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Corrections Law for
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First Amendment
Monthly Law
Journal Article: Prisoners and Sexually
Explicit Materials, 2010
(2) AELE Mo. L. J. 301.
Monthly
Law Journal Article: Retaliation Against Prisoners
for Protected First Amendment Expression, 2010 (3) AELE Mo. L. J. 301.
A Utah prisoner believed that state law required correctional authorities to pay interest on prisoner’s fund accounts. He further believed that a bank that contracted with the Utah Department of Corrections to hold inmate funds was illegally retaining interest earned by the funds rather than paying it to prisoners. His lawsuit claimed that he was unlawfully retaliated against for investigating this by seizing his legal papers and issuing a negative parole report that caused the denial of parole despite him being a “model prisoner” similarly situated to other prisoners granted parole. Defendants in the lawsuit included correctional officials, the bank, and bank employees. He asserted both takings and due process violations for withholding interest on his funds and First Amendment retaliation claims. The trial court dismissed all claims except the retaliation claim and dismissed all defendants except five prison officials. It then granted summary judgment on the retaliation claims to the remaining defendants. In their motion to dismiss, the Utah Department of Corrections (UDOC) and the prison-official defendants in their official capacities claimed Eleventh Amendment immunity, as an arm of the State of Utah, but this was not addressed by the trial court. A federal appeals court ruled that the takings claim against the UDOC defendants had to be dismissed based on Eleventh Amendment immunity. Williams v. Utah Department of Corrections, #18-4058, 2019 U.S. App. Lexis 20157, 2019 WL 2911061 (10th Cir.).
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.).
A juvenile defendant involved in a fight appealed an order declaring him a ward of the juvenile court and placing him on probation after the trial court sustained a petition for battery with serious bodily injury. An intermediate California state appeals court upheld a probation condition prohibiting the defendant from discussing his case on social media, ruling that the condition was neither overbroad nor in violation of the defendant’s First Amendment rights. In this case, the defendant posted on social media “bragging” about being a 16-year-old felon. The appeals court held that the juvenile court had broad discretion in imposing probation conditions and that the restriction on social media postings was precise, narrow, and reasonably tailored to address the defendant’s posting conduct and rehabilitation. In re A.A., #B289821, 30 Cal. App. 5th 596, 2018 Cal. App. Lexis 1186, 2018 WL 6695839.
A prisoner claimed that prison officials conspired to violate his First and Eighth Amendment rights by placing him in segregation in retaliation for his grievances and complaints about his conditions of confinement. Rejecting this claim, a federal appeals court found that no reasonable jury could conclude that the plaintiff’s grievances and complaints were a motivating factor in or even entered into the decision to place him in segregation after a specific incident or that the defendants acted with deliberate indifference towards the plaintiff or otherwise disregarded or failed to act on knowledge of a substantial risk to his health and safety. Finally, no evidence, circumstantial or otherwise, was presented of an agreement to deprive him of his constitutional rights. Daugherty v. Harrington, #17-3224, 2018 U.S. App. Lexis 28753 (7th Cir.).
Reporters sought in-person recorded interviews with prisoners who participated in the 11-day 1993 Lucasville Prison Riot at the Southern Ohio Correctional Facility which resulted in the murder of one guard and nine prisoners, as well as tens of millions of dollars in damages. Four prisoners were sentenced to death for their involvement in the riot and are classified as restricted population inmates, who “pose a direct threat to the safety of persons, including themselves, or an elevated, clear[,] and ongoing threat to the safe and secure operations of the facility.” The prison denied permission for the interviews and a lawsuit by both prisoners and journalists claimed that the denials isolated the First and Fourteenth Amendments. A federal appeals court rejected these claims, finding that the prison regulation involved was reasonably related to legitimate penological interests and therefore constitutional. There was a rational connection between a policy prohibiting face-to-face interviews with the riot participants and the legitimate, neutral penological interest of prison security. Hanrahan v. Mohr, #17-4316, 2018 U.S. App. Lexis 27453 (6th Cir.).
A correspondent sent at least ten books, plus magazines and newspapers to a man serving a 300-day sentence in a county jail. More than 30 books were seized from the prisoner’s cell. Both the correspondent and the prisoner sued, claiming that limiting prisoners to three pieces of reading material violated the First Amendment. After the trial court rejected this claim, a federal appeals court upheld this result as to the correspondent, finding that she lacked standing as the prisoner received everything that she sent. But it vacated as to the claims of the prisoner, noting that he challenged the policy, rather than the particular seizure, and that the policy provides for no pre-deprivation process. Lyons v. Dart, #17-3170, 2018 U.S. App. Lexis 23861 (7th Cir.).
A federal trial court properly denied a motion to dismiss the plaintiff’s claims filed by the Director of the Missouri Department of Corrections. The plaintiff, an investigative journalist who was critical of the state’s execution procedures, claimed that the Departments procedures for inviting citizens to witness executions violated his rights under the Due Process Clause of the Fourteenth Amendment. After he wrote several articles criticizing the state’s execution practices, the Director allegedly never responded to his requests to witness any executions. The plaintiff had standing to pursue his claim as he suffered the injury of being excluded, along with all applicants sharing his particular viewpoint, from viewing Missouri’s executions. The 0laintiff could proceed with his lawsuit challenging the constitutionality of this exclusion. McDaniel v. Precythe, #17-1055, 2018 U.S. App. Lexis 20883 (8th Cir.).
A prisoner’s right not to be forced to serve as a prison informant or provide false information to prison officials is protected by the First Amendment. A federal appeals court, however, upheld summary judgment on the basis of qualified immunity to the defendants in a First Amendment retaliation lawsuit by a plaintiff prisoner who claimed that his constitutional rights were violated when he was put on a restricted status known as Involuntary Protective Custody for over six months because he refused the demands of prison guards to act as a snitch, or to falsify his account of a minor incident in the commissary. The appeals court ruled that the defendants were entitled to qualified immunity because the court had not previously recognized the particular speech and speech‐related activity as protected by the First Amendment. Burns v. Martuscello, #15-1631, 2018 U.S. App. Lexis 12123 (2nd Cir.).
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.).
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.).
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).
A sexually violent predator civilly committed for treatment in a Special Treatment Unit was subjected at least annually to an interview by members of a Treatment Progress Review Committee (TPRC). The committee then considered a range of materials to formulate a recommendation about whether the patient should progress to the next step in the program. A member of the committee wrote a report recommending that the patient not advance in treatment. The report recognized that this was “not consistent” with his treatment team's recommendation, but concluded that he “had not fully met the treatment goals,” provided a detailed overview of his sexual and non-sexual offenses, diagnostic history, and clinical treatment, and summarized the results of an interview, including that “it appears that he denies, minimizes or justifies much of his documented offense history,” and that “[h]e did not demonstrate remorse for his crimes or empathy for his victims.” The patient sued, alleging retaliation for his First Amendment-protected participation in legal activities on behalf of himself and other sexual predator residents. A federal appeals court concluded that he was entitled to qualified immunity, reasoning that the plaintiff pleaded facts reflecting that the defendant based her recommendation on the medically-relevant collateral consequences of his protected activity, but has not sufficiently pled that the recommendation was based on the protected activity itself as required to show First Amendment retaliation. Oliver v. Roquet, #14-4824 858 F.3d 180 (3rd Cir. 2017).
North Carolina law prohibited as a felony offense any registered sex offender accessing “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” Over 1,000 people were prosecuted under that law. A man registered as a sex offender was indicted after posting a statement on his personal Facebook profile about a positive traffic court experience, and state courts rejected his challenge to the law.The U.S. Supreme Court reversed, holding that the statute impermissibly restricts lawful speech in violation of the First Amendment. Today, the Court reasoned, one of the most important places to exchange views is cyberspace, particularly social media. Even if the statute was content-neutral and subject to intermediate scrutiny, the provision was not “narrowly tailored to serve a significant governmental interest.” While social media will be exploited by criminals and sexual abuse of a child is a most serious crime, the Court agreed, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” The statute “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” The state did not establish that this “sweeping law” was necessary to keep convicted sex offenders away from vulnerable victims. Social media websites today are integral to the fabric of modern society and culture. The First Amendment does, however, permit a state to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often precedes a sexual crime, such as contacting a minor or using a website to gather information about a minor. Packingham v. North Carolina, #15-1194, 137 S. Ct. 1730 (2017).
Prison officials were not
entitled to qualified immunity on a prisoner’s claim that they retaliated
against him for filing a grievance by imposing disciplinary charges against him
in violation of his First Amendment rights. While no prior published Fourth
Circuit decision directly addressed whether filing a grievance was protected
First Amendment conduct, the right was clearly established based on general
constitutional principles or a consensus of persuasive authority. In this case,
the inmate’s right was found to have been clearly established based on the
Second, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuits all
recognizing in published decisions that inmates possess a First Amendment's
Petition Clause right to be free from retaliation in response to filing a
prison grievance. Booker v. South Carolina Department of Corrections, #15-7679,
(4th Cir.).
Disciplinary
proceedings in three separate years resulted in a prisoner’s loss of 16 months
of earned good-conduct credit. He unsuccessfully, but diligently, pursued
administrative grievances regarding these hearings. His lawsuit challenged
proceedings from two years as having been retaliatory in violation of his First
Amendment rights, and that lawsuit was dismissed. He then sought habeas relief
in state court, which was denied. A federal habeas petition was denied as moot
when he was released from custody, and he then filed a second federal civil
rights lawsuit. While screening the complaint under 28 U.S.C. 1915(e) the trial
court found that the plaintiff stated claims for due process violations and for
retaliation but granted the defendants summary judgment, finding that the
lawsuit was barred by precedent requiring a prisoner plaintiff to pursue timely
collateral relief while in custody. A federal appeals court reversed, finding
that the prisoner did his best to obtain timely relief while in custody, and
“precedent requires no more.” Whitfield v. Howard, #15-2649, 2017 U.S. App.
Lexis 5383 (7th Cir.).
A prisoner claimed that the
defendant prison employees falsely classified him as a gang member in
retaliation for him filing a federal civil rights lawsuit against their
co-workers. California courts rejected his claim for habeas relief, finding
sufficient evidence to support the gang classification. A federal appeals court
ruled that this determination by the California courts precluded the prisoner’s
subsequent federal civil rights lawsuit asserting claims for violation of his
First Amendment retaliation and equal protection rights based on the same
classification. The appeals court held that the same primary right—the
prisoner’s right to be free from unlawful gang validation and placement in
segregated housing —was at issue in both suits. Because the suit involved the
same cause of action between the same parties after a final judgment on the
merits of the first suit, the subsequent suit was barred. Furnace v. Giurbino,
#13-17620, 838 F.3d 1019 (9th Cir. 2016).
A pretrial detainee in
a county jail died from acute renal failure after spending four and a half days
being detained in a glass-walled observation cell in the jail’s infirmary.
There was sufficient evidence to establish that a detainee's death was pursuant
to an unconstitutional de facto policy of confining incoherent detainees in an
observation cell for as long as it took for detoxification, contrary to the
jail's written guideline of confinement for four to eight hours, since the
detainee was provided with no medical treatment during his approximately four
and one half days of confinement. The inadequate medical care provided
constituted unconstitutional punishment since the jail staff expected the detainee
to heal himself despite knowing that the detainee hardly ate or drank for
almost four and one half days, the detainee's dehydration was obvious, and the
jail staff disregarded state standards to search the state
mental-health-treatment database which would have disclosed the detainee's
prior treatment. Federal civil rights liability was properly found and
the trial court improperly granted the defendant county's motion for judgment
as a matter of law on a state law wrongful death claim. The jury award of $1.5
million for pain and $917,000 for wrongful death was upheld, as well as a court
award of $410,116.01 for attorneys' fees and costs. Montano v. Orange County,
Texas, #15-41432, 2016 U.S. App. Lexis 21378 (5th Cir.).
A Muslim inmate at a federal
correctional facility claimed that he was terminated from his paid work
assignment because he complained that two correctional officers were subjecting
him to anti-Muslim harassment at work. He further claimed that this harassment
had caused him to refrain from praying at work. He asserted claims under the
First Amendment, the Fifth Amendment's equal protection guarantee, and the
Religious Freedom and Restoration Act (RFRA). Reversing dismissal of the
plaintiff's First Amendment retaliation and RFRA claims, a federal appeals
court ruled that a prisoner's oral grievance to prison officials can constitute
protected activity under the Constitution, that the RFRA prohibits individual
conduct that substantially burdens religious exercise, and that the RFRA provides
for monetary relief from an official sued in his individual capacity. The
appeals court affirmed dismissal of the First Amendment Free Exercise and Fifth
Amendment equal protection claims. Mack v. Warden, Loretto Fed. Corr. Inst.,
#14-2738, 2016 U.S. App. Lexis 18336 (3rd Cir.).
An inmate claimed that correctional officials
violated his rights by censoring his Chinese-language mail and denying him the
ability to make phone calls to China. A federal appeals court upheld the
rejection of his First Amendment claim as the restrictions were reasonably
related to legitimate concerns about security. The regulations were neutral in
furthering a substantial governmental interest unrelated to the suppression of
expression. His equal protection claim was rejected as there was no evidence
that the different treatment of Chinese speaking inmates from Spanish speaking
inmates was motivated by race or national origin or was a pretext for
discrimination. The government was not required to bear the financial burden of
paying for Chinese translations. Yang v. MO Dep't of Corr., #15-2231, 2016 U.S. App. Lexis
14924 (8th Cir.).
