June 2019 Jail and Prisoner Law Bulletin

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Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues
Jan. 13-16, 2020 - Orleans Hotel, Las Vegas

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Jail and Prisoner Law Bulletin
A civil liability law publication for officers, jails, detention centers and prisons
ISSN 0739-0998 - Cite this issue as: 2019 JB June
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CONTENTS

Digest Topics

Attorneys’ Fees

Medical Care: Mental Health

Parole

Prison Litigation Reform Act: “Three Strikes” Rule

Prisoner Assault: By Officers (2 cases)

Prisoner Discipline

Religion (2 cases)

Sex Offenders

Resources

Cross_References

AELE Seminars:

Public Safety Discipline and Internal Investigations

Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues
Jan. 13-16, 2020 - 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.

Attorneys’ Fees

A federal appeals court overturned the denial of an award of attorneys’ fees in a disability discrimination lawsuit brought by a prisoner under the Americans with Disabilities Act, (ADA). While the trial court correctly determined that Farrar v. Hobby, #91-990, 506 U.S. 103 (1992), provided the relevant legal framework for such an award, the appeals court ruled that the trial court was in the best position to determine whether this lawsuit achieved a “compensable public goal” justifying a fee award, despite a recovery limited to only nominal damages. The plaintiff argued that this was an unusual case justifying a fee award despite the limited damages because the litigation secured an American Sign Language (ASL) interpreter for the prisoner, achieved recognition of the rights of deaf probationers and prisoners to disability accommodations, deterred future ADA violations, and prompted necessary reforms in the defendants’ policies toward deaf individuals. Therefore, the court remanded for further proceedings on the attorneys’ fee issue Shelton v. Louisiana State, #18-30349, 919 F.3d 325 (8th Cir. 2019).

Medical Care: Mental Health

An intermediate California appeals court held that the state Sexually Violent Predators Act (SVPA) gave the trial judge discretionary authority to involuntarily medicate an incompetent person placed with the state hospital pre-commitment. It affirmed an order finding that the defendant did not have the capacity to refuse medical treatment and requiring him to undergo the involuntary administration of antipsychotic medication. While the defendant had not been committed to the state hospital, the judge had the discretionary authority under California Welfare and Institutions Code section 6602.5 to require his involuntary medication based upon a proper finding that he was incompetent to refuse medical treatment. He was provided with adequate due process, since he was represented by an attorney, given a full evidentiary hearing on request, and the trial judge expressly found that he lacked the capacity to refuse treatment. State Dept. of State Hospitals v. J.W., # F077220, 31 Cal. App. 5th 334, 242 Cal. Rptr. 3d 596, 2018 Cal. App. Lexis 1238

Parole

A juvenile prisoner in Virginia challenged his repeated denial of parole. The trial court granted the defendant’s motion to dismiss, ruling that juvenile-specific Eighth Amendment protections do not apply to the prisoner because he was sentenced to life with parole, and that the Parole Board procedures satisfied procedural due process requirements under the Fourteenth Amendment. The federal appeals court declined to extend the U.S. Supreme Court’s Eighth Amendment rulings to juvenile parole proceedings to find that it is cruel and unusual punishment for a parole board to deny juvenile offenders parole without specifically considering age-related mitigating characteristics as a separate factor in the decision-making process.

With regards to a Fourteenth Amendment due process claim, the court concluded that, although there was no constitutional or inherent right to parole proceedings, Virginia state law gave rise to an expectation of parole proceedings that created a liberty interest in parole consideration. However, to satisfy the due process requirements triggered by this liberty interest, a parole board need only provide an offender with an opportunity to be heard and a statement of reasons stating why parole has been denied. In this case, the parole proceedings satisfied those due process requirements. Bowling v. Director, Virginia Dept. of Corrections, #18-6170, 2019 U.S. App. Lexis 9633 (4th Cir.).

