January 2018 Jail and Prisoner Law Bulletin

AELE Seminars:

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.

Jail and Prisoner Law Bulletin
A civil liability law publication for officers, jails, detention centers and prisons
ISSN 0739-0998 - Cite this issue as: 2018 JB January
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CONTENTS

Digest Topics
Access to Courts/Legal Info

Defenses: Statute of Limitations

Disability Discrimination: Prisoners

Mail

Medical Care

Prison Litigation Reform Act: “Three Strikes” Rule

Religion

Retaliation

Segregation: Administrative

Youthful Prisoners

Resources

Cross_References

AELE Seminars:

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.

MONTHLY CASE DIGEST

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.

Access to Courts/Legal Info

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

Although there is no automatic right for a pro se prisoner to have a court recruit a lawyer for them, their request for counsel is entitled to careful consideration. In this case, the trial court abused its discretion in failing to recruit counsel for him. It found that he had made reasonable efforts to obtain counsel, and that he stated that he had only an eighth grade education and was heavily medicated with psychotropic drugs. The trial court did not address or specifically conclude that it disbelieved his explanation that another inmate helped him prepare the documents that it looked at as evidence of his ability to litigate his case himself. Concretely, he claimed that guards beat him and taunted him with racial slurs as punishment for filing grievances. These claims were dismissed by the trial court because these claims about the incident conflicted with his disciplinary record. The suit would not have been barred had he argued that the guards used more force than was reasonably necessary to subdue him, but he “plead[ed] himself out of court” by insisting that he did nothing to provoke the beating. An appointed lawyer may have been able to avoid this result. Robinson v. Scrogum, #16-3363, 2017 U.S. App. Lexis 24434 (7th Cir.).

Defenses: Statute of Limitations

Sentenced to 300 days imprisonment for a probation violation, a trial court stated that a prisoner should be released in September 2013 after taking into account good-time credit. In August of 2013, however, jail personnel informed him that he would not be released until March 2014. He filed a petition for a writ of habeas corpus, but jail personnel were claimed to have failed to transport him to court to litigate it. When it was finally heard on Dec. 16, 2013, the court ruled that he should have been released in September and he was immediately released on $50,000 bond, a bond released the next month. A federal civil rights lawsuit for false imprisonment resulted in judgment on the pleadings for the defendants. A federal appeals court affirmed. The plaintiff was released from prison over two years before he filed his lawsuit, so the claim was time-barred. The time he spent released on bond was not a continuation of his false imprisonment. Brown v. Dart, #16-4179, 2017 U.S. App. 24535 (7th Cir.).

Disability Discrimination: Prisoners

A pretrial detainee was deaf since birth and primarily uses American Sign Language (ASL) to communicate. He sued the state and county, claiming violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act because they did not provide him with an ASI interpreter at his arraignment on criminal charges or an ASI interpreter or other auxiliary aids needed to effectively communicate while he was in pretrial detainment and under pretrial supervision. A federal appeals court upheld summary judgment on claims for injunctive relief against the state, as it was mere speculation that it would again fail to provide an ASI interpreter if he again appeared in court as a pretrial detainee. It upheld summary judgment for the county on claims for compensatory damages, as there was no evidence that the county acted with deliberate indifference. Updike v. Multnomah County, #15-35254, 870 F.3d 939 (9th Cir. 2017).

Mail

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

A lawsuit challenged a county jail’s policy of prohibiting the delivery of unsolicited commercial mail to inmates. The plaintiff publisher of a magazine aimed at inmates claimed that this violated the First Amendment. A federal appeals court evaluated the mail policy under the test established for reviewing constitutional challenges to prison regulations in Turner v. Safley, #85-1384, 482 U.S. 78 (1987), and found that the ban was rationally connected to a legitimate government interest. Electronic kiosks were an adequate alternative, and distributing the physical magazine itself would have a significant impact on the allocation of jail resources, and the jail’s mail policy was not an exaggerated response to those problems. Crime, Justice & America, Inc. v. Honea, #15-16119, 2017 U.S. App. Lexis 24167 (9th Cir.).