A prisoner claimed that an officer broke off the
antenna on his radio during a cell search, while the officer claimed that it
was already broken and secured by tape. The officer confiscated the broken
radio as contraband and refused the prisoner's request that he fill out an
incident report stating that he broke the radio. He alleged requested a
grievance form but did not receive one. Instead he was summoned to the security
office later that day and reprimanded for giving officers a hard time. He was
told he would receive a misconduct, and subsequently filed a grievance against
the officer over the radio incident after getting a form from someone else. He
was then found guilty of misconduct. Overturning dismissal of a First Amendment
retaliation claim, a federal appeals court held that not every violation of
prison protocols supported by some evidence bars such a claim, especially
relatively minor offenses, such as a radio antenna secured by tape. Watson v.
Rozum, #13-3510, 2016 U.S. App. Lexis 15429 (3rd Cir.).
A prisoner's complaint about being assaulted and
injured by another inmate was not a "personal gripe" unprotected by
the First Amendment. The plaintiff prisoner, therefore, could proceed with his
lawsuit alleging that he was disciplined for pursuing his complaint concerning
the incident. Ogurek v. Gabor, #15-1151 2016 U.S. App. Lexis 11712 (7th Cir.).
A prisoner claimed that his First Amendment
rights were violated when he was allegedly placed in solitary confinement in
retaliation for publishing a by-lined online article. The sued federal prison
employee, however, was entitled to qualified immunity from liability, as it was
not clearly established that a prisoner had a protected constitutional right to
publish an article under a by-line. The appeals court, therefore, did not reach
the issue of whether the action violated the prisoner's rights. McGowan v. United
States, #15-1786, 2016 U.S. App. Lexis 10263 (2nd Cir.).
A federal appeals court reinstated a lawsuit
arising after a pagan worship area at a prison was destroyed during a
construction project. The prisoners filed grievances about the demolition. They
were subsequently charged with abusing the grievance procedure and sentenced to
15 days of disciplinary segregation. One of them was transferred to another
facility. The trial court granted summary judgment in favor of prison
administrators on an unlawful retaliation claim, after the defendants contended
that the plaintiffs abused the grievance process to harass the staff. The
appeals court disagreed, finding evidence that the plaintiffs "engaged in
the prison’s informal resolution procedure before filing their grievances,” and
that their grievances "were not frivolous, vexatious or duplicative."
Debarr v. Clark, #14-15497, 2016 U.S. App. Lexis 6935 (Unpub. 9th Cir.).
A former gang member was attacked by other
inmates and left permanently disabled and confined to a wheelchair. He was told
that he had been targeted because his assailants thought he was a pedophile. He
learned that his prison records had reference to the Adam Walsh Act, 42 U.S.C.
16901–91, creating a national sex offender registry, although his convictions
were actually for other crimes. He filed a grievance asking that his prison
records be corrected, and that he be placed in segregation because he heard
that inmates at a new facility he had been transferred to were planning to
attack him. He was assigned to a wheelchair accessible cell, but was attacked
by his cellmate within a month over his "Walsh Act stuff." When he
filed a grievance and objected to a new proposed cellmate, guards allegedly
took him to a non-accessible cell and refused to help him to the toilet.
Subsequently, he was found lying on the floor near the toilet, suffering a
sprained spine, a shoulder contusion, and head lacerations. A federal appeals
court vacated the dismissal of his First Amendment retaliation claim and an
Eighth Amendment claim that a guard was implementing a policy of moving every
prisoner who objects to a new cellmate, for the purpose of deterring prisoners
from attempting to reserve one-person cells. Herron v. Meyer, #15-1659, 2016
U.S. App. Lexis 7472 (7th Cir.).
The ACLU sued the director of the Missouri
Department of Corrections, claiming that a state statute prohibiting the
disclosure of the identity of persons who participated in executions was
unconstitutional. It arguably chilled the free speech of the ACLU as to the
dissemination of information contained in documents they obtained under a state
statute. The director was immune from liability, however, as he did not have
the power to enforce the statute barring the disclosure, only private litigants
who filed lawsuits for damages for wrongful disclosure could take action to
enforce it. Balogh v. Lombardi, 14-3603, 2016 U.S. App. Lexis 4533 (5th Cir.).
An Illinois man confined as a sexually violent
person sued the facility's program director, its grievance examiner, and a
security therapist aide, claiming that they infringed on his First and
Fourteenth Amendment rights by disregarding his grievances regarding dental
care and by insulting him. A federal appeals court overturned dismissal of the
complaint, finding that the grievances were protected speech and that a warning
that his life would be better if he stopped filing his grievance may have gone
beyond mere verbal harassment. The court also commented that the plaintiff, as
a civil detainee, was “entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to
punish.” The defendants, as staff members of an institution that houses and
treats persons suffering from mental disorders should understand that they are
dealing with psychologically impaired persons, and should have known better
than to shout at a possibly vulnerable person, call him “ignorant,” “stupid,”
and a “moron,” ignore grievances that might be meritorious and serious, and threaten
him with retaliation for complaining. Hughes v. Scott, #15-3482, 2016 U.S. App.
Lexis 5349 (7th Cir.).
A prisoner suffering from Post Traumatic Stress
Disorder (PTSD) claimed that prison wardens and supervisory physicians acted
with deliberate indifference to his serious medical needs. The wardens were
entitled to qualified immunity because there was no specific evidence that they
were directly involved in or responsible for the allegedly inadequate
treatment. Further, the evidence showed that the physicians were aware of the
prisoner's medical needs and took steps to meet them. The prisoner also failed
to show that he engaged in activities protected by the First Amendment or that
his transfer to another facility or placement in segregation was retaliatory or
violated due process. In fact, the transfer was to facilitate him receiving
necessary psychiatric treatment. Saylor v. Randy Kohl, M.D., #14-3889, 2016
U.S. App. Lexis 1459 (8th Cir.).
After finishing his prison sentence for a sex offense,
the plaintiff was civilly committed as a Sexually Violent Person. While
committed, he argued that he was fired from his dietary services job in
retaliation for his having previously filed lawsuits against staff members,
based on "trumped-up" disciplinary charges. A federal appeals court
reversed the screening out of the lawsuit as containing only conclusory
allegations. The trial judge had interviewed the plaintiff via telephone. The
appeals court noted that it had previously ruled against ex parte telephone
interrogation as a permissible method of screening complaints to decide whether
they stated a claim. While a trial judge can interview a pro se detainee to
determine what the case is (but not its merits) a transcript or recording must
be made to allow for review on appeal. Henderson v. Wilcoxen, #15-2029, 2015
U.S. App. Lexis 17443 (7th Cir.).
A man convicted of rape and diagnosed with
paraphilia (sexual attraction to non-consenting women) was civilly committed to
a treatment center as a Sexually Violent Person. He sued the facility's
officials and clinical staff for violation of his First Amendment
constitutional rights in restricting their access to movies and video games.
The facility barred them from watching all R-rated movies or play M(mature)-rated
video games displaying intense violence, blood and gore, sexual content, or
"strong language." Subsequently, the policy was altered to only
prohibit 353 specified movies and 232 specific games. When the facility later
discovered that at least two residents had used a video game console to access
the Internet for the purpose of viewing prohibited content, all such consoles
capable of accessing the Internet were also prohibited. A federal appeals court
ruled that the record was insufficient to show that the ban on movies and video
games was reasonably related to the state's interest in rehabilitation and
security. The court also found that a bare assertion that the ban on all sexual
material promoted treatment was insufficient to support granting summary
judgment for the defendants on the First Amendment claim. The court did agree,
however, that the ban on video game consoles capable of accessing the Internet
was rationally related to the facility's interest in security. Brown v.
Phillips, #14-3325, 2015 U.S. App. Lexis 16346 (7th Cir.).
Voicing inmate grievances as a member of an
Inmate Liaison Committee qualified as constitutionally protected First
Amendment activity, so that the trial court improperly dismissed the
plaintiff's claim that he faced unlawful retaliation as a result of such
activity. Dolan v. Connolly, #14-2561, 794 F.3d 290 (2nd Cir. 2015).
An inmate injured his hand during a prison
basketball game. While a nurse quickly wrapped his hand, she was not able to
either give him medicine or do stitches. A day later, the inmate saw a doctor
who also did not stitch his wound, but prescribed antibiotics and recommended a
specialist. Approval for seeing a specialist took a number of days, during
which the wound remained open and bleeding. The prisoner filed a grievance,
which was rejected, arguing that the delay was retaliatory for him having filed
a previous grievance over the withholding of prescription medication. He was
then taken to a clinic where he saw a physician's assistant, who stated that he
could not suture the wound because of its age. The inmate claimed that prison
officials did not follow care instructions after that and did not return him to
the clinic for follow-up care. Seven months later, he still had continuing
pain, and then had surgery. He claims that due to an overall ten-month delay in
getting required treatment, he suffered irreparable damage. The trial court
dismissed his lawsuit after screening it, and a federal appeals court reversed,
finding that the alleged facts stated both valid Eighth Amendment and First
Amendment retaliation claims. Perez v. Fenoglio, #12-3084, 2015 U.S. App. Lexis
11672 (7th Cir.).
A federal trial court has struck down as
unconstitutional, in violation of the First Amendment, a Pennsylvania law, the
Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304, which authorized the
state's Attorney General, local prosecutors, and the victims (including
families) of personal injury crimes to bring civil actions seeking to enjoin
conduct by an offender "which perpetuates the continuing effect of the
crime on the victim," as well as recover attorneys' fees. The law was
enacted in response to a college's selection of plaintiff Mumia Abu-Jamal,
convicted of the murder of a police officer, as its commencement speaker. The
speech was delivered via a recording. "The court concludes that the
challenged statute betrays several constitutional requirements; the enactment
is unlawfully purposed, vaguely executed, and patently overbroad in scope.
However well-intentioned its legislative efforts, the General Assembly fell
woefully short of the mark. The result is a law that is manifestly
unconstitutional, both facially and as applied to plaintiffs." The
enforcement of the statute was enjoined. Abu Jamal v. Kane, #1:14-cv-2148, 2015
U.S. Dist. Lexis 55250, 43 Media L. Rep. (BNA) 1679 (M.D. Pa.).
Prisoners on death row in Missouri challenged the
constitutionality of the state's lethal-injection protocol, which was altered
to use a single drug rather than a combination of three (an anesthetic, a
paralyzing agent, and a drug to stop the heart) when the first drug became
unavailable. While the challenge was pending, the protocol was revised from the
drug propofol to compounded pentobarbital, and the plaintiffs amended their
complaint to allege that the new drug constituted cruel and unusual punishment
and that the defendants were deliberately indifferent to their medical need for
their executions not to inflict gratuitous pain. The plaintiffs failed to meet
their burden of showing that the use of the drug rose to the level of
"sure or very likely" to cause serious harm or severe pain. They also
failed to show that they had a First Amendment right to disclosure of
information about the identities of the pharmacy that compounds the drug and
its suppliers. Zink v. Lombardi, #14-2220, 2015 U.S. App. Lexis 3550 (8th
Cir.).
A federal trial court has declined to dismiss a
lawsuit filed by the ACLU, other advocacy groups, journalists, and a prisoner
incarcerated for the murder of a police officer as well as four other
prisoners, challenging the constitutionality of a Pennsylvania law, the
Revictimization Act, 18 Pa. Cons. Stat Sec. 11.1304, which authorizes the
state's Attorney General, local prosecutors, and the victims (including
families) of personal injury crimes to bring civil actions seeking to enjoin
conduct by an offender "which perpetuates the continuing effect of the
crime on the victim," as well as recover attorneys' fees. The law was
enacted in response to a college's selection of plaintiff Mumia Abu-Jamal,
convicted of the murder of a police officer, as its commencement speaker. The
speech was delivered via a recording. The lawsuit asserts that the statute
violates the First Amendment rights of offenders, as well as of others to hear
their speech. The court ruled that the plaintiffs have standing to sue the
state Attorney General, as she had not said that she would not seek to enforce
the law, making it credible that it might be applied against some of the plaintiffs.
A District Attorney who stated that he would not seek to enforce the statute
pending a court determination of its constitutionality, however, was dismissed
as a defendant. Abu Jamal v. Kane, #1:14-cv-2148, 2015 U.S. Dist. Lexis 27633
(M.D. Pa.).
A prisoner claimed that he had been granted
parole but that it was rescinded because he was facing pending disciplinary
charges and had been placed in a restrictive housing unit as a result. He
claimed that these actions were retaliatory for having filed a grievance
against an officer. These actions did not violate his due process rights
because the misconduct determinations, his time placed in the restrictive
housing unit, and his parole recission, did not, either alone or in
combination, create an atypical and significant hardship in relation to the
ordinary incidents of prison life. But the prisoner did adequately allege a
retaliation claim against a particular officer by claiming that when he refused
to confess to a particular charge and instead filed a grievance against this
officer, he was placed in administrative custody in retaliation. Fantone v.
Latini, #13-3611, 2015 U.S. App. Lexis 2470 (3rd Cir.).
The wife of an inmate claimed that her visitation
privileges with him were terminated in retaliation for her exercising her First
Amendment rights by engaging in public protests asserting that the Department
of Corrections was violating the rights of her husband and other prisoners then
on a hunger strike. While a reasonable jury could find that the motivation for
the termination, in part, might have been to retaliate for her role in the
protests, it was also motivated by legitimate concerns about the security and
safety of inmates and staff members. The defendant officials were entitled to
qualified immunity for both the period of time during the hunger strike and
after it ended, as the decision to terminate visitation rights was made while
the hunger strike was ongoing and was lawful when it was made. Jackson v.
Humphrey, #14-10183, 2015 U.S. App. Lexis 469 (11th Cir.).