Prison Litigation Reform Act: “Three Strikes” Rule

A federal appeals court upheld the dismissal of a prisoner’s complaint with prejudice as a sanction for misrepresenting his litigation history concerning his prior “three strikes” of lawsuits dismissed as frivolous or failing to state a claim. The court also ruled that trial courts may conduct limited inquiries into whether a litigant’s fear of “imminent danger” (an exception to the rule barring pursuing further litigation as a paper after three strikes) under 28 U.S.C. 1915(g) is plausible. In this case, the trial judge did not err by concluding that the claim of imminent danger was “without foundation,” since the prisoner’s explanation for why he was in imminent danger was both “circular” and completely conclusory. Additionally, he unquestionably received adequate notice, and had an opportunity to be heard, before the trial court dismissed his lawsuit. Shepherd v. Commissioner Annucci, #17-2261, 2019 U.S. App. Lexis 10971 (2d Cir.).

Prisoner Assault: By Officers

Two correctional officers were entitled to summary judgment on the basis of qualified immunity on an inmate’s claim that one of them pushed him against a pillar, causing him to hit his head in violation of the Eighth Amendment, and that the other officer sprayed pepper spray into his cell, in violation of both the Eighth Amendment and the First Amendment. The officers acted in response to the prisoner’s refusal on the basis of his religion of Taoism to comply with the facility’s rules requiring him to trim his facial hair, and tearing up a form he was asked to sign explaining his refusal to comply. A federal appeals court held that no genuine dispute of material fact existed as to whether the officers violated either the First or the Eighth Amendment. In the first instance, the inmate’s actions could be interpreted as constituting a threat to the officer and there was no indication that the use of force was wanton. In the second incident, in which a guard sprayed pepper spray into his cell after the inmate repeatedly refused to be cuffed and exit the cell for transfer to another unit, he failed to show that his protected activity (filing a claim based on the first incident) was a “substantial or motivating factor” for the decision to use pepper spray in violation of his First Amendment rights. Staples v. Gerry,#18-1727, 2019 U.S. App. Lexis 12146, 2019 WL 1785043 (1st Cir.).

Prison officials were improperly granted summary judgment in a prisoner’s lawsuit for excessive force, failure to intervene, deliberate indifference, and retaliation claims arising from use of force during his confinement. In the incident, officers attempted to regain control from the prisoner of a food tray slot into his cell which he had blocked. A federal appeals court ruled that the principles stated in Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), (barring federal civil rights liability if such an award would imply the invalidity of a conviction that had not been set aside) did not bar the prisoner’s excessive force claims. In this case, those claims implicated neither the validity of his underlying conviction nor the duration of his sentence. As to whether the defendants were entitled to qualified immunity, the court ruled that there was a genuine dispute of material fact concerning what occurred during the use of force, requiring further proceedings Bourne v. Gunnels, #17-20418, 2019 U.S. App. Lexis 11142, 2019 WL 1613537 (5th Cir.).

Prisoner Discipline

An Illinois inmate claimed that three corrections officers failed to follow mandatory legal procedures before imposing discipline upon him for violating prison rules relating to “unauthorized organizational activity” by “intimidation or threats” on behalf of the Latin Kings gang. He asserted that the process violated Illinois Administrative Code provisions relating to the appointment of hearing investigators to review all major disciplinary reports, service of the report no more than eight days after the commission of an offense or its discovery, provision of a written reason for the denial of his request for in-person testimony at his hearing, not placing him under investigation, failing to independently review notes, telephone logs, and recordings, denial of his requests to see the notes he had allegedly written, and lack of impartiality and improper refusal to recuse.

He asserted that he had made a timely objection to the committee members’ lack of impartiality, but the committee failed to document that objection. The Illinois Supreme Court affirmed that the inmate failed to state a claim for mandamus or common-law writ of certiorari for alleged violations of department regulations. Department regulations, the court stated, create no more rights for inmates than those that are constitutionally required. The prison officials did not, however, give reasons for denying the inmate’s witnesses and evidence during the disciplinary proceedings, nor did they explain that decision later; The court reversed with regard to the prisoner’s claim that the defendants violated his right to due process in revoking his good conduct credits. Fillmore v. Taylor, 2019 IL 122626, 2019 Ill. Lexis 451.

