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ISSN 0739-0998 - Cite this issue as: 2018 JB May
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Digest
Topics
Chemical Agents
DNA
First Amendment
Prison and Jail Conditions: General
Prison Litigation Reform Act: Exhaustion of Remedies
Prison Litigation Reform Act: “Three Strikes” Rule
Prisoner Assault: By Inmates
Prisoner Death/Injury
Religion
Retaliation
AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
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.
Chemical Agents
After an “agitated” prisoner refused to obey orders and locked himself in a prison’ outdoor recreation yard while threatening prison officials, it was decided to drop tear gas in the yard to gain control of him. An intake vent in the yard drew the gas in and filtered it into the prison. Many prisoners in their cells were exposed to the gas. Prisoners housed in two sections of the prison were evacuated after the prisoner in the recreation yard was secured. The prisoners in two other sections, however, were not evacuated. A class action on behalf of about one hundred prisoners was brought against prison officials for violations of the Eighth Amendment and the Utah state Constitution in exposing the prisoners to gas and then failing to provide adequate medical care.
A federal appeals court upheld summary judgment for the defendants, finding that their conduct, at most, only accidently exposed the prisoners to CS gas, and qualified immunity shielded them from liability for mistakes like this one. Violating the Utah Constitution also required more-than-negligent conduct, and the prison officials’ conduct was “textbook negligence.” Redmond v. Crowther, #16-4131, 882 F.3d 927 (10th Cir. 2018).
DNA
The California “DNA Fingerprint, Unsolved Crime and Innocence Protection Act” (DNA Act), is constitutional as applied to a person who was validly arrested on “probable cause to hold for a serious offense” and who was required to swab his cheek as part of a “routine booking procedure” at a county jail. The California Supreme Court held that this requirement was reasonable under both the Fourth Amendment and Cal. Const. art. I, 13, and that therefore the defendant was subject to criminal penalties for refusing to submit to the procedure. People v. Buza, #S223698, 4 Cal. 5th 658, 2018 Cal. Lexis 2245.
First Amendment
It was inappropriate to decide that a state prison’s anti-pornography policy was facially unconstitutional before deciding whether the policy was unconstitutional as applied to a prisoner. Determining the as-applied challenge first would reflect the deference owed to corrections officials and could allow for the fashioning of more limited relief. The trial court’s as-applied analysis was erroneous because it improperly evaluated the prisoner’s claims under the prison’s former pornography policy, which had been superseded by the policy the prisoner challenged. The differences between the policies were significant, and application of the former policy required guessing what the prison would or would not have censored. Acting under the 2014 policy, prison staff rejected a number of items that were mailed to the plaintiff. The prohibited materials included two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition, as well as four Japanese manga comics from a series called Pretty Face, nine images of Renaissance artworks depicting nudity, a book on Matisse and Picasso, and a poster featuring an iconic Coppertone suntan-girl advertisement. Because the injunction granted against the 2014 policy was based on the superseded 2000 policy, the ruling below was vacated for further proceedings. Sisney v. Kaemingk, #16-4313, 2018 U.S. App. Lexis 8059 (8th Cir.).
Prison and Jail Conditions: General
Sexually violent predator (SVP) detainees in a California correctional facility were subject to essentially the same conditions of confinement as their criminal counterparts and were more restrictive than conditions in a state hospital. The conditions in administrative segregation to which the detainee was subjected were substantially more restrictive than the conditions faced by the general criminal population and the detainee was viciously attacked. These conditions could be found to amount to impermissible punishment. The county and sheriff in his official capacity could be held liable in damages, but the sheriff could not be held liable in his individual capacity, so summary judgment for the county and sheriff in his official capacity was overturned. King v. County of Los Angeles, #14-55320, 2018 U.S. App. Lexis 6045 (9th Cir.).
Prison Litigation Reform Act: Exhaustion of Remedies
Most of a prisoner’s civil rights claims were properly rejected for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act, but summary judgment on his excessive force claim based on an alleged 2010 assault by a staff member was vacated. A genuine issue of material fact existed regarding whether he exhausted that claim because there was a conflict between the prison’s records and the plaintiff’s deposition testimony. Some type of notice and an opportunity to respond are needed before a trial court decides factual disputes regarding exhaustion. Paladino v. Newsome, #15-2058, 2018 U.S. App. Lexis 6557 (3d Cir.).
Prison Litigation Reform Act: “Three Strikes” Rule
A plaintiff prisoner was properly denied permission to proceed with his federal civil rights lawsuit as a pauper or to file future lawsuits as a pauper unless he was under imminent threat of serious physical injury when the record showed that he had previously had more than three “strikes,” lawsuits dismissed as frivolous, malicious, failing to state a claim upon which relief may be granted, or which sought monetary relief from a defendant entitled to immunity from such relief. The lawsuit was dismissed without prejudice to his filing a new action with payment of the filing fee. Akassy v. Hardy, #17-2737, 2018 U.S. App. Lexis 8506 (2nd Cir.).
