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Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - Orleans Hotel, Las Vegas
The Biometric, Psychological and Legal Aspects of Lethal and
Less Lethal Force and the Management, Oversight, Monitoring,
Investigation and Adjudication of the Use of Force
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
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A civil liability law publication for officers, jails, detention
centers and prisons
ISSN 0739-0998 - Cite this issue as: 2017 JB September
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Digest Topics
Attorneys’ Fees
Exercise (2 cases)
Medical Care (2 cases)
Prison Litigation Reform Act: “Three Strikes Rule”
Prisoner Suicide (2 cases)
Religion
Retaliation
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AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - Orleans Hotel, Las Vegas
The Biometric, Psychological and Legal Aspects of Lethal and
Less Lethal Force and the Management, Oversight, Monitoring,
Investigation and Adjudication of the Use of Force
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
Click here for further information about all AELE Seminars.
Some of the case digests do not have a link to the full opinion.
- Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
- Access to cases linked to www.findlaw.com may require registration, which is free.
Attorneys’ Fees
An inmate was awarded $307,733.82 on his federal and state claims that correctional officers hit him, causing a fracture to his eye socket, and then left him in his cell without medical attention. A federal appeals court upheld the liability award, rejecting an argument that sovereign immunity barred the state law claim. It reversed and remanded an attorneys’ fee award. Under 42 U.S.C. 1997e(d), the attorney fee award must first be satisfied from up to 25 percent of the damage award, and the trial court did not have discretion to reduce that maximum percentage to 10%. Murphy v. Smith, #15-3384, 844 F.3d 653 (7th Cir. 2017).
Exercise
Two inmates kept in administrative segregation for approximately eleven months claimed that they were prohibited from exercising outdoors, and instead brought to a recreation room five days a week. They argued that the ward and director of the state department of corrections thereby violated their Eighth Amendment rights. A federal appeals court ruled that the defendants were entitled to qualified immunity. Even if the purported ban on outdoor exercise were found to violate the Eighth Amendment, it was not clearly established that an eleven-month ban on such exercise was unlawful. Apodaca v. Raemisch, #15-1454, 2017 U.S. App. Lexis 13390 (10th Cir.).
A prisoner claimed that he was deprived of outdoor exercise for two years and one month. A federal appeals court ruled that two senior prison officials sued for this alleged deprivation were entitled to qualified immunity. The court assumed, for the sake of argument, that such a deprivation violated the Eighth Amendment, but found that the right involved was not clearly established. Lowe v. Raemisch, #16-1300, 2017 U.S. App. Lexis 13392 (10th Cir.).
Medical Care
An inmate suffered from a severe form of psoriasis that causes debilitating pain from large and deep fissures that form on the bottom of his feet. Soriatane was the medication that had provided some relief in the past, when multiple other treatments had proved useless. That medication, however, was not on the approved drug formulary for Ohio prisons, and the facility could not obtain it at the time of the prisoner’s arrival. He developed fissures on his heels, pain, and difficulty walking after weeks without the drug, resulting in multiple visits to the infirmary, during which doctors unsuccessfully tried other drugs. He finally received Soriatane after a year.
Overturning summary judgment on the basis of qualified immunity for the defendants, a federal appeals court found that it was “clearly established” by 2011 that failing to provide a prisoner with needed medication, choosing to prescribe an arguably less effective treatment method, and continuing on a treatment path that was clearly known to be ineffective could constitute a constitutional violation and support a finding of deliberate indifference. Darrah v. Krisher, #15-4136, 2017 U.S. App. Lexis 13502, 2017 Fed. App. 0163P (6th Cir.).
A prisoner claimed that staff members at a facility improperly delayed giving him medical attention for a painful back condition, as well as using excessive force when they eventually took him to a hospital for treatment. A federal appeals court vacated summary judgment for the defendants, noting a failure to preserve videotaped evidence of the plaintiff in his cell during the time in question. It also ruled that reasonable jury could find that a security supervisor and a nurse were deliberately indifferent to the plaintiff’s serious medical needs. Lewis v. McLean, #16-1220, 2017 U.S. App. Lexis 13184 (7th Cir.).
Prison Litigation Reform Act: “Three Strikes Rule”
A prisoner was denied a motion to proceed with his federal civil rights lawsuit after the trial court identified five “strikes” under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g), and found that he failed to establish that he was under imminent danger of serious physical injury. The statute limits pauper status. In no instance shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding if they have on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger.
A federal appeals court vacated the ruling. For the purpose of the immediate appeal, the court ruled, the prisoner had only one “strike.” In counting “strikes,” a court must look at the date the notice of appeal is filed, not the date on which the court rules, in assessing whether a particular dismissal counts as a strike, and several of the dismissed cases were filed after the notice of appeal was filed. Further, a dismissal without prejudice for failure to state a claim does not rise to the level of a strike. Millhouse v. Heath, #15-2278, 2017 U.S. App. Lexis 14357 (3rd Cir.).