Religion

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

A North Carolina prisoner claimed that prison officials imposed a substantial burden on his religious exercise by refusing his request to celebrate four annual Rastafarian holy days, in violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment. A federal appeals court upheld judgment for the defendants based on different reasons than those stated by the trial court. It found that the prisoner failed to show that the defendants’ policies caused a substantial burden on his exercise of religion. He requested communal gatherings and feasts, but failed to identify any other Rastafarian inmate in the North Carolina prison system who would attend his proposed gatherings and join him in celebrating the four holy days. Accordingly, he did not show that the prison’s policies in fact caused a deprivation of his rights. Wright v. Lassiter, #18-6320, 2019 U.S. App. Lexis 11223, 2019 WL 1645790 (4th Cir.)

A Texas death row inmate sought to prohibit his execution until the state allowed his preferred spiritual advisor, a Buddhist priest, to be physically present in the execution chamber at the time of execution. After the petition was denied, he filed a federal civil rights lawsuit over the issue. The motion for a stay of execution was denied as untimely, a result upheld by the federal appeals court. The court ruled that held that the proper time for raising such claims has long since passed. The execution date was set on November 29, 2018 for March 28, 2019; and by his lawyer’s admission, he had waited until February 28 to first request that the state allow his Buddhist priest to not just meet with him prior to entering the execution chamber and watch from the viewing room, but actually enter the execution chamber with him; and then waited until March 20 -- eight days before the scheduled execution -- to raise his First Amendment and Religious Land Use and Institutionalized Persons Act claims. These claims were not brought before the federal courts until March 26. The appeals court also took note of the multiple warnings the plaintiff's lawyer had received in the past for filing motions at the last moment.

Subsequently, however, the U.S. Supreme Court, by 7-2, granted a stay of execution “pending the timely filing and disposition of a petition for a writ of certiorari unless the state permits Murphy's Buddhist spiritual advisor or another Buddhist reverend of the state's choosing to accompany Murphy in the execution chamber during the execution.” Murphy v. Collier, #19-70007, 919 F.3d 913 (5th Cir. 2019), stay granted, Murphy v. Collier, #18A985, 139 S. Ct. 1111, 203 L. Ed. 2d 633, 2019 U.S. Lexis 2298, 2019 WL 1410989.

Sex Offenders

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

Indiana mandates that all prisoners convicted of a sex offense complete the Sex Offender Management and Monitoring (INSOMM) program. INSOMM requires inmates to identify which illegal sexual acts they committed and how often. Based on their offense history, participants are sorted into risk groups for group therapy sessions. Those in the higher risk groups must complete more hours of therapy. In therapy, participants are required to fill out workbooks in which they describe all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. Participants enjoy neither immunity nor confidentiality for the disclosures made. They may not opt out of any part of the program and must respond fully to all questions.

A counselor who suspects that a participant has been deceptive or less than forthcoming may order polygraph testing. Failure to participate satisfactorily in INSOMM is a Major Conduct disciplinary violation. For a first offense, inmates are denied the opportunity to accrue good time credits to which they would otherwise be entitled by law. Continuing violations are punishable by revocation of already acquired good time credits. The plaintiff prisoner filed a class action lawsuit against these aspects of the program. A federal appeals court ruled that the disclosures required by INSOMM and the penalties imposed for non-participation, taken together, amounted to a violation of the Fifth Amendment right to be free from compelled self-incrimination. Lacy v. Butts, #17-3256, 2019 U.S. App. Lexis 12414, 2019 WL 1858276 (7th Cir.).

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Resources

Federal Prison Policies: Juvenile Delinquents, Program Statement #5216.06, Federal Bureau of Prisons (April 26, 2019).

Federal Prison Policies: Transfer of Offenders To or From Foreign Countries, Program Statement #5140.42 CN-1, Federal Bureau of Prisons (April 9, 2019).

Prisoner Discipline: Arizona Department of Corrections Inmate Disciplinary Procedure (Amended March 15, 2019). [Contains new provision under which prisoners who overdose in custody on illegal drugs and therefore require medical attention are “charged restitution for all medical-related expenses and cost of staff overtime.” For a discussion of this, click here.].