March 2018 Jail and Prisoner Law Bulletin

AELE Seminars:

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 March
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CONTENTS

Digest Topics
Access to Courts/Legal Info

DNA Testing

False Imprisonment

Filing Fees

Immigration Detainees

Medical Care

Medical Cost Recovery

Prison and Jail Conditions: General

Prisoner Assault: By Officers

Religion

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 Info

A federal appeals court rejected claims of denial of a prisoner’s First Amendment right of access to the courts and Fifth Amendment procedural due process claims related to prison disciplinary proceedings asserted under the implied cause of action theory adopted by the Supreme Court in Bivens v. Six Unknown Federal Narcotics Agents, #301, 403 U.S. 388 (1971). The appeals court noted that neither the U.S. Supreme Court or it had ever expanded Bivens to such claims. Further, the circumstances of the plaintiff's case against private employees at the residential reentry facility plainly presented a "new context" under Ziglar v. Abbasi, #15-1358, 137 S. Ct. 1843 (2017) (declining to apply Bivens to claims by alien detainees confined after 9-11 concerning their conditions of confinement), weighing against any such extension of Bivens. The court also stated that the plaintiff had alternative means for relief against the alleged violations of his First and Fifth Amendment rights by the private defendants. Vega v. United States, #13-35311, 2018 U.S. App. Lexis 2980 (9th Cir.).

DNA Testing

A detainee was acquitted of charges of voluntary manslaughter. However, prior to his release he was subjected to a DNA swab. He sued, claiming a violation of his Fourth Amendment rights against unreasonable searches. Before the claim could be resolved, he died. His mother and the personal representative of his estate wanted to be substituted in as the plaintiff. The trial court, ruling that the man’s death had “extinguished” the claim, dismissed the lawsuit instead. A federal appeals court overturned the ruling, finding that no federal statute or rule says anything about the survivorship of section 1983 federal civil rights claims, but the claim qualified as a “cause of action for . . . injuries to the person” under the Ohio state survivorship statute and, therefore, outlasted his death. Crabbs v. Scott, #17-3854, 2018 U.S. App. Lexis 1369, 2018 Fed App. 0015P (6th Cir.).

False Imprisonment

A federal appeals court upheld the dismissal of two lawsuits filed by a detainee for failure to prosecute. He claimed that his imprisonment was improperly prolonged as well as that he had been detained for too long earlier. The appeals court noted that the proceedings had been protracted because the plaintiff, who went in and out of jail, “dropped out of contact” with both the court and his appointed lawyer. His other conduct included repeatedly attempting to disqualify the defendants’ attorney, filing an interlocutory appeal, neglecting to prepare his case for trial, failing to attend a witness’s deposition, not responding to defense counsel’s communications, and failing to submit a witness list, exhibit list, proposed jury instructions, proposed voir dire questions, or his objections to the defendants’ pretrial submissions.

His later appointed attorney indicated that she had been unable to convince him to attend any meetings and had not heard from him in months. At one point, he “literally threw” a motion to recuse the judge at the courtroom deputy and told the judge “you’re recused.” Then he “abruptly left.” Under these circumstances, the appeals court stated, the trial judges had exhibited more patience than necessary” before dismissing the lawsuits. Dupree v. Hardy, #16-2212, 859 F.3d 458 (7th Cir. 2017).

Filing Fees

An Oklahoma prisoner sued several state prison officials in state court, qualifying to proceed as a pauper under state law. The defendants then removed the case to federal court and paid a required federal filing fee. The trial court then ruled that the plaintiff, who had previously abused the federal courts by filing frivolous lawsuits, was not eligible to proceed as a pauper and dismissed his case because he failed to pay the filing fee. A federal appeals court reversed, holding that state-court plaintiffs whose cases are removed to federal court have no obligation to pay a filing fee since nothing in the applicable federal statute on proceeding as a pauper said anything to the contrary. Woodson v. McCollum, #17-6064, 875 F.3d 1304 (10th Cir. 2017).

Immigration Detainees

A federal appeals court upheld a preliminary injunction against alleged inhumane and punitive treatment in a lawsuit brought by civil detainees confined in U.S. Customs and Border Protection facilities in the Tucson, Arizona area. The appeals court ruled that the trial court did not abuse its discretion in granting a preliminary injunction requiring that the defendants provide the detainees with mats and blankets after 12 hours, and properly applied prior precedent, supported by evidence in the record. Doe v. Kelly, #17-15381, 878 F.3d 710 (9th Cir.).