A federal prisoner filed a lawsuit claiming that
he had been placed in administrative detention for 60 days in unlawful
retaliation in violation of the First Amendment for filing a claim under the
Federal Tort Claims Act (FTCA), as well as a claim of failure to protect in
violation of the Eighth Amendment based on an assault on him by another
prisoner. The trial court granted summary judgment for the defendants, based on
the plaintiff's alleged failure to exhaust available administrative remedies
before suing, as required by the Prison Litigation Reform Act, 42 U.S.C.
1997e(a), as well as a ruling that the plaintiff's Eighth Amendment claim was
barred by his decision to file a FTCA claim regarding the assault. A federal
appeals court vacated the trial court's ruling, holding that the failure to
exhaust available administrative remedies should be excused because of specific
allegations that one of the defendants intimidated him from pursuing a
grievance by a threat to transfer him to another facility where she said he
would be attacked and placing him in a special housing unit after he filed his
FTCA claim, and that the FTCA claim did not bar the Eighth Amendment claim
because the FTCA claim was dismissed by the trial court for lack of subject
matter jurisdiction and there was no judgment on the claim. Himmelreich v. Fed.
Bureau of Prisons, #13-4212, 766 F.3d 576 (6th Cir. 2014).
A man civilly committed as a sexually violent
person and residing in a Treatment and Detention Center claimed that his First
Amendment rights to free speech were unreasonably restricted when he was denied
access to certain video games and movies, specifically unrated media. Rejecting
this claim, an intermediate state appeals court found that the defendant Center
had legitimate security and rehabilitative interests in promoting a therapeutic
environment and that this interest was promoted by barring the plaintiff's
access to games or movies that could encourage antisocial behavior or sexual
deviance. Schloss v. Jumper, 2014 IL App (4th) 121086, 2014 Ill. App. Lexis
379.
A prosecutor filed felony charges against a
correctional officer who took his cell phone inside a facility in violation of
departmental policies and Illinois law, making 30 calls from work. Another
officer spread the news of this to fellow employees. A casework supervisor
called the prosecutor, urging him to drop the charges and let the matter be
handled in the employee disciplinary process. Internal affairs learned of this
and investigated the supervisor, who was reprimanded and suspended for five
days. He sued, claiming he was subjected to unlawful retaliation for protected
speech. A federal appeals court upheld a ruling that the defendants were
entitled to qualified immunity from liability as no clearly established rights
were violated. Further, the plaintiff had not proven his case as a matter of
law. His speech was not constitutionally protected since the interests in
maintaining workplace order and security outweighed the plaintiff's interests
in expressing his opinion on a work-related prosecution. Volkman v. Ryker,
#12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).
Two Pennsylvania newspapers sued seeking expanded
access to prisoner executions. They asserted that various restrictions on
access imposed by correctional officials violated the First Amendment right to
report on matters of public interest. A settlement was reached allowing
witnesses, such as reporters, to see and hear inside the execution chamber from
the moment the prisoner enters until the time he or she is declared dead. The
settlement serves the right of officials to turn off the sound system if the
inmate attempts to make malicious or threatening remarks aimed at the
witnesses. The Philadelphia Inquirer v. Wetzel, #12-cv-01817, U.S. Dist Ct.
(M.D. Pa. Oct. 18, 2013).
A man civilly committed as a sexually violent
person claimed that the facility's director violated his First Amendment
freedom by enforcing a policy limiting all residents from copying a newsletter he
had produced that was critical of conditions, policies, and personnel at the
facility and which he claimed had previously had a disruptive effect. After the
litigation had begun, but before the trial court granted summary judgment for
th defendant director, a new and stricter policy was adopted. The federal
appeals court vacated the ruling, holding that the trial court should consider
the constitutionality of the revised policy along with the previous one, to
avoid "piecemeal adjudication." Pesci v. Budz, #12-11144, 2013 U.S.
App. Lexis 19446 (11th Cir.).
Summary judgment was properly granted for a
defendant prison official on a prisoner's unlawful retaliation claim. The
prisoner's action in serving the prison official with a lawsuit summons and
complaint on behalf of another prisoner was not constitutionally protected
activity either on the basis of the right of access to the courts or the First
Amendment. Blaisdell v. Frappiea, #10-16845, 2013 U.S. App. Lexis18782 (9th
Cir.).
A prisoner claimed that he had been disciplined
in retaliation for writing a letter to fellow inmates asking them to work
together in support of his class action lawsuit against prison administrators.
He claimed that this violated his First and Fourteenth Amendment rights. Summary
judgment was entered for the defendants on the First Amendment claims but
summary judgment was entered for the prisoner on a due process claim. After a
jury trial on damages at which the prisoner was awarded nominal and punitive
damages, the parties reached a settlement providing that the prisoner would
receive $11,000, plus attorneys' fees and costs. The prisoner then attempted to
appeal the summary judgment against him on the First Amendment claim. The
appeals court ruled that this issue was barred by the settlement agreement.
Jones v. McDaniel, #10-16658, 2013 U.S. App. Lexis 11676 (9th Cir.).
An intermediate California appeals court ruled
that a prisoner had a First Amendment right to read a sexy violent werewolf
thriller novel about a woman named Iris who kills werewolves every time there
is a full moon, but then falls in love with one and is designated by a group of
witches as the "chosen one," destined to save humanity. Prison
officials had confiscated the novel, "The Silver Crown" by Mathilde
Madden, (not to be confused with the same author's "The Silver
Collar") as contraband. The appeals court judges reviewed the full 265
pages of the book and gave a two-page detailed plot summary. Rejecting the
determination that the book was obscene and could be barred, the court relied
on an expert witness university professor that the book had literary value. The
judges also rejected the argument that the violence in the book was likely to
incite prison violence, finding that it was no more violent than nightly
television programming prisoners were allowed to watch or another book already
in the prison library. In re Andres Martinez, #A134400, 2013 Cal. App. Lexis
430.
A federal district court judge ruled
that a county jail that adopted a rule that restricted incoming and outgoing
personal inmate mail to only postcards was unconstitutional under the First
Amendment. The court ruled that it violated the rights of the inmates
themselves, individuals who write to them, and the publishers of the Prison
Legal News publication. The interest in keeping contraband out of the facility
and reducing costs in screening mail did not outweigh the free speech rights
involved. Prison Legal News v. Columbia County, #3:12-cv-00071, 2013
U.S. Dist. Lexis 58669 (D. Ore.).
A federal trial court has struck down a Nebraska state
law barring registered sex offenders from using the Internet for most purposes,
including social media. The court said that by severely limiting "even
benign" uses of the Internet, the law raised First Amendment, due process,
Fourth Amendment and ex post facto issues. The law, the judge found, did not
leave open ample alternative channels for communication of information. A
portion of the statute that applied to those registered as sex offenders but
who were not on probation, parole, or court monitored supervision violated the
Fourth Amendment. The court said the law wrongly bars offenders "from
using an enormous portion of the Internet to engage inexpressive
activity." and "potentially restricts the targeted offenders from
communicating with hundreds of millions and perhaps billions of adults and
their companies despite the fact that the communication has nothing whatsoever
to do with minors." Further, the law "is not narrowly tailored to
target those offenders who pose a factually based risk to children through the
use or threatened use of the banned sites or services. The risk posited by the
statute is far too speculative when judged against the First Amendment."
Doe v. State of Nebraska, #8:09CV456, 2012 U.S. Dist. Lexis 148770 (D. Neb).
A prisoner checked two books out of a prison
library and also was permitted to purchase one book. Each of these books had
the text of the "Ten-Point Program" of the Black Panther Party from
the 1960s. After the prisoner copied the points of the program out on a sheet
of paper, which was spotted by an officer, he was given 90 days in segregation
for possession of gang literature, based especially on Point 9of the program
calling for "freedom for all Black men" in prisons and jails. A
federal appeals court rejected his First Amendment claim. While the prisoner
argued that the "Ten-Point Program" could not be the basis for a
security concern because it was already in books allowed in the prison library
and allowed for prisoners to purchase, the court noted that prison librarians
"cannot be required to read every word of every book to which inmates
might have access to make sure the book contains no incendiary material."
Even if a librarian had decided that a book containing the material did not, as
a whole, constitute gang literature, that would not have barred a disciplinary
proceeding against a prisoner who copied incendiary passages from it. The
belief by prison officials that the prisoner could use the Ten-Point Program to
enlist a prison gang was not so implausible that it could be dismissed as
groundless. The program could be viewed by prison officials as an incitement to
violence by black prisoners. The court did, however, order further proceedings
on the prisoner's claim that his due process rights were violated by the fact
that prison officials failed to notify prisoners that they were not to copy
certain passages from books they checked out from the library or were allowed
to buy. Toston v. Thurmer, #11-3914, 2012 U.S. App. Lexis 15966 (7th Cir.).
Prisoners convicted of sex crimes were kept
incarcerated long after their sentences ended, remaining in state custody as
sexually violent civil detainees. They claimed that their civil rights were
violated because they were denied the ability to have face to face social
opportunities with civil detainees in other pods of their facility and because
they were not allowed to contact other civilly committed detainees using the
facility's own internal mail system, instead being required to use the U.S.
mail for that purpose. The limits on direct socialization were justified as a
security measure. Due process did not require input from health professionals
before restrictions were put on the in-person association opportunities of the
detainees. There was no violation of First Amendment rights in requiring the
plaintiffs to use the U.S. mail rather than the facility's internal mail system
to communicate with other civil detainees. Lane v. Williams, #11-3373, 2012 U.S.
App. Lexis 17922 (7th Cir.).
A prisoner convicted of terrorism-related crimes
involving the 1998 bombing of the U.S. embassy in Kenya was subjected to
special administrative measures forbidding him from receiving two Arabic
language newspapers he had previously received and prohibiting him from
corresponding with his nieces and nephews. A federal appeals court rejected a
claim that these measures violated his First Amendment rights. The government's
interestin restricting his rights was reasonably related to legitimate
penological interests, and the prisoner had the burden of showing that there
was no legitimate, rational basis for the increased communication restrictions.
Given the belief that the prisoner had a "proclivity for violence" based
on his conviction for acts of terrorism, the warden expressed the concern that
“communications or contacts with persons could result in death or serious
bodily injury to persons.” This was a rational basis for the restrictions. The
restriction on the Arabic newspaper was similarly upheld as justified by the
need to prevent him from receiving information and instructions in a manner
difficult to detect. Al-Owhali v. Holder, #11-1274, 2012 U.S. App. Lexis 16401
(10th Cir.).
Correctional employees' actions in refusing to
let prisoners receive five books that a non-profit corporation wished to
distribute to them did not violate the First Amendment or due process. The
books were properly banned as unacceptable based on discussions of racial
conflicts in prisons and graphic descriptions of prison rape. The plaintiff
failed to show that the policy under which these books were barred had no
reasonable relationship to legitimate governmental objectives. Prison Legal
News v. Livingston, #11-40128, 2012 U.S. App. Lexis 11108 (5th Cir.). Editor's
note: The books rejected were Prison Masculinities, Don Sabo, et al., eds.,
(2001); The Perpetual Prison Machine: How America Profits from Crime, Joel Dyer
(1999); Lockdown America: Police and Prisons in the Age of Crisis, Christian
Parenti (2000); Soledad Brother: The Prison Letters of George Jackson, George
Jackson (1970); and Women Behind Bars: The Crisis of Women in the U.S. Prison
System, Silja J.A. Talvi (2007).
A prisoner not involved in a fight between two
other inmates claimed he struck in the arm by a shotgun pellet fired by a guard
was a nearby catwalk. He allegedly had to wait four days for medical attention,
suffering significant pain in the interim. Right after the incident, a medical
aide allegedly assured him that she would go and get medication and medical
supplies for him, but did not return with it. He asserted a valid claim for
excessive use of force, as there was sufficient evidence to support an
inference that an officer acted maliciously in using deadly force against
prisoners not involved in the fight. The delay in treatment supported a claim
for deliberate indifference to a serious medical need. Claims against one
officer concerning medical care were properly dismissed, as he summoned medical
assistance as soon as he became aware of the prisoner's injury. The prisoner
also stated a valid First Amendment claim, based on his assertion that he was
transferred to another facility in retaliation for threatening to bring a
grievance over the incident. Gomez v. Randle, #11-2962, 2012 U.S. App. Lexis
9656 (7th Cir.).
A prisoner sued correctional officers, claiming
that they retaliated against him in violation of his First Amendment rights,
transferring him to a higher security level facility because he participated in
a class action lawsuit in state court on inmate property issues and aided other
prisoners in filing grievances. The inmate's actions constituted protected
activities, and were followed by an adverse event, his transfer. A federal
appeals court upheld a trial court judgment in favor of two defendants found
not to have engaged in unlawful retaliation but ordered further proceedings as
to three other defendants to determine if they did. There was evidence that
these three had been involved in the decision to make the transfer and may have
been motivated by retaliatory motives. They had not adequately shown that they
would have ordered the transfer in any event because of the inmate's
"disruptive" behavior, as the record was devoid of any evidence of such
behavior other than the protected activities and a memo written by a defendant
whose bias was evident from her "acts of instructing other officers to
fabricate misconduct tickets against him." The other two remaining
defendants did not claim to have read that memo. King v. Zamiara,
#09–2469, 2012 U.S. App. Lexis 10240, 2012 Fed. App. 146P (6th Cir.).
