surgery to remove the marbles. He claimed that prison officials threatened him with segregation for the rest of his sentence and loss of eligibility for parole if he did not consent to the surgery. He claimed that he suffered physical injury and mental anguish because of the surgery, and that there was no security or penological justification for the requirement. A federal appeals court held that the plaintiff alleged possible Eighth Amendment and Fourth Amendment violations as well as a class-of-one equal protection claim. Because the trial court did not consider the plaintiff's due process claim, the appeals court ordered further proceedings on that claim. King, Jr. v. Rubenstein, #15-6382, 2016 U.S. App. Lexis10276 (4th Cir.).

Prison Conditions: General

     A California prisoner was "validated" as a prison-gang associate and placed in secured housing. A year later, the state amended its laws so that secured housing prison-gang associates could no longer earn future good-time credit. He filed a writ of habeas corpus in state court challenging the application of the changed law to him as an ex post facto law impermissibly enhancing his punishment. His petition was rejected by the trial court and a state intermediate appellate court on grounds that he had filed it in the wrong county. He then filed an original petition for habeas relief with the California Supreme Court, which was also summarily denied. The federal district court denied the prisoner's ex post facto claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which requires a state prisoner seeking federal habeas relief to exhaust state remedies, 28 U.S.C. 2254(b)(1)(A). If the state courts adjudicate a federal claim “on the merits,” AEDPA mandates deferential, rather than de novo, review, unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,”, or “was based on an unreasonable determination of the facts.” In this case, a federal appeals court incorrectly ruled that the California Supreme Court's ruling was not on the merits. While the lower California courts rejected the prisoner's petition for reasons of improper venue, which did not deal with the merits, there is only one California Supreme Court, and he filed an original petition there, so improper venue could not have been the basis, the decision was on the merits, and any federal review of the issue should therefore have used a "differential lens" on the state court ruling. Kernan v. Hinojas, #15-833, 136 S. Ct. 1603, 194 L. Ed. 2d 701, 2016 U.S. Lexis 3051, 84 U.S.L.W. 4284.

     A prisoner filed an intended class action lawsuit against a private prison company claiming that they inadequately staffed a prison in deliberate indifference to the health and safety of prisoners. The parties settled and the company agreed to staff the prison with a specified number of security personnel. The trial court later held the company in contempt for falsifying staffing reports. An appeals court upheld the trial court's remedy of extending the settlement agreement for two years. This remedy was narrowly drawn, necessary, and the least intrusive means to rectify the company's continued Eighth Amendment violations. The appeals court upheld the contempt order and an award of attorneys' fees against the defendant. Kelly v. Wengler, #13-35972, 2016 U.S. App. Lexis 9381 (9th Cir.).

Religion

     Native American prisoners challenged under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. prison policies restricting the wearing of medicine bags, the use of pipes during Native American religious ceremonies, and certain grooming requirements. A federal appeals court upheld summary judgment for the plaintiffs on their medicine bag and pipe ceremony claims, and ordered further proceedings on their grooming policy claim as there remained material issues in dispute as to the legitimacy of officials' cost and security concerns created by the wearing of kouplocks by the plaintiffs, who were low security risk prisoners. Davis v. Davis, #14-40339, 2016 U.S. App. Lexis 10788 (5th Cir.).

Smoking

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

     A Native American inmate claimed to have contracted Hepatitis C while participating in a communal pipe-smoking ceremony at a prison. He sued the Executive Director of the state prison agency for violating his Eighth Amendment right to be free from cruel and unusual punishment by failing to protect him from the risk of contracting communicable diseases, including Hepatitis C. A federal appeals court noted that there was no policy requiring the plaintiff to participate in the communal pipe ceremony, and he did so voluntarily based on his religious beliefs. He therefore failed to state a claim for an Eighth Amendment violation. Legate v. Livingston, #15-40079, 2016 U.S. App. Lexis 9106 (5th Cir.).

•Return to the Contents menu.

     Prison Rape: PREA Data Collection Activities, 2016, by Allen J. Beck, Bureau of Justice Statistics (June 28, 2016 NCJ 249872).

     Prison Dental Services: Dental Services, Federal Bureau of Prisons Program Statement 6400.03 (June 10, 2016).

     Psychological Treatment: Psychology Treatment Programs, Federal Bureau of Prisons Program Statement 5330.11 (May 28, 2016).

     Statistics: Facility-level and Individual-level Correlates of Sexual Victimization in Juvenile Facilities, 2012, by Allen J. Beck, Carol Bruce, David Cantor, John Hartge, Leanne Heaton, and Weijia Ren, Bureau of Justice Statistics (June 28, 2016 NCJ 249877).

     Statistics: Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010, by Matthew R. Durose, Joshua A. Markman, Ramona R. Rantala, and Andrew D. Tiedt, Bureau of Justice Statistics (June 21, 2016 NCJ 249743).

  Reference:

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

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