February 2018 Jail and Prisoner Law Bulletin

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Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations

Oct. 29-Nov. 1, 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 February
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CONTENTS

Digest Topics
Access to Courts/Legal Access

Federal Tort Claims Act

Mail

Prison Litigation Reform Act: Exhaustion of Remedies

Prisoner Assault: By Inmate (2 cases)

Prisoner Transport

Religion

Sex Offenders

Visitation

Resources

Cross_References

AELE Seminars:

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

Public Safety Discipline and Internal Investigations

Oct. 29-Nov. 1, 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 Access

An Illinois prisoner claimed that 43 prison employees and the Illinois Department of Corrections obstructed his access to the courts at four different facilities over a period of seven years. Actions objected to included insufficient access to law libraries and to his excess legal storage boxes, inability to send mail required to pursue his litigation, and denial of supplies. The trial court dismissed a number of defendants and claims, then entering summary judgment for the rest of the defendants. A federal appeals court upheld this result. The plaintiff’s strongest claim, that prison officials refused to advance him money for legal mail in 2006-2010 was untimely and barred by the statute of limitations. The appeals court also noted that “Owens—no stranger to the courts in this circuit—again filed an omnibus complaint against unrelated defendants and with claims arising from alleged conduct at four different prisons. As we have told him before, this scattershot strategy is unacceptable under Rule 20(a)(2) … and the Prison Litigation Reform Act, 28 U.S.C. 1915(b), (g).” Owens v. Evans, #16-1645, 2017 U.S. App. Lexis 26848 (7th Cir.).

Federal Tort Claims Act

A woman pregnant with her tenth child was taken into custody on federal bank fraud charges when her pregnancy was in its 35th week. U.S. Marshals arranged for her housing at a facility with a full-time medical staff and a relationship with an obstetrics practice. Her blood pressure was high. No medical history was taken. She did not disclose that with her ninth pregnancy, she had an emergency cesarean section at 34 weeks. She signed a release but the facility did not obtain her prenatal care records.

For 10 days, she had multiple contacts with medical staff, and told a nurse that she was not having any problems. She then refused to be seen and signed a refusal form. Days later, she awoke with pain and called for assistance. She was taken to a hospital by ambulance, but again denied having any complications or chronic medical problems. The nurse was unable to find fetal heart tones, and a doctor ordered an emergency cesarean section. The woman suffered a complete abruption of the placenta which stopped the flow of oxygen to the baby, who has severe, permanent disabilities. The abruption likely occurred in the ambulance or at the hospital, because the child would not have survived had it occurred earlier.

Her father sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, alleging medical malpractice. A federal appeals court affirmed summary judgment for the defendants. Placement and retention of the mother at the facility fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. There was no indication that she required immediate care before the morning of the birth, when staff members promptly called for help. Lipsey v. United States, #17-1063, 2018 U.S. App. Lexis 203 (7th Cir.).

Mail

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

A woman claimed that a county jail’s new mail policy that permitted only postcards for incoming non-privileged mail violated her First and Fourteenth Amendment rights by impermissibly restricting her ability to communicate with her son who was then an inmate there. A federal appeals court upheld the trial court’s exclusion from evidence of incoming-mail policies from other institutions that permitted inmates to receive multi-page letters, holding that the exclusion of the other institutions’ mail policies was harmless error and the postcard-only incoming-mail policy was constitutional.

The court ruled that the postcard-only policy was rationally related to the legitimate penological interests of an efficiently run and secure institution. Additionally, alternative means of communications were available such as collect calls, and visits, and the policy did not limit the number of cards that could be sent. The court explained that accommodating the plaintiff would result in a significant reallocation of resources and would interfere with the jail’s ability to maintain security and efficiency. Simpson v. County of Cape Girardeau, #17-3782, 2018 U.S. App. Lexis 13 (8th Cir.).

Prison Litigation Reform Act: Exhaustion of Remedies

A Rastafarian prisoner sued as a pauper, challenging the discontinuation of Rastafarian worship services in his prison. He appealed the dismissal of his lawsuit for failure to state a claim and failure to exhaust administrative remedies. A federal appeals court held that failure to exhaust plaintiff's administrative remedies was not a proper basis for dismissal, since a failure to exhaust was not apparent on the face of the complaint. Further, the complaint sufficiently alleged that the defendants’ refusal to allow the group Rastafarian service substantially burdened his religious practices. The dismissal of claims against the prison chaplain was upheld, however, as the plaintiff failed to allege his involvement in the manner necessary to impose liability. Wilcox v. Brown, #16-7596, 877 F.3d 161 (4th Cir. 2017).