A man who completed his sentence for multiple
sexual crimes against children was then civilly committed. The staff at the
psychiatric facility to which he was sent seized CDs and DVDs numbering in the
hundreds from him, and he claimed that they took too long before returning them
after screening them for possible sexually explicit material, in violation of
his First and Fourth Amendment rights. Staff members were entitled to qualified
immunity from liability, since it was objectively reasonable to believe that
their actions were legal. The interest of the state in security, order and
treatment of the plaintiff outweighed any property interest the plaintiff had
in quickly getting back his things or receiving a detailed explanation at the
time of the seizure. The court also rejected the plaintiff's claim that some of
his incoming non-legal mail was withheld. He had not shown that it was withheld
without justification, and there was a strong interest in preventing him from
obtaining inappropriate images which outweighed his weak interest in
immediately receiving commercial mail seized for screening. Ahlers v.
Rabinowitz, #10-1193, 2012 U.S. App. Lexis 7035 (2nd Cir.).
A prison did not violate the First Amendment,
Eighth Amendment, or Fourteenth Amendment rights of a prisoner suffering from
chronic medical conditions by refusing to permit him to possess copies of the
books "Physician's Desk Reference," and "the Complete Guide to
Drugs." While the prisoner argued that he should be allowed to have these
books to learn about possible side effects to medications he was prescribed for
his medical problems, it was reasonable to limit prisoner access to books about
drugs. Munson v. Gaetz, # 11–1532, 2012 U.S. App. Lexis 4960 (7th Cir.).
Any humiliation which an inmate suffered when a
correctional officer laughed and brushed his thigh against the inmate's while
he was sitting on the toilet in his cell rather than leaving, was insufficient
for an Eighth Amendment violation. The prisoner's claims, however, that
officers threatened to hit him, to not bring him breakfast, and filed a false
disciplinary charge against him, stated valid First Amendment retaliation claims
if done because of his filing of various grievances. A retaliation claim was
also adequately stated against a warden who allegedly was motivated by the
prisoner's grievances to lie about him so that his parole would be denied.
Watison v. Carter, #10–16778, 2012 U.S. App. Lexis 2818 (9th Cir.).
A prisoner sued over the allegedly excessive fees
charged by a company providing telephone services to prisoners at a facility.
The phone provider paid the prison 45% of the gross revenues provided. The
federal appeals court ruled that the prison had no First Amendment obligation
to provide any telephone services at all, and also had no obligation to do so
at any "particular cost to users." Holloway v. Magness, #11–1455,
2012 U.S. App. Lexis 1961, (8th Cir.).
A Florida administrative regulation that prohibited
prisoners from soliciting for pen pals did not violate the First Amendment and
was reasonable. It was adopted for the legitimate purpose of preventing
prisoners from making use of pen pal solicitation services to commit fraud. The
rule did not prohibit prisoners from corresponding with a pen pal, but merely
from advertising to solicit obtaining one. Florida prison officials permit one
pen pal service to operate in its facilities because it does one-to-one
matching between prisoners and non-prisoner pen pals, rather than circulating
lists of prisoners and non-prisoners available as pen pals. This was believed
to decrease the likelihood of scams "because an inmate does not receive a
list with numerous individuals’ names, addresses, and contact
information." Perry v. Department of Corrections, #11-10694, 2011 U.S.
App. Lexis 25561 (11th Cir.).
A prisoner was not allowed to go to his plumbing
crew work assignment, and was told that he fit the profile of an escape risk.
He was further told, however, that he had not lost his job, but would be
allowed to return to it after certain additional security precautions were in
place. After he filed a grievance challenging his classification as an escape
risk, he was terminated from his job. Given the sequence of events, he stated a
viable claim that he was fired in retaliation for filing the grievance in
violation of his First Amendment rights. Milligan v.
Archuleta, #11-1218, 659 F.3d 1294 (10th Cir. 2011).
Wisconsin prison officials did not violate the First
Amendment in preventing inmates from receiving copies of "The New
Abolitionist," (subsequently renamed Wisconsin Prison Watch), a prison
reform newsletter mailed to them, since the record showed that they could
properly conclude that it contained "misleading information, encourages
distrust of prison staff, and could potentially undermine the prison's
rehabilitative initiatives." The plaintiffs failed to show that
classifying the publication as harmful was unreasonable. Van Den Bosch v.
Raemisch, #09-4112, 2011 U.S. App. Lexis 19031 (7th Cir.).
A prison education director had an inmate fired
from his job as a clerk in the prison library. The prisoner subsequently filed
a grievance against the education director, who filed a misconduct report
against the prisoner a day later concerning the incident that led to the
firing. Based on the timing of the misconduct report, as well as its
"threadbare" nature, the prisoner stated a triable claim of unlawful
retaliation in violation of his First Amendment rights against the education
director. Greene v. Doruff, #10-3497, 2011 U.S. App. Lexis 20597
(7th Cir.)
A prison's prohibition on inmates advertising for
pen pals or receiving information from publications and websites that publish
such ads did not violate their rights under the First Amendment. The regulation
was reasonably related to a legitimate objective of preventing inmates from
committing fraud through the mail. Woods v. Commissioner of the Indiana Dept.
of Corrections, #10-3339, 2011 U.S. App. Lexis 14732 (7th Cir.).
Prison personnel might be liable to a prisoner
for violating his First Amendment rights by prohibiting him from receiving mail
containing a comic book deemed too violent in its depicted story. While
material that might incite violence may be screened out, the prisoner asserted
that the comic book in question did no such thing. He noted that the comic book
depicted stories that Japanese children watch on television, and argued that the
prison allows other publications depicting violence, including wrestling,
boxing, karate, and gun magazines. Kaden v. Slykhuis, #10-2751, 2011 U.S. App.
Lexis 17747 (8th Cir.).
A prisoner was entitled to proceed with his claim
that he was transferred to a restricted housing unit by a captain in
retaliation for his First Amendment-protected activity of filing a grievance
concerning a disciplinary charge the captain filed against him. There was
evidence that the captain justified the transfer by claiming to have
information that the prisoner was somehow responsible for a fight between other
prisoners, but his failure to similarly transfer two prisoners known to have
been involved in the fight supported the claim of a retaliatory motive.
Washington-El v. DiGuglielmo, #10-2462, 2011 U.S. App. Lexis 5857 (Unpub. 3rd
Cir.).
A "jailhouse lawyer" who claimed that
he was transferred to an out-of-state prison in retaliation for his activities
on behalf of other prisoners and for pursuing his own grievances failed to show
that there was a causal relationship between these admittedly protected
activities and his transfer. Instead, there was evidence that the transfer
elsewhere was the result of the prisoner having accumulated a number of
"separations," which the court characterized as "a term used to
indicate the existence of a placement conflict counseling against assignment of
one inmate to the same institution as another inmate or staff member."
Hannon v. Beard, #10-1792, 2011 U.S. App. Lexis 11549 (1st Cir.).
An African-American prisoner in Michigan claimed
that, after his transfer to a new facility, he encountered a correctional
officer who remembered him from the first prison as a "litigant," and
who allegedly subjected him to body searches, threats implying the possible use
of physical violence, and racial epithets. A federal appeals court found that
the prisoner alleged facts sufficient to create a genuine issue of fact as to
whether he had been subjected to unlawful retaliation for his role in the litigation
at his former facility, even though the officer who allegedly threatened him
had not been a defendant in that lawsuit. Reynolds-Bey v. Spicer, #09-1472,
2011 U.S. App. Lexis 7660 (Unpub. 6th Cir.).
While there was evidence that the plaintiff prisoner
had asthma, the record did not support his argument that his level of exposure
to environmental tobacco smoke (ETS) in Michigan state prisons amounted to a
serious threat to his health in violation of the Eighth Amendment, as opposed
to "mere discomfort." His asthma was "relatively minor,"
and could be managed through the use of an inhaler and other medication. There
also was insufficient evidence to support his claim that he was transferred to
another facility, with allegedly worse ETS, in retaliation for complaining
about ETS. Jones v. Caruso, #10-1515, 2011 U.S. App. Lexis 8729; (Unpub. 6th
Cir.).
Upholding a jury's rejection of a prisoner's
lawsuit banning his receipt of certain gift publications, a federal appeals
court ruled that there was evidence from which the jury could find that that
the private prison's policy was necessary to promote security and
administrative interests. The jury was properly instructed that prisoners have
a First Amendment right to receive mail and gift publications, but that a
policy barring receipt of some such publications could be legal if reasonably
related to legitimate penological or correctional goals. Blaisdell v. Corr.
Corp. of Am., #09-17795, 2011 U.S. App. Lexis 7600 (Unpub. 9th Cir.).
Trial court did not act improperly in dismissing
prisoner's lawsuit claiming that prison officials failed to process his
grievances and were deliberately indifferent to his serious medical needs, as
well as failing to protect him against assault by other prisoners. The prisoner
failed to exhaust his administrative remedies by filing a timely grievance
regarding his medical care, and failed to present any evidence that guards were
aware of any specific threats to him by other prisoners. His First Amendment
claim concerning the defendants' forcible termination of his hunger strike was
properly rejected since he had no First Amendment right to refuse medical
treatment intended to save his life. Owens v. Hinsley, #09-3618, 2011 U.S. App.
Lexis 5360 (7th Cir.).
A Wisconsin prisoner was denied receipt of a
three-volume set of law books that he ordered through the mail and which cost
$110. A prison rule restricted the receipt of any one item of property to a
value of $75. The prisoner argued that the set constituted three items, each of
which cost less than $75. A federal appeals court rejected the claim that
denying him receipt of the set violated his First Amendment rights. Some
defendants were not personally involved in the decision to withhold the books,
while others were protected by qualified immunity, as the inmate had no clearly
established right to receive the materials in violation of a rule about the
monetary value of property received. Hohol v. Jess, #10-1280, 2011 U.S. App.
Lexis 6138 (Unpub. 7th Cir.).
A prisoner claimed that he was denied medical
treatment for his diabetes and Hepatitis C in retaliation for engaging in
protected First Amendment activity of speaking out about prison health needs
and seeking access to the courts. His complaint was dismissed under the
"three strikes" provision of the Prison Litigation Reform Act.
Reversing, a federal appeals court held that his claim fell within an
"imminent danger" exception to the three strikes rule, since he
claimed that he was still receiving improper care for retaliatory reasons.
Vandiver v. Vasbinder, #08-2602, 2011 U.S. App. Lexis 6325 (Unpub. 6th Cir.).
An Arizona prisoner claimed that the confiscation
of certain books violated his First Amendment and due process property rights.
Rejecting these claims, a federal appeals court found that there was no viable
due process claim as the loss of the property, while intentional, was
"random and unauthorized." Additionally, he was offered a settlement
amount for their loss, and his dissatisfaction with the amount did not render
the post-deprivation remedy inadequate, since he could have filed suit in state
court. The First Amendment claim was properly rejected as the confiscation of
the books, besides being random and unauthorized, was not based on their content.
The state Department of Corrections was entitled to Eleventh Amendment immunity
from liability. Skinner v. Ariz. Dept. of Corrections, #09-16848, 2010 U.S.
App. Lexis 21152 (Unpub. 9th Cir.).
A prisoner claimed that officials retaliated
against him for filing grievances by placing him in administrative lockdown.
The appeals court noted that an inmate is not required to show the favorable
outcome of a disciplinary case if he is alleging a retaliation claim. As a
result, the trial court abused its discretion in dismissing the claim as barred
because the disciplinary conviction had not been reversed or otherwise set
aside. The trial court also failed to address claims that the conditions in
lockdown violated the Eighth Amendment, which also were not barred on that
basis. Muse v. Sheriff's Dept., Ouachita Parish, #10-30521, 2010 U.S. App.
Lexis 25953 (Unpub. 5th Cir.).
A prisoner housed in a cell with a window claimed
that an officer refused, on five separate occasions, to turn on the lights in
his cell at 7 a.m. as required by department policy, depriving him of
artificial lighting in his cell during daylight hours for a total of eight
hours over a seven-month period. After he filed grievances against the officer
for this, the officer allegedly retaliated by calling the prisoner a
"snitch" in front of other inmates, and filed a false disciplinary
report against him. A federal appeals court found that the trial court
erroneously dismissed the retaliation claim because the prisoner was not
actually disciplined, as the retaliatory filing of false disciplinary charges
is enough to be the basis for a retaliation claim. Falsely labeling the
plaintiff a "snitch" in front of other prisoners could subject him to
the risk of substantial harm at the hands of other prisoners, and supported
both First Amendment and Eighth Amendment claims. Claims concerning the failure
to turn on cell lights, which the prisoner claimed impeded his ability to do
legal work, in violation of his First Amendment rights, were rejected. Williams
v, Horner, #09-2927, 2010 U.S. App. Lexis 24463 (Unpub. 8th Cir.). Editor's
note: A judge dissenting in part argued that the majority, in allowing the
pursuit of the retaliation claim merely on the basis of a retaliatory filing of
false disciplinary charges failed to impose a necessary condition that the
retaliatory action be one that would chill a person of ordinary firmness from
exercising his First Amendment rights, and noted that in this case, the warden
dismissed the disciplinary charge against the prisoner.
A prisoner's claim that he was compelled to work
outdoors uprooting tree stumps in freezing cold weather without safety
instructions, protective gear, or gloves was sufficient to state a claim for
violation of the Eighth Amendment, requiring the reversal of the trial court's
dismissal of the lawsuit. The court also reinstated the prisoner's claim that
he was penalized for questioning the work assignment and making preparations to
sue, in violation of his First Amendment rights. Smith v. Peters, #10-1013,
2011 U.S. App. Lexis 955 (7th Cir.).
A detainee at a county jail claimed that a shift
commander violated his First and Fourteenth Amendment rights by
"threatening him." He had asked why the jail was on lockdown, and the
shift commander allegedly said, "Top Secret, if I told you, I'd have to
kill you." The prisoner claimed that this statement was not in jest, and
that he feared for his life. When he filed a grievance concerning the incident,
he was allegedly confronted by the shift commander, who accused him of trying
to ruin her career, and warned him that she could make his stay "very
uncomfortable" if he did not "back off." Instead of relenting,
he filed a second grievance. He had no further contact with the shift
commander, and suffered no adverse consequences. Upholding summary judgment for
the defendant in the detainee's lawsuit, a federal appeals court found that the
trial court properly determined that the shift commander's alleged
"isolated comments, uncoupled from any adverse action, could not have
deterred a reasonable person from exercising his First Amendment rights."