Medical Care

A prisoner was injured while lifting a heavy door at his prison job, hearing a “snap” in his back and experiencing pain in his leg and hip. He was dissatisfied to the response of the prison’s medical staff o his requests for treatment, receiving a three-year runaround, during which his pain was ignored. He further claimed that the Clinical Director canceled his insulin prescription in retaliation for him filing a complaint about the inadequate care. As an insulin-dependent diabetic, he was unable to control his blood sugar and suffered additional pain and harm. He filed a second complaint with the prison about the insulin deprivation, and sued the Clinical Director and another prison physician. A federal appeals court affirmed the rejection of these claims, acknowledging that the prisoner’s “allegations are troublesome,” but noting important differences between ordinary, or even aggravated, medical malpractice, which this might have been, and the deliberate indifference required for an Eighth Amendment violation. Cesal v. Molina, #15-2562, 851 F.3d 714 (7th Cir. 2017).

Prison Litigation Reform Act: “Three Strikes” Rule

A case in which a district court declines to exercise supplemental jurisdiction over a prisoner's state-law claims does not count as a strike under the Prison Litigation Reform Act (PLRA), 28 U.S.C. 1915(g). Because of this, a federal appeals court found that a trial court improperly barred the plaintiff from proceeding as a pauper, as he did not have three strikes. A trial court must independently evaluate whether the prior dismissals were dismissed on one of the enumerated grounds and therefore count as strike, rather than simply defer to an earlier district court's contemporaneous statement that a dismissal counts as a strike. Fourstar v. Garden City Group, Inc., #15-5049, 2017 U.S. App. Lexis 23950, 2017 WL 5707547 (D.C. Cir.).

Religion

A federal appeals court upheld the dismissal of a prisoner’s religious freedom claims as frivolous and for failure to state a claim. His claims for declaratory and injunctive relief under the Religious Land Use and Institutionalized Persons Act (RLUIPA), was moot after his transfer to a different detention center. His First Amendment claim failed because, other than not being allowed to attend Jumu'ah prayer services, he has not identified any other restrictions on his ability to express or exercise his Muslim faith; Coleman v. Lincoln Parish Detention Center, #16-30109, 858 F.3d 307 (5th Cir. 2013).

Retaliation

A federal appeals court found that a federal prisoner adequately pled claims for unlawful retaliation after he filed a grievance expressing safety concerns following several power outages at the prison. Brunson v. Nichols, #14-31350, 875 F.3d 275 (5th Cir. 2017).

Segregation: Administrative

A federal appeals court agreed with the trial court that an inmate’s due process rights were violated when correctional officials assigned him as a pretrial detainee to administrative segregation without an individualized assessment of his risk to institutional security, but the defendants were entitled to qualified immunity. It was not clearly established that a substantive due process violation would result from the plaintiff’s placement in administrative segregation based solely on his prior assignment to (and failure to complete) administrative segregation. In this case, he was discharged from administrative segregation and released, arrested again on new drug-related offenses, and then re-admitted into administrative segregation. Allah v. Milling, #16-1443, 2017 U.S. App. Lexis 23631 (2nd Cir.).

Youthful Prisoners

In a prior case, the highest court in Massachusetts held that the procedure used by the Department of Correction to determine the security classification of juvenile homicide offenders violated a state statute which prohibits the Department from categorically barring juvenile homicide offenders from being placed in minimum security facilities. Since then, the Department developed a modified process for classifying juvenile homicide offenders. Now juvenile homicide offenders who were also petitioners in the earlier case challenged that modified process. The Massachusetts high court held that, after applying the earlier holding, the Department continued to fall short of the requirements of the statute. The Department’s written explanations for blocking the majority of objectively qualifying juvenile homicide offenders from placement in a minimum security facility did not go far enough to ensure that the classification procedure was actually individualized and that no juvenile homicide offender was categorically barred from classification to a minimum security facility. Deal v. Commissioner of Correction, #SJC-12246, 478 Mass. 332, 2017 Mass. Lexis 781.

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Resources

Federal Prison Policies: Electronic Cigarettes. Program Statement 1640.06 Federal Bureau of Prisons. (Oct. 6, 2017).

Statistics: Jails in Indian Country, 2016, by Todd D. Minton, and Mary Cowhig, Bureau of Justice Statistics, (December 5, 2017 NCJ 250981).

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

Jail and Prisoner Legal Issues

Jan. 22-25, 2018 - Orleans Hotel, Las Vegas

The Biometric, Psychological and Legal Aspects of Lethal and