Medical Care

Overturning a magistrate judge’s denial of a preliminary injunction in a lawsuit claiming deliberate indifference to serious medical needs, a federal appeals court found that the plaintiff diabetic prisoner had specifically alleged that prison officials cancelled his prescribed diet on multiple occasions, forcing him to consume high-sugar meals up to four times a day, contrary to the orders of his unit doctor. Construing the pro se pleadings liberally, the court found that the plaintiff had alleged a pattern of knowing interferences with prescribed medical care for his diabetes, despite his multiple complaints and his official grievance, which were all essentially ignored. These claims were sufficient to state a claim for deliberate indifference and therefore showed a sufficient likelihood of success on the merits of his preliminary injunction. The plaintiff also claimed a substantial threat of irreparable injury. Jones v. TDCJ, #17-10302, 2018 U.S. App. Lexis 2176 (5th Cir.).

Medical Cost Recovery

Police officers investigating a domestic disturbance went to a home where a man then went into a bedroom and shot himself. They radioed for an ambulance which took the man to a hospital, where he received treatment while officers kept watch over him. Neither the man nor later his estate when he died could pay the hospital bill of almost $30,000, which was then billed to the city. The Colorado Supreme Court overturned rulings by the trial and intermediate appeals court interpreting Colorado’s “Treatment while in custody” statute as entitling the hospital to payment from the city, and assigning police departments (or any agency that detains people) a duty to pay healthcare providers for treatment of those in custody. The high court concluded that the statute did not create any duty to a healthcare provider. However, the hospital’s claim for unjust enrichment survived, and as that claim was contractual, the court held that the Colorado Governmental Immunity Act did not prohibit it, and ordered further proceedings. City of Arvada ex rel. Arvada Police Dept. v. Denver Health, 2017 CO. 97, 403 P.3d 609 (2017).

Prison and Jail Conditions: General

While death row inmates housed in cells without air conditioning showed that their Eighth Amendment rights had been violated and that it was appropriate to grant injunctive relief, the federal trial court exceeded the bounds of the Prison Litigation Reform Act (PLRA) and Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) by requiring facility-wide air conditioning and setting a maximum heat index. The trial court erroneously addressed the propriety of a maximum heat index, found that it was necessary, and issued a modified injunction that in some instances imposed it. Further proceedings were ordered. Ball v. LeBlanc, #17-30052, 2018 U.S. App. Lexis 2402 (5th Cir.).

Prisoner Assault: By Officers

As three correctional officers were preparing inmates to walk from the cell house to dinner, an inmate rushed out of his cell and attacked one of them. The other two officers took him to the ground, ordered him to “cuff up,” and claimed that he violently resisted. They denied striking him after he was restrained, but the inmate claimed that he was compliant and restrained in handcuffs when one of the officers used pepper spray on him. He also asserted that the officers then continued to beat him while he was restrained. His version of the incident was supported by his former cellmate and he stayed in the infirmary overnight with various cuts and bruises, a shoulder that appeared abnormal and complaints of pain. The next morning, the facility doctor sent him to a hospital, where another doctor treated his dislocated shoulder about 24 hours after the fight.

A federal appeals court upheld dismissal of deliberate indifference claims against facility nurses because the plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA) on claims against them. It also upheld trial court findings that the officers were more credible than the plaintiff and his witnesses and judgment in favor of all the remaining defendants. It was reasonable to infer from the officers’ testimony that the inmate sustained his injuries, including the facial injuries, when the officers tackled him and wrestled him into submission after he attacked them. Wilborn v. Ealey, #16-2106, 2018 U.S. App. Lexis 2825 (7th Cir.).

Religion

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

A Muslim prisoner showed a genuine factual dispute as to whether his rights were substantially burdened by the prison’s serving him foods that Nation of Islam dietary rules prohibited him from eating. A federal appeals court noted that the defendants failed to offer any institutional interest that they claimed justified the burdening of a prisoner’s rights in receiving a religious diet. The plaintiff claimed that his rights were violated under the First Amendment Free Exercise Clause, as well under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq. Summary judgment for the defendants was overturned. Carter v. Fleming, #17-6461, 879 F.3d 132 (4th Cir. 2018).

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Resources

Female Prisoners: Female Offender Manual, Federal Bureau of Prisons (January 2, 2018).

Prison Operations: Department Operations Manual, California Department of Corrections and Rehabilitation (with 2018 revisions).

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

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