Foster v. Powell, #09-2070, 2010 U.S. App. Lexis 24572 (Unpub. 7th Cir.).
A federal appeals court reinstated a federal
prisoner's civil rights lawsuit over his transfer to a lock-down unit in
another prison, since his claim that prison staff were being abusive in
retaliation for his protected conduct of filing grievances was "at least
plausible," and therefore should not have been dismissed as frivolous. Transfer
to a more restrictive environment with fewer privileges would deter a
"person of ordinary firmness" from exercising his right to file
grievances, so the plaintiff adequately alleged that the transfer was
retaliatory, and violated his First Amendment rights. Hill v. Lappin, #09-5575,
2010 U.S. App. Lexis 26261 (6th Cir.).
A prisoner transferred to a new facility filed
"numerous formal grievances" concerning the conditions of his
confinement, as well as grievances concerning the denials of those grievances.
Finally, he filed a civil rights lawsuit against sixteen correctional
employees, claiming that they had engaged in unlawful retaliation against him
for protected conduct, such as pursuing his grievances and a prior lawsuit. The
retaliation allegedly consisted of denying him proper housing, denying him the
non-smoking, compatible cellmates he requested, failing to properly investigate
or adjudicate his grievances, failing to provide him with required program
services, and failing to provide institutional support for a favorable parole
recommendation. He later added claims that one defendant also retaliated
against him by firing him from inmate employment, preventing him from receiving
outside work clearance, denying him access to mandatory program services, and
having his typewriter improperly confiscated. Upholding summary judgment for
the defendants, a federal appeals court found that the prisoner had failed to
produce any evidence, beyond his "bare assertions," that any of the
adverse actions taken against him were the result of unlawful retaliation. The
denials of housing and cellmate requests, in particular, were found to be based
on legitimate penological reasons. The prisoner was, in fact, transferred to a
non-smoking unit, but was unsatisfied because some prisoners were violating the
policy by sneaking cigarettes in. His two requests, that he be moved away from
harassing cellmates and housed in a non-smoking unit, were essentially granted.
The mere failure to allow the plaintiff to choose his own cellmates was not an
action adverse enough to deter a person of ordinary firmness from exercising
his constitutional rights. The denial of support for the prisoner's parole was
based on his failure to fully accept responsibility for his crime, which involved
traveling across state lines to have sexual relations with an underage girl.
His termination from a job as a prison janitor occurred after his prior job as
a "block runner" was discontinued, and was based on a poor
performance evaluation and inappropriate demeanor. The prisoner himself
expressed his wish not to be a janitor, and at one point refused to work. All
other claims were similarly rejected, and in some instances, such as the
confiscation of the typewriter, the prisoner failed to show that the individual
named as the responsible defendant was actually involved in the action.
Alexander v. Fritch, #10-2173, 2010 U.S. App. Lexis 20679 (Unpub. 3rd Cir.).
A Wisconsin inmate claimed that his First
Amendment rights were violated by a prison policy denying prisoners access to
commercially produced photos, and limiting to 50 the number of photos inmates
may possess, as well as by prison officials' actions in not delivering to him a
number of photos that he claimed were not within the definition of prohibited
pornography, although they were "risque." A Wisconsin appeals court
found that defendant officials were entitled to qualified immunity, as the
prisoner had no clearly established constitutional right to receive
commercially sold photos, or to possess in excess of 50 photos. The prison had
a legitimate interest in conserving staff resources that would be needed to
screen such photos, and there were alternate ways of prisoners seeing such
things as celebrity photos, such as in magazine subscriptions. Examining the
particular photos withheld, the court also concluded that the majority were
properly withheld under rules prohibiting material that is pornographic or
features nudity. Four photos, however, were improperly withheld under the
pornography ban, prior to the ban on commercial photos being adopted, as they
were found to be mere "swimsuit" pictures in which the swimsuits
fully covered each model's pubic area, and areola. But because the swimsuits
were "skimpy," and composed of thin fabric, and the models were
provocatively posed, they came "so close" to pornography and nudity
that a prison official might reasonably come "to a different
conclusion" when reviewing them, so the individual defendants were also
entitled to qualified immunity on this claim. Lacy v. Huibregtse, #2008AP1870,
2010 Wisc. App. Lexis 568 (Unpub. 4th Dist.).
The majority of a three-judge federal appeals
panel rejected a prisoner's claim that a correctional employee had him
transferred to a higher-level security facility in unlawful retaliation for
having filed prison grievances, They agreed that filing such grievances
constituted constitutionally protected activity, but found that the prisoner's
assertions that the employee had "confronted" him about one such grievance
was insufficient to show a cause and effect relationship between the filing of
the grievance and the subsequent transfer, particularly as the prisoner failed
to show that the employee was involved in any way in the decision to transfer
him. A third member of the panel dissented, arguing that the prisoner's
assertion that the employee told him that he would be returning to a higher
security level, if true, could be used to infer that the employee had some
involvement in the transfer decision. The close proximity in time between the
confrontation with the employee and the transfer also might point to an act of
retaliation, the dissenter contended. Cantley v. Armstrong, #09-1092, 2010 U.S.
App. Lexis 17766 (Unpub. 6th Cir.).
A newspaper that reports on prison legal issues
claimed that California prison officials violated its First Amendment rights by
refusing to deliver its publications to some prisoners, and by refusing to
deliver certain hardcover books that the publisher wished to send to prisoners.
The parties reached a settlement agreement which included delivery of the
publications to prisoners, and the payment of $65,100 in damages. Ultimately
$458,000 in attorneys' fees and costs were also paid by the state. A federal
appeals court has now upheld a trial court award of an additional $137,502.46
in attorneys' fees and costs for work done monitoring the state's compliance
with the settlement agreement, including corresponding with inmates. Prison
Legal News v. Schwarzenegger, #09-15006, 2010 U.S. App. Lexis 11690 (9th Cir.).
A Texas prisoner claimed that he obeyed an
officer's orders to walk along the right side of a yellow line in an orderly
manner, but that minutes later, he was approached in his cell and handcuffed by
another officer for failing to follow the order. He was charged with a
disciplinary offense of creating a disturbance, allegedly in retaliation for
complaints his family had made about his treatment at the prison. The Texas
Supreme Court agreed that the hearing officer properly declined to call, as a
witness, the officer who handcuffed the prisoner, as he was not present at the
time of the alleged misconduct. Also, there was no evidence that the
disciplinary hearing resulted in any punishment that would be sufficient to
deter the prisoner from the exercise of his First Amendment rights, so his
retaliation claim failed. Institutional Division of Texas Dep't of Criminal
Justice v. Powell. #08-0345, 2010 Tex. Lexis 480.
A prisoner claimed that a correctional officer
had him removed from a job in the prison laundry in retaliation for a letter he
wrote to the governor complaining about the officer. The retaliation claim was
rejected, as there was no evidence refuting the officer's explanation that the
prisoner was removed from the job at his own request because he felt
"unsafe" there. Strope v. McKune, #09-3283, 2010 U.S. App. Lexis
11956 (Unpub. 10th Cir.).
While working as a computer lab tutor at a
prison, an inmate reminded his supervisor that an outside contractor had
recommended removing certain network restrictions. The prisoner contended that
the authorization of the new network amounted to a misappropriation of
government funds. Hours after the discussion, the supervisor told the inmate
that he might not be able to keep his job. The prisoner was, in fact,
terminated, but was reassigned to work as an education aide weeks later. His
new job had the exact same pay grade as his former job. Upholding the rejection
of the prisoner's First Amendment retaliation claim, the court found that even
if the termination had been in retaliation for the exercise of a constitutional
right, the prisoner had not suffered a constitutional violation, as his pay
rate remained the same. Shelton v. Fox, #09-40264, 2010 U.S. App. Lexis 11016
(Unpub. 5th Cir.).
An inmate who had worked in a prison
library claimed that the librarian unlawfully retaliated against him in
violation of his First Amendment rights because he had criticized library
policies. In response, the librarian allegedly initiated a series of false
disciplinary actions against him as well as false work evaluations, disposing
of his personal materials, and denying access to the library. The court ruled,
however, that the prisoner's speech was unprotected by the First Amendment as a
matter of law. With regard to his criticisms of the library's policies, he had
openly challenged directives issued by the librarian in front of other inmate
law clerks, which was inconsistent with legitimate penological interests, which
was also true of the "confrontational" manner in which he complained
about his personal material, interfering with prison discipline and order.
Watkins v. Kasper, #08-3105, 2010 U.S. App. Lexis 6954 (7th Cir.).
Prison employees investigating reports that an inmate
and others were planning to engage in assaults and a work stoppage, discovered
the existence of an inmate petition. The plaintiff inmate was then accused of
conspiring to circulate an unauthorized petition and assault staff members and
other inmates. Found guilty of these charges, he was transferred to Wisconsin's
highest security prison as a result. Rejecting First Amendment retaliation
claims, the appeals court found that the punishment imposed was essentially for
his role in a planned prisoner uprising, not the petition. Claims were also
rejected against some defendants because of their lack of involvement in the
seizure of the petition from another prisoner's cell or the filing of a conduct
report against the plaintiff. The appeals court also found no evidence of any
improper racial motivation for the actions taken against the inmate. Felton v.
Ericksen. #09-2450, 2010 U.S. App. Lexis 4554 (Unpub. 7th Cir.).
A federal appeals court upheld a jury verdict
finding that corrections officers did not retaliate against him in violation of
his First Amendment rights. Further, the alleged conduct of confiscating his
eyeglasses and verbally threatening him did not rise to the level of an Eighth
Amendment violation, since there was no indication that these actions caused him
sufficiently serious harm or injury. Felder v. Filion, #08-1767, 2010 U.S. App.
Lexis 4680 (Unpub. 2nd Cir.).
A jury returned a verdict in favor of prison
officials on an inmate's claim that they removed him from his prison law
library job in retaliation for his protected First Amendment activities of
filing grievances and civil rights lawsuits and helping other prisoners do so.
On appeal, this result was upheld. The trial court properly denied a motion to
bar evidence that the prisoner was removed from his prison job because
officials suspected him of stealing copy paper. This evidence was relevant to
their defense that their actions were not retaliatory for protected activity.
While testimony about information prison officials received from a confidential
informant was hearsay, it was not offered to show the truth of the accusation
that the prisoner stole paper, but merely that the officials suspected that he
had and acted on the basis of that suspicion. Hale v. McMillen, #09-2737, 2010
U.S. App. Lexis 2249 (Unpub.3rd Cir.).
A prisoner claimed prison officials'
actions in confiscating his fantasy role-playing "Dungeons and
Dragons" game materials and banning the playing of the game violated his
due process, equal protection, and First Amendment free speech rights. He
disputed the assertion that playing the game promoted gang behavior, and
argued, in fact, that doing so could promote rehabilitation. A federal appeals
court, upholding the ban, found that prison officials could reasonably believe that
playing the game could promote gang behavior, and undermine prison security,
and that the game's structure mimicked gang structure. The burden was on the
prisoner to refute those contentions, and he failed to adequately do so, Singer
v. Raemisch, #07-3400, 2010 U.S. App. Lexis 1506 (7th Cir.).
A prisoner's statement that he would file and
pursue a grievance against a prison employee if she failed to assist him in
obtaining footlockers could be constitutionally protected conduct under the
First Amendment, requiring the reinstatement of his dismissed First Amendment
claim that the employee unlawfully retaliated against him by taking actions
that subjected him to the possibility of receiving a major misconduct ticket.
Pasley v. Conerly, #08-2132, 2009 U.S. App. Lexis 21364 (Unpub. 6th Cir.).
A federal appeals court upheld the award of $1 in
compensatory damages and $2,500 in punitive damages to a prisoner on his claim
that a disciplinary charge was filed against him in retaliation for his having
filed a grievance against a correctional officer for allegedly cursing at him
and threatening him. The trial court did not clearly err in determining that
the officer would not have filed the disciplinary charge against the prisoner
in the absence of a retaliatory motive. The disciplinary report accused the
prisoner of having made false statements in his grievance. Haynes v.
Stephenson, #08-3766, 2009 U.S. App. Lexis 27433 (8th Cir.).
An inmate who allegedly granted media interviews
beyond the scope of the Bureau of Prisons' permission claimed that a county
sheriff and the BOP director violated his First Amendment rights by denying him
good time credits as a result of violating rules restricting such interviews.