Prisoner Assault: By Inmate

When a prisoner complained that another inmate threatened him, he was moved to another cell block in the county jail. But jail personnel failed to put the other inmate on the facilities’ “enemies” list. Later, the other inmate attacked the prisoner in a hall, resulting in serious injuries. In a lawsuit against two deputies, alleging that they acted with deliberate indifference to his health and safety, in violation of the Eighth Amendment’s prohibition against “cruel and unusual punishments.”

The trial court instructed the jury that “[d]eliberate indifference is established only if the defendants . . . had actual knowledge of a substantial risk that [the plaintiff] would be injured . . . and if the defendants recklessly disregarded that risk by intentionally refusing or failing to take reasonable measures to deal with the risk.” The plaintiff objected to the inclusion of the word “intentionally.” A federal appeals court upheld a verdict for the defendants, ruling that the instruction adequately and fairly stated the controlling law. Deliberate indifference is the intentional taking of a risk that the defendant knows might cause harm while lacking any intent to cause such harm. Anderson v. Kingsley, #16-6957, 877 F.3d 539 (4th Cir. 2017).

A prisoner was stabbed eleven times by another prisoner, a gang member. After surviving the attack, he sued, claiming that four correctional employees (an associate warden and three correctional officers) violated his Eighth Amendment rights by failing to protect him from the assault. The trial court granted summary judgment in favor of the defendants. Finding that the associate warden may have had only one encounter with the plaintiff since his incarceration there, the federal appeals court found summary judgment proper as to the claims against him. However, the appeals court did not agree that the remaining defendants were entitled to qualified immunity, and reversed summary judgment as to claims involving their involvement in the attack. The plaintiff presented evidence that they were subjectively aware of a substantial risk of serious harm that the gang posed to him. Wilson v. Falk, #16-1310, 2017 U.S. App. Lexis 25557 (10th Cir.).

Prisoner Transport

A Virginia inmate sued, claiming that his constitutional rights were violated when he experienced a “rough ride” while being transported in a van. In regard to the Eighth Amendment claim, the federal appeals court ruled that the plaintiff had shown facts making out a violation of a clearly established right based on failure to ensure safe transport and adherence to correctional department procedures. Therefore, the court overturned the grant of summary judgment and remanded as to two officers, including the driver of the van. However, because he failed to show sufficient facts for supervisory liability, the court affirmed the grant of summary judgment for three other defendants. Thompson v. Commonwealth of Virginia, #15-7680, 2017 U.S. App. Lexis 25486 (4th Cir.).

Religion

Jewish prisoners in Indiana were transferred from one facility to another in order to keep supplying them with a kosher diet. The prisoners claimed that the department of corrections Director of Religious and Volunteer Services violated the Free Exercise Clause of the First Amendment by failing to delay that transfer until the new facility also offered opportunities for Jewish group worship and study.

At the time of the transfer, the department was unable to recruit Jewish volunteers to the second facility to lead worship or train inmate leaders. A federal appeals court upheld summary judgment for the defendant, ruling that he did not violate clearly established law. The plaintiffs cited no case holding that the Free Exercise Clause provides prisoners the right to group worship when outside volunteers were unavailable to lead or train inmates or holding that a prison official violates the Free Exercise Clause by transferring inmates to a facility that does not provide congregate worship and study, or by failing to delay a transfer until the new facility provides congregate worship and study. Kemp v. Liebel, #17-1314, 877 F.3d 346 (7th Cir. 2017).

Sex Offenders

An Alabama prisoner sued, claiming that the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) and the correctional classification manual violated his procedural due process, substantive due process, and ex post facto rights by classifying him as a sex offender. A federal appeal court ruled held that the trial court did not err in dismissing the procedural due process claim because he was convicted of a crime that constituted a sex offense under Alabama law at the time of his conviction and thus was not entitled to any additional process before being classified as a sex offender by prison officials. Furthermore, plaintiff failed to raise a viable substantive due process claim or ex post facto claim. Waldman v. Alabama Prison Commissioner, #15-15535, 871 F.3d 1283 (11th Cir.).

Visitation

A Wisconsin prisoner convicted of sexually assaulting a minor and armed robbery sued correctional officials, claiming that they violated his rights to due process and freedom of association by denying him visits with his daughter in 2004 and 2013. When he inquired about visitation in 2013, he was told that he would first have to complete a sex offender program that was not then available. Instead of filing a formal request, he filed suit. The court dismissed the claims based on 2004 as time‐barred.