Prisoner Suicide
A detainee with a long history of depression and alcoholism successfully committed suicide five days after entering a jail. The officers on duty at the time did not know that he had a high risk of attempting suicide, despite the fact that he had been assessed as having a “maximum risk” of suicide by the intake staff, a nurse and an officer. The intake staff did not, however, initiated the jail’s suicide prevention protocol. A federal appeals court upheld the denial of summary judgment to the defendants. It was clearly established that inmates have the right to be free from deliberate indifference to a known risk of suicide. Estate of Clark v. Walker, #16-3560, 2017 U.S. App. Lexis 13511 (7th Cir.).
A pretrial detainee in a county jail hanged himself in a cell. While he did not die, he suffered brain damage leaving him in a vegetative state. His suicide note stated that he was killing himself because the guards were “fucking” with him by not letting him see crisis counselors.
A federal appeals court overturned summary judgment for two guards, after which a jury returned a verdict for both defendants. On further appeal, the court vacated this result. Another inmate stated that in the five days preceding the suicide attempt, the guards ignored the detainee’s requests to see the crisis staff. Three hours after the suicide attempt, a county detective obtained a 25-minute interview with the inmate about the attempt, which was captured on video.
The video was erroneously not admitted at trial, even though this testimony was the lynchpin of the plaintiff’s case and the defendants had stipulated to the showing of the video. While the inmate testified at trial, the passage of seven years had dimmed his recollection and his demeanor at trial was notably different from his demeanor in the video. The appeals court stated it had “no assurance” that the deliberate indifference claim “was fairly tried.” Pittman v. Madison County, #16-3291, 2017 U.S. App. Lexis 12659 (7th Cir.).
Religion
****Editor's Case Alert****
A Rastafarian inmate with dreadlocks claimed that Department of Corrections grooming policies violated his religious freedom rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a), prohibiting his continued wearing of dreadlocks when he was transferred to a state facility. A federal appeals court overturned the trial court’s denial of relief. The defendant Department failed to satisfy its burden of showing that the policies were the least restrictive means of serving a compelling interest. In this case, the defendant had a full and fair opportunity during a two-day bench trial to satisfy this burden, and failed to do so.
At trial, the plaintiff introduced into evidence the grooming policies of the prisons of 39 other jurisdictions (including the U.S. Bureau of Prisons), all of which would either outright allow him to have dreadlocks or afford him the opportunity to apply for a religious accommodation that would allow dreadlocks. This figure was compared to the evidence introduced by defendant that six jurisdictions, in addition to itself, would not permit the plaintiff to have dreadlocks under any circumstances. In the face of evidence that “many prisons offer an accommodation, a prison must, at minimum, offer persuasive reasons why it believes that it must take a different course.”
The appeals court granted the plaintiff’s request for a declaration that the grooming policies, as applied to him, violated RLUIPA and enjoining the Department from enforcing the grooming policies against him. Ware v. Louisiana Dept. of Corrections, #16-31012, 2017 U.S. App. Lexis 13750 (5th Cir.).
Retaliation
A sexually violent predator civilly committed for treatment in a Special Treatment Unit was subjected at least annually to an interview by members of a Treatment Progress Review Committee (TPRC). The committee then considered a range of materials to formulate a recommendation about whether the patient should progress to the next step in the program.
A member of the committee wrote a report recommending that the patient not advance in treatment. The report recognized that this was “not consistent” with his treatment team's recommendation, but concluded that he “had not fully met the treatment goals,” provided a detailed overview of his sexual and non-sexual offenses, diagnostic history, and clinical treatment, and summarized the results of an interview, including that “it appears that he denies, minimizes or justifies much of his documented offense history,” and that “[h]e did not demonstrate remorse for his crimes or empathy for his victims.”
The patient sued, alleging retaliation for his First Amendment-protected participation in legal activities on behalf of himself and other sexual predator residents. A federal appeals court concluded that he was entitled to qualified immunity, reasoning that the plaintiff pleaded facts reflecting that the defendant based her recommendation on the medically-relevant collateral consequences of his protected activity, but has not sufficiently pled that the recommendation was based on the protected activity itself as required to show First Amendment retaliation. Oliver v. Roquet, #14-4824 858 F.3d 180 (3rd Cir. 2017).
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Report non-working links here
Federal Prisons: Facilities Operation Manual, Program Statement 4200.12, Federal Bureau of Prisons (July 18, 2017).
Female Inmates: Provision of Feminine Hygiene Products, Program Statement 001-2017 (August 1, 2017).
Reference:
• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently-noted jail and prisoner law resources.
AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - Orleans Hotel, Las Vegas
The Biometric, Psychological and Legal Aspects of Lethal and
Less Lethal Force and the Management, Oversight, Monitoring,
Investigation and Adjudication of the Use of Force
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
Click here for further information about all AELE Seminars.
First Amendment – See also, Retaliation
Medical Care – See also, Attorneys’ Fees
Personal Appearance – See also, Religion
Prison Litigation Reform Act: Attorneys’ Fees – See also, Attorneys’ Fees
Prisoner Assault: By Officers – See also, Attorneys’ Fees
Sexual Offenders – See also, Retaliation
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Return to the monthly publications menu
Access the multi-year Jail and Prisoner Law Case Digest
List of links to court websites
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