His home confinement was also revoked as a result of the rules violation. A
federal court found that his free speech rights were not violated since there
were legitimate penological interests in control of whom he came into contact
with during his home confinement, and he did have other ways of communicating
with the media. The court also rejected a due process claim, noting that he
clearly violated a rule he agreed to in his electronic monitoring contract that
required prior approval of all media interviews. Hatch v. Lippin, #09-11490,
2009 U.S. Dist. Lexis 93880 (D. Mass.).
A prison official was not entitled to summary
judgment on a prisoner's claim that he violated his First Amendment rights by
including, in his denial of a grievance, an admonition that the prisoner should
be careful what he wrote on his grievances. There were legitimate factual
issues as to whether this "chilled" the prisoner's rights and whether
it was related to legitimate correctional goals. Brodheim v. Cry, #07-17081,
2009 U.S. App. Lexis 23721 (9th Cir.).
A prisoner claimed that he suffered an Eighth
Amendment violation because prison employees verbally harassed him, tried to
place him in a chow hall seating area where he could have been attacked by
other prisoners, and "stared" at him for approximately five minutes when
he was tied down to his bed wearing only boxer shorts, with his legs spread
apart. Finding these claims frivolous, the court noted that he did not claim
physical injury, did not show any indication of a use of excessive force, and
did not show that a defendant made any comments to him of a sexual nature. The
court also rejected the prisoner's First Amendment claims regarding the
handling of his mail, finding that allegedly crossing out the Zip code on a
letter he mailed did not amount to a constitutional violation, and that he
suffered no harm from the alleged opening of his legal mail. Crownhart v.
Sullivan, #08-1483, 2009 U.S. App. Lexis 21814 (Unpub. 10th Cir.).
The chronology of events surrounding a prisoner's
transfer to a new facility was sufficient to assert a possible claim for
retaliatory transfer against a deputy warden. The prisoner claimed that the
defendant transferred him for filing a grievance against him. Williams v.
Brown, #08-16230, 2009 U.S. App. Lexis 20193 (Unpub. 11th Cir.).
While there had been "some issues"
concerning the plaintiff prisoner's allegedly excessive book requests through
the prison library system, he failed to show that the defendant library
director had anything to do with the problem, or that the defendant conspired
with other prison employees to retaliate against him for filing a grievance, in
violation of his First Amendment rights. Zulu v. Botta, #05-CV-6529, 2009 U.S.
Dist. Lexis 40762 (W.D.N.Y.).
Prisoner failed to establish a denial of access
to the courts based on failure to grant him requested library time when he
could not show that he had suffered any actual injury to his ability to
litigate his claims. He also failed to show that disciplinary actions taken
against him was in retaliation for his pursuit of his claims. Bandey-Bey v.
Crist, No. 08-2084, 578 F.3d 763 (8th Cir. 2009).
A prisoner's claim that he was disciplined for
sending a note to another prisoner, which violated a legitimate regulation, was
an insufficient basis for a claim of unlawful retaliation in violation of the
First Amendment. The prisoner did allege sufficient facts to create a due
process claim regarding the alleged denial of his right to call requested
witnesses at his disciplinary hearing. He claimed that despite having requested
these witnesses repeatedly before and during the hearing, an officer falsely
wrote down that no witnesses were requested. No argument was presented that the
witnesses were denied for reasons of institutional safety or other legitimate
correctional objectives, and the requested witnesses appeared to have
information relevant to the prisoner's claim that a correctional officer was
spreading false rumors that h was a "snitch" and that some inmates
had been bribed to testify falsely against him. Moulds v. Bullard, #08-10706,
2009 U.S. App. Lexis 18296 (Unpub. 11th Cir.).
When a prisoner gave advice to a fellow inmate
about how to file a grievance, he was not engaged in constitutionally protected
speech. His own filing of grievances, however, as well as his statements about
his intention to file grievances against a treatment program assistant, were
protected speech. The prisoner failed to show that the assistant retaliated
against him because of the grievances, since his grievances were a response to
her actions, not the cause of them. Coleman v. Beale, #07-CV-6219, 2009 U.S.
Dist. Lexis 58465 (W.D.N.Y.).
While a prison guard's alleged action of
displaying a noose could not reasonably have been interpreted by a prisoner as
constituting a threat against him, and was not, therefore, cruel and unusual
punishment, the trial court should not have dismissed the prisoner's claim that
he was unlawfully retaliated against, including suffering the loss of his
prison job, in response to his pursuit of a grievance over the incident. Dobbey
v. Illinois Dept. of Corrections, #08-2828, 574 F.3d 443 (7th Cir. 2009).
While the plaintiff inmate asserted that false
disciplinary reports, for which he was sanctioned, were filed against him in
retaliation for his use of the grievance system, he produced no evidence of
this except for the timing of the discipline, and did not show that his filing
of grievances was a motivating or a substantial factor in the decision to file
three misconduct reports against him. The defendants presented evidence that
they had legitimate penological reasons for the filing of the reports.
Toussaint v. Good, #08-3751, 2009 U.S. App. Lexis 14991 (Unpub. 3rd Cir.).
An inmate accused prison officials of violating
his First Amendment rights by retaliating against him for writing a pamphlet
that encouraged other prisoners to engage in work stoppages. Such work
stoppages, the court stated, were deliberate disruptions of prison order, and
restrictions on prisoners' rights to organize and petition were reasonable when
inmate grievance procedures were available. Advocacy of such work stoppages
were not entitled to First Amendment protection when less disruptive means of
pursuing grievances were available. Pilgrim v. Luther, #07-1950, 2009 U.S. App.
Lexis 14588 (2nd Cir.).
A prisoner claimed that subjecting him to a
disciplinary hearing for using vulgar or indecent language in a note mailed to
opposing counsel violated his First Amendment rights. Rejecting this claim, a
federal appeals court found that the note, which was written on toilet paper,
resembled a threat and showed a "completely unjustified" disrespect
for authority. It used "unacceptably vulgar" language that would not
be tolerated in the free setting. Imposition of discipline for writing the note
helped correct behavior that would prejudice the prisoner when he left prison.
Morgan v. Quarterman, #07-41064, 2009 U.S. App. Lexis 12325 (5th Cir.).
While book publishing, since it could result in
the payment of royalties to the prisoner, did constitute a "business
activity" under California law, the court, without further evidence, could
not determine that a decision barring the prisoner from publishing his book
furthered a substantial or important governmental interest unrelated to the
suppression of his First Amendment expression. Further proceedings were
therefore ordered on his First Amendment claims. Bretches v. Kirkland,
#07-16022, 2009 U.S. App. Lexis 11750 (Unpub. 9th Cir.).
Massachusetts inmates challenged a state
regulation that banned their receipt of sexually explicit publications or
publications featuring nudity, as well as a correctional policy against
displaying such materials in their cells. Rejecting the plaintiffs' First
Amendment claims, the federal appeals court found that there was a rational
connection between legitimate governmental interests and the means used to
further them. Prison security concerns supported the cell display policy.
Josselyn v. Dennehy, #08-1095, 2009 U.S. App. Lexis 12272 (1st Cir. Cir.).
A prisoner claimed that he suffered unlawful
retaliation, in violation of his First Amendment rights, after he provided
assistance in legal matters to other prisoners. The retaliation supposedly
included deprivation of property, improper segregation, and interference with
his right of access to the courts. A federal appeals court found that the
plaintiff prisoner failed to show that the defendants' actions affected his
ability to pursue his legal claims, or that the conditions in segregation
imposed a major hardship. The court ordered further proceedings, however, on
the claim that he was deprived of property in retaliation for his legal
assistance to other inmates, and that he provided this assistance to try to
protect constitutional rights or achieve social change, activities protected by
the First Amendment. Taylor v. McSwain, #08-12238, 2009 U.S. App. Lexis 12858
(Unpub. 11th Cir.).
A federal prison rule that barred in-person
meetings between reporters and prisoners confined in a special unit because
they were sentenced to death did not violate equal protection, but was
justified by the differing needs of security in different units. Additionally,
press interviews could potentially turn some prisoners into celebrities, and
increase prison tension. The First Amendment was not violated, given that
uncensored outgoing correspondence directed to the media was allowed. Finally,
since the ban on in-person media interviews was a blanket ban, it was viewpoint
and content neutral. Hammer v. Ashcroft, #06-1750, 2009 U.S. App. Lexis 13804
(7th Cir.).
Rejecting a prisoner's claim that he had faced a
false disciplinary charge in retaliation for his exercise of his First
Amendment rights, the court ruled that any adversity suffered was minimal since
the disciplinary charges were dropped after a week, no sanctions resulted, and
the prisoner was afforded several opportunities to give his side of the facts
to neutral persons. Starr v. Dube, #08-1322, 2009 U.S. App. Lexis 13552 (Unpub.
1st Cir.).
A prisoner failed to show a causal connection
between his transfer, his loss of his bed after he was taken to a hospital for
treatment, and his filing of a grievance over an incident in which he was
allegedly "yanked" out of a shower and "paraded" naked back
to his cell. The court therefore rejected his First Amendment retaliation
claim. The court also found that the defendant correctional employees were
entitled to qualified immunity on the prisoner's claim that the shower incident
violate his Eighth Amendment rights, as he had no clearly established right not
to have his naked body exposed in prison. Solan v. Ranck, #07-4571, 2009 U.S.
App. Lexis 9987 (Unpub. 3rd Cir.).
An affidavit from another prisoner, which was the
only evidence a plaintiff inmate showed of retaliation against him for filing a
grievance, actually showed that officials were motivated to place him in
administrative segregation by his dangerousness, not his grievance filing. They
would have taken the same actions even if he had never filed the grievance,
based on his gang affiliation and his long history of violent and abusive
behavior. Denying the prisoner newspapers did not violate the First Amendment,
but was an acceptable policy decision for officials trying to achieve legitimate
goals. The court also rejected the claim that the prisoner's rights were
violated by him being forced to wear a paper gown after he was found casting a
string between cells to try to pass notes and other items. Soto v. Bertrand,
#08-2540, 2009 U.S. App. Lexis 9901 (Unpub. 7th Cir.).
A prisoner did not have a right to review all the
potentially inculpatory evidence before a disciplinary hearing began.
Additionally, while he complained of not receiving certain documentary evidence
at all, it was provided to him orally. His claim that he was denied the right
to call witnesses was contradicted by the fact that he did, in fact, call a
witness, and his failure to name any particular witness he was allegedly
prevented from calling. His general attack on the hearing officer as
"immoral, not impartial and not unbiased" was not supported by any
particulars. There was, the court found, "some evidence" in the
record to support disciplinary action against the prisoner, and no proof of a
violation of his due process rights. The prisoner also failed to show that the
incident report was filed against him in retaliation for his prior filing of a
federal civil rights lawsuit, in violation of his First Amendment rights. Lasko
v. Holt, #08-4216, 2009 U.S. App. Lexis 11482 (Unpub. 3rd Cir.).
A prison rule requiring inmates to put 10% of
certain funds into a savings account to be paid to them on release was
justified by a legitimate correctional interest in easing their transition back
into society. The trial court improperly rejected, however, the prisoner's
challenge to a ban on sexually explicit materials when he had standing to
challenge the rule since he had such materials, which he mailed to the court to
comply with a deadline to dispose of them, and there was an indication that he
would have been subject to discipline had he not done so. Sperry v. Werholtz,
#08-3274, 2009 U.S. App. Lexis 7931 (Unpub. 10th Cir.).
Prison regulations providing for censorship of
sexually explicit material and materials promoting violence were not facially
violative of the First Amendment, as they were intended to promote legitimate
governmental interests. A prisoner could, however, pursue his claim that
officials improperly applied the regulations to exclude publications that were not
inflammatory. He could also pursue claims concerning a prohibition on
publications because they contained posters, stickers, or other free items,
since the defendant officials failed to state their justification for this
prohibition, and the prisoner further claimed that it was unevenly applied,
leading to improper content-based decisions. The defendants also failed to show
why the suggested alternative of removing these items from the publications
would be burdensome. Dean v. Bowersox; #08-1558, 2009 U.S. App. Lexis 8477
(Unpub. 8th Cir.).
A prisoner had no protected First Amendment right
to make disrespectful comments about prison officials in his outgoing mail to
them, calling them "evil," "unmerciful," and
"inhumane." The court rejected the prisoner's claim that prison
officials had unlawfully retaliated against him for his statements, in
violation of his First Amendment rights. Huff v. Mahon, No. 08-6568, 2009 U.S.
App. Lexis 3605 (Unpub. 4th Cir.).
Prisoner stated a viable First Amendment claim in
alleging that prison officials retaliated against him for making a statement in
support of a wrongful death lawsuit against them. Bridges v. Gilbert, No.
07-1551, 2009 U.S. App. Lexis 5129 (7th Cir.).
Prisoner failed to show that correctional defendants
confiscated his property in retaliation for his previous filing of grievances,
since he failed to show a causal relationship between the decision to
confiscate the property and his prior actions. Royster v. Beard, No. 08-3353,
2009 U.S. App. Lexis 1364 (Unpub. 3rd Cir.).
A prisoner failed to show a sequence of events
from which it could be inferred that allegedly false disciplinary charges were
filed against him in retaliation for his filing of complaints against
correctional personnel. Mahogany v. Rogers, No. 06-31144, 2008 U.S. App. Lexis
18635 (Unpub. 5th Cir.).
Even if one of the correctional officials were
found to have entrapped a prisoner into a disciplinary violation, as he
claimed, there was no showing that this was done in retaliation for the
prisoner's testimony in a federal class action lawsuit against the correctional
facility. Summary judgment for the defendants was therefore appropriate in the
prisoner's First Amendment lawsuit. Clark v. Johnston, Case No. 4:07 CV 941, 2008
U.S. Dist. Lexis 101483 (N.D. Ohio).
There was a lack of evidence that a prison
employee who filed a disciplinary report against a prisoner had knowledge of
his prior federal civil rights lawsuit, justifying summary judgment on the
prisoner's retaliation claims. Bennett v. Goord, No. 06-3818, 2008 U.S. App.
Lexis 24441 (Unpub. 2nd Cir.).