Prisoner Assault: By Inmates
An inmate sued two correctional officers for alleged failure to protect him from assault by other prisoners. After a jury returned a verdict for the defendant officers, he appealed. A federal appeals court upheld the result and ruled that the trial court did not abuse its discretion in refusing to permit cross examination of a corrections officer about an unrelated disciplinary report about him which the plaintiff claimed showed that the officer might lie, because the probative value of the evidence was low, and the danger of unfair prejudice and a “mini-trial” was great. The appeals court also held that the trial court did not plainly err in admitting evidence of the second disciplinary incident, which was less probative than the first and similarly risked unfair prejudice and confusion of the issues. Finally, the district court did not abuse its discretion in admitting testimony about the plaintiff’s aggressive behavior toward cellmates where any error was harmless. Walker v. White, #17-1345, 2018 U.S. App. Lexis 6743 (8th Cir.).
Prisoner Death/Injury
A prisoner in solitary confinement allegedly threw liquid at a correctional officer. After a cell extraction team removed him from his cell, he was unresponsive, and a doctor pronounced him dead. His mother sued two officers for excessive force and the warden for alleged failure to train. After a trial, a judgment in favor of the defendants was entered. A year later, the New York Times published an article about the cell extraction team, based on a letter written by a former team member. Based on this new evidence, a new trial was granted. A federal appeals court upheld the order granting a new trial and reversed a summary judgment for the defendants. The plaintiff acted diligently in requesting discovery responses that should have included the letter, which was material, controlling evidence about the extraction team’s conduct. Summary judgment was inappropriate because the court granted a completely new trial, requiring a new jury to examine all factual disputes. The trial court should have reviewed all material facts in a light most favorable to the plaintiff. Luna v. Bell, #17-5675, 2018 U.S. App. Lexis 8602, 2018 Fed. App. 69P (6th Cir.).
Religion
A Jewish prisoner sued the official charged with coordinating, directing, and monitoring prisoners’ religious activities for violating his First Amendment right to free exercise of religion by denying his request for a kosher diet. The defendant moved for summary judgment on the basis of qualified immunity, arguing that his conduct was, at most, negligent and, thus, did not rise to the level of a First Amendment violation. The trial court denied the request for qualified immunity, concluding that it was clearly established that a kosher-meal accommodation was necessary if the prisoner had an honest belief that the accommodation was important to his free exercise of religion. It further ruled that the record, read in the light most favorable to the prisoner, was sufficient to allow a reasonable juror to find that the defendant consciously or intentionally interfered with the right to free exercise by denying the kosher-diet request. A federal appeals court decided that each aspect of the defendant’s appeal amounted to a challenge of the trial court’s determinations of evidentiary sufficiency. Therefore, the appeals court lacked jurisdiction over an interlocutory appeal, and dismissed the appeal. Ralston v. Cannon, #16-1372, 2018 U.S. App. Lexis 6187 (10th Cir.).
Retaliation
****Editor's Case Alert****
A prisoner complained after he was given only half a serving in the lunch line. A prison guard allegedly then yelled “shut the fuck up if you wanna eat.” The lunch supervisor then gave the prisoner a full portion, but the guard allegedly then said “if you’re going to complain then you’re going to get a misconduct,” and gave the prisoner a ticket. The prisoner claimed that after that he was given shortened portions because of the guard’s retaliation. A hearing officer found the guard’s statement “more credible” without viewing available video footage, The prisoner was found guilty of creating a disturbance and lost privileges for seven days. A federal appeals court ruled that the factual findings made at the prisoner’s minor misconduct hearing did not have a preclusive effect in federal court on an unlawful retaliation claim. The court declined to adopt the “checkmate doctrine,” which provides that when a prison hearing finds that a prisoner has committed an actual violation of prison rules and the finding is based on some evidence, it “essentially checkmates” a retaliation claim. The prisoner introduced sufficient evidence to withstand summary judgment on his First Amendment retaliation claim against the guard individually. By complaining about the insufficient quantity of food he had received, the prisoner was pursuing a grievance about prison conditions and seeking redress of that grievance. Therefore, he was engaged in conduct protected by the First Amendment. The appeals court affirmed summary judgment on the prisoner’s official-capacity claim, however, based on Eleventh Amendment immunity. Maben v. Thelen, #17-1289, 2018 U.S. App. Lexis 8389, 2018 Fed. App. 65P (6th Cir.).
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Federal Prison Policies: Inmate Property Claims, Program Statement 5580.09, Federal Bureau of Prisons (March 20, 2018).
Reference:
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AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Click here for further information about all AELE Seminars.
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Diet – See also, Religion Diet—See also, Retaliation First Amendment – See also, Retaliation Mail – See also, First Amendment Prisoner Death/Injury – See also, Chemical Agents Sexual Offenders – See also, Prison and Jail Conditions: General
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