> A Texas prisoner
claimed that he had pseudofolliculitis barbae (PFB), a medical condition on the
basis of which he was issued a clipper shave pass (CSP) which constituted
permission not to shave and to maintain a 1/4" beard. He further claimed
that prison employees improperly threatened him with disciplinary action for
failing to shave, imposed discipline on him on that basis, and declined to
renew his CSP in retaliation for his complaints. These claims were all
rejected, as the record indicated that the discipline was imposed for failing
to maintain a 1/4" beard, not for failure to be clean-shaven. He also
failed to show that his medical condition was serious and posed a risk of
substantial harm, or that he was subjected to retaliation. James v. Ramirez,
No. 07-50674, 2009 U.S. App. Lexis 83 (Unpub. 5th Cir.).
> The cost of
collect telephone calls placed by inmates to outside persons, which included a
commission paid by the phone service provider to the New York State Department
of Correctional Services, did not violate the First Amendment rights of the
call recipients, when the cost was not so "exorbitant" as to
interfere with their right to communicate with the inmates. Walton v. N.Y.
State Dept. of Correctional Services, #504552, 2008 N.Y. App. Div. Lexis 9558
(A.D. 3rd Dept.).
A policy barring committed sex offenders from
having access to sexual material relating to children did not violate their
First Amendment rights. Possession of such material would undermine the
treatment being provided to the plaintiff, who had been convicted of crimes
against children. Stewart v. Richards, Case No. C08-5275, 2008 U.S. Dist. Lexis
83586 (W.D. Wash.).
Genuine factual issues existed as to whether an
inmate was removed from his prison law library job in retaliation for filing a
grievance concerning a federal prison camp's practice of taking pictures of
visitors and allegedly opening his legal mail outside his presence. Nunez v.
Renda, Civil No. 3:CV-05-1763, 2008 U.S. Dist. Lexis 86280 (M.D. Pa.).
A prisoner's conduct in filing grievances was activity
protected by the First Amendment, and there was sufficient evidence to support
an inference that the unit manager of his cell block was motivated by
retaliation for such grievances in placing him in administrative custody and
later transferring him to a different prison. The unit manager showed, however,
that the same steps would have been taken for legitimate penological reasons,
regardless of the inmate's grievances, so there was no showing that retaliation
caused the administrative custody or transfer. The court also found no evidence
that these actions were taken on the basis of the prisoner's religious affiliation.
Holbrook v. Walters, No. 08-2080, 2008 U.S. App. Lexis 21679 (Unpub. 3rd Cir.).
Prisoner showed that officer filed a false
disciplinary charge against him for filing a grievance against him for cursing
and threatening the prisoner in violation of department policy. While the
disciplinary charges were later dismissed, the prisoner suffered six days of
isolation, during which he received showers only every three days and had
restricted exercise privileges. He was awarded $1 in nominal damages, as he had
not suffered any physical injuries. The prisoner was also awarded $2,500 in
punitive damages for the officer's malicious disregard for his right to access
the courts. Haynes v. Stephenson, Case No. 5:07CV00295, 2008 U.S. Dist. Lexis
81571 (E.D. Ark.).
There was a genuine issue of fact as to whether a
correctional officer retaliated against him for filing grievances by writing up
false disciplinary reports and intentionally closing a cell door on him,
resulting in injury. Shaw v. Cowart, No. 07-14884, 2009 U.S. App. Lexis 23500
(Unpub.11th Cir.).
A prisoner could go forward with his claim that
he suffered retaliatory action in connection with a transfer on the basis of
his actions concerning a grievance, in violation of his First Amendment rights.
The prisoner presented a plausible claim of retaliation on the basis of a memo
requesting the transfer which was submitted outside of the normal procedure for
such requests, and which spoke about his attempts to "create unrest"
among other prisoners. Milligan v. Reed, Civil Action No. 06-cv-00911, 2008
U.S. Dist. Lexis 70864 (D. Colo.).
Prisoner adequately alleged that a correctional
officer seized and destroyed his family photographs from his cell in
retaliation for grievances that he had filed or threatened to file against the
officer. The court rejected his cruel and unusual punishment, equal protection,
and due process claims. Olmsted v. Sherman, No.08-cv-439, 2008 U.S. Dist. Lexis
67391 (W.D. Wis.).
Federal prisoner failed to show that the Ensign
Amendment, 28 U.S.C. Sec. 530C(b)(6) violated his First Amendment rights in
restricting his access to sexually explicit publications, specifically certain
magazines and a book that were sent to him. Restricting such materials was
reasonably related to legitimate penological interests in security and
rehabilitation. The court did rule, however, that Federal Bureau of Prisons
(BOP) Program Statement 5266.10, Sec. 7 was unconstitutional in allowing a
rejected publication to be returned to the publisher before an administrative
review was completed, and the enforcement of that Program Statement was
enjoined. Jordan v. Sosa, Civil Action No. 05-cv-01283, 2008 U.S. Dist. Lexis
53006 (D. Colo.).
Federal appeals court upholds the rejection of a
prisoner's claims that he faced retaliation for exercising his right of access
to the courts both in filing his own lawsuits, and in providing legal advice to
other prisoners. The court notes that providing legal advice to other prisoners
is not entitled to any greater First Amendment protection than communication
with fellow inmates on any other topic. The prisoner failed to show any
specific harm that the alleged retaliation caused to the progress of his
lawsuits. Gronquist v. Deshazer, No. 06-35024, 2008 U.S. App. Lexis 19856
(Unpub. 9th Cir.).
Trial court should not have dismissed a
prisoner's lawsuit claiming that his First Amendment rights were violated when
prison officials allegedly censored his outgoing mail and cited him for
violating prison disciplinary rules by using offensive and vulgar racist
language describing prison officials. The trial judge could not decide, on the
basis of merely the pleadings, whether the actions taken furthered substantial
governmental interests or went no further than needed to protect those
interests. Barrett v. Belleque, No. 06-35667, 2008 U.S. App. Lexis 20087 (9th
Cir.).
The record failed to show how a prison's limit of
ten books in a prisoner's cell furthered safety and security interests. The
appeals court ordered further proceedings on the prisoner's lawsuit challenging
the removal of 57 books, including the Koran and other religious books, from
his cell under the policy, claiming that this violated his rights under the
First Amendment and the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. Sec. 2000cc et seq. Warren v. Pennsylvania, No. 07-3011,
07-3011, 2008 U.S. App. Lexis 17395 (Unpub. 3rd Cir.).
Prison officials failed to show that a regulation
under which they confiscated a prisoner's magazine tear-outs of photographs was
rationally related to legitimate objectives. The photo tear-outs were
confiscated because they came from the prisoner's magazines, while, had those
photos been part of a clipped article that arrived in the mail to the prisoner,
they would not have been confiscated. The prisoner, therefore, could pursue his
First Amendment claim, but the defendant officials were entitled to qualified
immunity on a claim for damages because they acted pursuant to official prison policies,
and those policies were not "patently" in violation of established
constitutional rights. Brown v. Mason, No. 06-35766, 2008 U.S. App. Lexis 16725
(Unpub. 9th Cir.).
Prisoner failed to show that his transfer to
another facility was in retaliation for his pursuit of grievances, or that his
grievances were denied in retaliation, rather than because the defendant
officials believed that they had no merit. Additionally, the defendants
presented "plausible and independent" reasons for transferring him.
It was also undisputed that he had previously requested a transfer, and that
the transfer moved him 200 miles closer to his home. Alexander v. Forr, No.
06-4467, 2008 U.S. App. Lexis 18682 (Unpub. 3rd Cir.).
A Delaware inmate failed to show that he had been
subjected to unlawful retaliation in violation of his First Amendment rights by
having a misconduct report filed against him after he allegedly reported
violations of prison rules in the kitchen where he was assigned to work, and by
being subsequently disciplined and transferred following a finding of guilty on
the charged infractions. The inmate failed to show that he had been engaged in
constitutionally protected speech before he was fired from his kitchen job,
since he only made informal verbal complaints about kitchen incidents, and
failed to file any formal grievances or complaints. St. Louis v. Morris, Civ.
No. 06-236, 2008 U.S. Dist. Lexis 57203 (D. Del.).
A prisoner in a private prison in Texas had a
First Amendment right to write to the Wyoming Department of Corrections
Director asking to be returned to Wyoming and complaining about the conditions
of his confinement, and stated a valid claim against seven prison employees
contending that they retaliated against him for doing so. He also asserted a
valid claim for unconstitutional deprivation of his funds by alleging that he
was fined $50 because he testified in another prisoner's disciplinary hearing.
Pfeh v. Freudenthal, No. 07-10312, 2008 U.S. App. Lexis 12897 (Unpub. 5th
Cir.).
Trial court improperly failed to recognize that a
prisoner could have a First Amendment right to make "unflattering"
statements to prison staff members in outgoing mail to his parents. The court
should have analyzed whether the letters in question, which were allegedly
censored and/or seized, fell within any identifiable categories of mail
presented a threat to security and order. The court ordered further proceedings
on the prisoner's claims concerning his personal correspondence, as well as on
claims that he faced retaliation for statements made in the letters. Berenguel
v. Bell, No. 07-10066, 2008 U.S. App. Lexis 13597 (Unpub. 5th Cir.).
A newspaper's refusal to accept a paid
subscription from a prisoner based on a corporation policy against supplying
subscriptions to prisoners did not violate his First Amendment rights, and the
corporate action was not compelled by a city resolution that "urged"
the corporation to adopt such a policy. Henderson v. Huibregtse, No. 07-2571,
2008 U.S. App. Lexis 12671 (Unpub. 7th Cir.).
Removal of a prisoner from his misconduct hearing
by correctional officers and prison nurses did not violate his First Amendment
rights. His statement at the proceeding that the hearing officer was a
"foul and corrupted bitch" was not protected by the First Amendment
and constituted "insolence" in violation of prison regulations,
questioning the hearing officer's authority and the proceeding's integrity. The
court also found that the amount of force used was minimal and reasonable under
the circumstances. The prisoner also failed to show deliberate indifference to
his medical needs for his minor cuts and lacerations. Lockett v. Suardini, No.
06-2392, 2008 U.S. App. Lexis 10359 (6th Cir.).
Mississippi jailers claimed that, after they
witnessed a sergeant beating a prisoner, they were told to report the incident
to a supervisor, but were fired one day after they filed the report,
purportedly on unrelated charges of misconduct. Ordering further proceedings on
the fired jailers' First Amendment claims, an appeals court found that there
was a genuine issue of fact as to whether their action in filing the report was
part of their official job duties, and therefore not protected speech under the
First Amendment. The issue is whether or not language in a policy manual
stating that jailers should report certain kinds of incidents showed that their
actions in doing so was part of their job duties. The plaintiff jailers argued
that the manual did not create any such duty to report incidents such as the
beating. Williams v. Riley, No. 07-60252, 2008 U.S. App. Lexis 8990 (5th Cir.).
Prison officials were entitled to qualified
immunity in seizing, from a prisoner's cell, his written manuscripts, including
novels, short stories, and artwork. The prisoner himself agreed that the
officials had properly seized one of his stories as forbidden material under
prison regulations because of its sexually explicit nature. While there were
material issues of fact as to whether the defendants were justified in seizing
the remaining materials, or whether that seizure violated the prisoner's First
Amendment rights, since some of it was not sexually explicit, this was not
clear to the defendants at the time of the seizure. Their actions, therefore,
could constitute a reasonable mistake, which is inevitable in the context of
limited resources and serious security concerns. The prisoner also could not
have the appeals court address his complaint that the defendants had not
complied with a trial court injunction requiring the return of his writings,
when he failed to raise that issue with the trial court. Lee v. Carlson, No.
07-4093, 2008 U.S. App. Lexis 1572 (10th Cir.).
Prisoner's placement in and retention in
administrative custody for eleven years did not violate his constitutional
rights. His status was reviewed every ninety days, and the committee reviewing
that status repeatedly recommended that he remain in administrative custody
status for security and safety reasons, based on his history of serious misconduct,
which included participation in a prison riot and multiple assaults. The
prisoner failed to show that his continued administrative custody interfered
with his First Amendment rights, since he failed to identify a non-frivolous
claim that his status prevented him from presenting. He also claimed to show
that the conditions of his confinement violated his rights. Gans v. Rozum, No.
07-3750, 2008 U.S. App. Lexis 4744 (3rd Cir.).
Federal appeals court overturns trial court
decision upholding federal Bureau of Prisons policy preventing death row
inmates from engaging in face-to-face interviews with members of the media or
from discussing other inmates with the media. The appeals court found that
there were genuine material facts in dispute as to whether the policy was based
on security concerns or merely was a pretext for preventing death row inmates
from expressing their views to the public. Also at issue was whether there was
a legitimate reason for treating death row inmates different from other inmates.
Hammer v. Ashcroft, No. 06-1750, 2008 U.S. App. Lexis 808 (7th Cir.).
Prisoner's claim that he was improperly
disciplined for sending a copy of a letter to a prison internal affairs unit,
in violation of his First Amendment rights, is rejected by appeals court. The
letter sought information about how to pursue his claims in state court against
a prison official. The official considered the letter to be a threat because he
worked in the unit where the copy of the letter was sent. The appeals court
ruled that prison officials did not act unreasonably in viewing the sending of
the copy of the letter as a "veiled threat" against the official, or
in seizing the prisoner's legal papers after he filed a prison grievance, which
was an attempt to circulate a petition, in violation of prison rules. May v.
Libby, No. 05-1473, 2007 U.S. App. Lexis 27796 (7th Cir.).
Discipline of correctional employees because of
their association with a motorcycle club did not violate their First Amendment
or due process rights to freedom of intimate association or expressive
association. The court found that the motorcycle club memberships were not
expressive association "on matters of public" concern, and that those
memberships also were not intimate relationships provided protection under the
constitution. Additionally, law enforcement agencies believed that the
motorcycle club in question engaged in criminal acts. Piscottano v. Murphy, No.
05-3716, 2007 U.S. App. Lexis 29541 (2nd Cir.).
Prison officials were not entitled to dismissal
of prisoner's claims that they violated his First Amendment rights to freedom
of religion and freedom of speech in refusing to mail 13 letters he tried to
send to Baptist churches and ministers to seek prayer partners and religious pen
pals. These actions were taken to enforce a rule barring correspondence
soliciting or advertising for "money, goods or services," including
seeking pen pals. Prison officials, in the trial court, failed to offer any
explanation of the reason for the rule or what governmental interest it was
advancing. While they might yet justify the rule and their actions, they had
failed, to date, to do so, as a result of which the dismissal of the case was
premature. Adamson v. McDonough, No. 06-12579, 2007 U.S. App. Lexis 28969 (11th
Cir.).
Court upholds Massachusetts state regulation
banning all sexually explicit publications and items from prisons. The rule
banned the receipt, possession, and display of almost all materials with nude
or semi-nude images or other sexually explicit content, except in a medical,
educational, or anthropological context. The court ruled that there was a
rational relationship between the rule and the legitimate interest that
correctional facilities had in safety and rehabilitation. Under the rule,
publications were individually reviewed to determine whether their content fell
within the scope of the ban. Moses v. Dennehy, No. 06-10164, 2007 U.S. Dist.
Lexis 85359 (D. Mass.).
Prisoner presented evidence from which a
reasonable jury could find that major misconduct charges were brought against
him in retaliation for his filing of prison grievances, in violation of his
First Amendment rights, so that the defendant prison employees and officials
were not entitled to qualified immunity. Scott v. Stone, No. 06-1622, 2007 U.S.
App. Lexis 26624 (6th Cir.).
Prisoner failed to provide any supporting
evidence for his allegation that he was served tainted food in retaliation of
his pursuit of prior litigation, or that his snack food was tampered with. Ali
v. Suchocki, No. 06-5160, 2007 U.S. App. Lexis 26233 (3rd Cir.).
Prisoner who claimed that he was subjected to an
order to strip in a public hallway, a strip search, and a disciplinary
proceeding, all as part of a campaign of harassment in retaliation for his
exercise of his right of access to the courts could not recover compensatory
damages when he failed to allege a physical injury as required under 42 U.S.C.
Sec. 1997e(e). His vague claim on appeal that he suffered a wrist injury through
unspecified events at some unspecified time was inadequate to alter the result.
Further, the prisoner failed to show a constitutional violation as there were
no facts showing an intent to retaliate for the exercise of his First Amendment
rights. Samford v. Staples, No. 06-20717, 2007 U.S. App. Lexis 26851 (5th
Cir.).
Requiring an inmate to participate in a sex
offender treatment program, which required him to attend explicit group
discussions of a sexual nature and view certain images, did not violate his
First Amendment rights, based on the "vital" public and governmental
interest in rehabilitation of convicted sex offenders. Additionally, even if an
individualized sex offender treatment program existed which would have met the
plaintiff's objections, it would have "unduly depleted" the prison's
resources to provide it. The court failed to rule on the prisoner's objection
to participation in the program under the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc et. seq. on the
basis of the defendants' claim that they had not had sufficient opportunity to
respond to that claim. Schnitzler v. Reisch, No. Civ. 06-4064, 2007 U.S. Dist.
Lexis 72938 (S.D.).
Bureau of Prisons regulation prohibiting a
prisoner from publishing an article under a byline, 28 C.F.R. Sec. 540.20(b)
violates the First Amendment, and was not essential for any particular security
objective. The regulation was overbroad in discouraging all outgoing
correspondence with the news media. Jordan v. Pugh, No. 02-cv-01239, 2007 U.S.
Dist. Lexis 58231 (D. Co.).
There was a genuine issue of fact as to whether a
prison employee who moved an inmate from the first to the second floor did so
in retaliation for the prisoner having previously filed grievances and a
lawsuit, requiring further proceedings on his First Amendment claim. Cross v.
Dretke, No. 06-40513, 2007 U.S. App. Lexis 17207 (5th Cir.).
Prisoner failed to show that he was subjected to
unlawful retaliation after he filed a grievance against an officer. The officer
filed a misconduct report against him, which provided information concerning a
fight between the inmate's children and the officer's children at school. The
prisoner failed to show that the subsequent proceedings, which resulted in him
being put into administrative custody and transferred, constituted unlawful
retaliation. First, there was evidence that the officer had no involvement in
what occurred after filing the report, and that institutional stability and
safety required the separation of the officer and prisoner after the fight
between their children occurred. Davis v. Pennsylvania State, No. 06-5188, 2007
U.S. App. Lexis 17819 (3rd Cir.).
A correctional regulation which prohibited an
inmate's use of "abusive, obscene, or inappropriate language" did not
violate a Pennsylvania prisoner's rights, and punishment of a prisoner for
using such language in a prison form and a letter to a prison employee was
proper, even if those documents allegedly were part of the prisoner's attempts
to redress prison staff "malfeasance." Corliss v. Varner, No.
06-2328, 2007 U.S. App. Lexis 22202 (3rd Cir.).
Prisoner's claim that he was subjected to
retaliation and a "fabricated" misconduct complaint for expressing an
opinion about which television channel inmates would watch was properly
dismissed as frivolous. A First Amendment retaliation claim could not be based
on this, as expressing such an opinion was not protected speech. Wilson v.
Budgeon, No. 07-1607, 2007 U.S. App. Lexis 22086 (3rd Cir.).
Seizure without a hearing of prisoner's materials
concerning fantasy role-playing games, on the basis that materials of this sort
had the potential of promoting "gang mentality and an interest in
escape" did not violate either prisoner's due process of First Amendment
rights. Post-deprivation remedies available were adequate to protect any
possible due process rights, and the prison's policy was reasonably related to
curbing gang activity and protecting institutional safety and security. Singer
v. Frank, No. 05-C-1040, 2007 U.S. Dist. Lexis 55663 (E.D. Wis.).
While the working conditions in the prison
commissary were "perhaps uncomfortable," they did not violate the
plaintiff prisoner's Eighth Amendment rights against cruel and unusual
punishment. The prisoner also failed to show that he was improperly transferred
from his commissary job in retaliation for his grievances against his
supervisors. Toolasprashad v. Wright, No. 06-3784, 2007 U.S. App. Lexis 19875
(3rd Cir.).
A Florida prisoner failed to show that prison
officials altered his work assignment in retaliation for his pursuit of
grievances, in violation of his First Amendment rights. Brown v. Mache, No.
07-10034, 2007 U.S. App. Lexis 12326 (11th Cir.).
Prisoner could proceed with his First Amendment
claim that a housing lieutenant falsely accused him of misconduct, causing his
placement in a special housing unit in retaliation for his having filed a
grievance against the lieutenant. Rivera v. Selsky, No. 9:05-CV-0967, 2007 U.S.
Dist. Lexis 23064 (N.D.N.Y.).
California prisoner stated a possible First
Amendment claim by alleging that correctional officers confined him to his
quarters and destroyed two of his "recycled art statutes" in
retaliation for his having filed a grievance against two other correctional
officers. The alleged conduct, however, did not violate his Eighth Amendment
rights, and also did not violate his due process rights since he did not have a
liberty interest in avoiding confinement to his quarters, and the destruction
of the statutes, allegedly his property, was not "authorized." Davis
v. Calif. Dept. of Corrections, No. 1:06-cv-01062, 2007 U.S. Dist. Lexis 26507
(E.D. Cal.).
Prisoner allowed to amend his lawsuit to further
explain his claim that he was suspended from a softball league and a hobby
craft program in retaliation for having filed grievances, in violation of his
First Amendment rights. The court found that his lawsuit did not adequately
establish due process claims, because he had no protected liberty interest in
remaining in the recreational programs from which he had been suspended. Bigbee
v. Nalley, No. 07-C-71, 2007 U.S. Dist. Lexis 25336 (W.D. Wis.).
Prisoner did not establish a First Amendment
claim when he failed to show a connection between the alleged retaliation
against him and the grievances he had previously filed. Bartelli v. Galabinski,
No. 06-1545, 2007 U.S. App. Lexis 8853 (3rd Cir.).
Evidence supported a jury determination that a
prison supervisor fired inmate from his prison job and filed a false
disciplinary report against him for filing a grievance against him in violation
of his First Amendment rights. Appeals court upholds award of nominal damages
of $1 and punitive damages of $500 against the supervisor, but finds no basis
for liability against other defendants, including the prison warden,
administrative review board member, a grievance officer, and a prison
counselor, since there was no evidence that they were personally responsible
for the actions against the plaintiff. Henderson v. Johnson, No. 04-CV-3037,
2007 U.S. Dist. Lexis 17900 (C.D. Ill.).
Male prisoner failed to show a violation of
Fourth Amendment privacy rights or 8th Amendment rights based on female
correctional officers' alleged intentional observation of him in the shower or
in his housing unit nude or in various undressed states, but the court ordered
further proceedings on his claims that he was subsequently "ogled"
multiple times in retaliation for his pursuit of grievances over the
observations. The court dismissed claims based on a correctional officers
alleged actions in informing inmates and staff members that the plaintiff was a
homosexual, child molester, and/or rapist. Morris v. Newland, No. CIV
S-00-2794, 2007 U.S. Dist. Lexis 15725 (E.D. Cal.).
In a prisoner's lawsuit claiming that
correctional officers made threats of physical violence against him, as well as
threats of disciplinary action, to deter him from filing grievances, an
officer's statement that "something drastic" would occur if the
prisoner continued filing grievances, and a second officer's statement that the
prisoner should "learn to play the game or have a boot put in your
ass" could be found by a reasonable jury to be threats of violence aimed
at retaliating against the prisoner for engaged in protected First Amendment
activity. Pittman v. Tucker, No. 06-11454, 2007 U.S. App. Lexis 381 (11th
Cir.). [N/R]
Prisoner failed to show that retaliation against
him for testifying against an officer, in violation of his First Amendment
rights, was the reason he was placed in administrative detention and then
transferred to another facility. These events occurred after the officer filed
disciplinary charges against the inmate when he discovered a diagram of the facility's
kitchen in the prisoner's cell. Gay v. Shannon, No. 06-1325, 2006 U.S. App.
Lexis 31742 (3rd Cir.). [N/R]
Even if a prisoner's letters to the governor were
constitutionally protected First Amendment activities, he failed to show that
he had been transferred in retaliation for writing them, when his "poor
behavior," including three acts of misconduct, provided a sufficient basis
for his transfer. Jerry v. Williamson, No. 06-1606, 2006 U.S. App. Lexis 31325
(3rd Cir.). [N/R]
A federal prisoner's First Amendment rights were
not violated by an increase in the long-distance telephone rates at federal
prisons. Prisoners had no right to any specific rate for their phone services.
Court also rejects equal protection claims since there was no showing that the
plaintiff was treated differently than other prisoners, or that there was a
discriminatory purpose for the difference in rates between international and
domestic long distance rates charged. Harrison v. Federal Bureau of Prisons,
No. 1:06cv1182, 2006 U.S. Dist. Lexis 90646 (E.D. Va.). [N/R]
Prison officials failed to show a rational
relationship between rehabilitative goals for the plaintiff prisoner and
actions denying him access to eight specific publications withheld under a
federal statute and regulations, the Ensign Amendment, 28 U.S.C. Sec.
530C(b)(6) and 28 C.F.R. Sec. 540.72 prohibiting the use of prison funds to
distribute commercial materials featuring nudity or which were sexually
explicit. Prisoner could proceed with his lawsuit challenging the
constitutionality of the statute and regulations under the First Amendment.
Jordan v. Sosa, No. 05-CV-01283, 2006 U.S. Dist. Lexis 82037 (D. Colo.). [N/R]
Evidence showed that prisoner's property was not
destroyed in retaliation for his filing of a grievance over it being
confiscation, but instead because prison officials believed it to be
contraband. Buehl v. Beard, No. 03-1313, 2006 U.S. Dist. Lexis 68642 (W.D.
Pa.). [N/R]
Publisher of periodical with articles about
prison legal issues, largely written by prisoners, failed to show that it
suffered a constitutional injury from a Florida Department of Corrections
regulation barring inmates from receiving pay for their writing to pursue a
federal civil rights claim under the First Amendment. It failed to show, for
instance, that the regulation had any impact on its ability to continue to
publish the periodical. Prison Legal News v. Decker, No. 05-14738, 2006 U.S.
App. Lexis 25377 (11th Cir.). [N/R]
Prisoner stated a viable claim for violation of
his First Amendment rights in alleging that a correctional officer filed a
baseless disciplinary charge against him in retaliation for his having supplied
an affidavit supporting another inmate's grievance. The fact that the disciplinary
report against the plaintiff prisoner was ultimately withdrawn merely showed
that he was not subjected to greater harm, and did not eliminate his claim
against the officer for initially filing the charge and for refusing to
withdraw it. Zarska v. Higgins, No. 05-3204, 171 Fed. Appx. 255 (10th Cir.
2006). [N/R]
Prison rule barring prisoners from talking to
each other while in the dining hall did not violate their rights to free
speech, due process of law, or constitute cruel and unusual punishment. Hendrickson
v. McCreanor, #05-4340, 2006 U.S. App. Lexis 24906 (3rd Cir.). [2006 JB Nov]
Prison officials were entitled to qualified
immunity in former prisoner's lawsuit claiming that they improperly restricted
his ability to subscribe to certain newspaper, magazine, and newsletter
publications based on his classification status, which was based on his
behavior, as their actions did not violate any clearly established right. Calia
v. Weholtz, No. 05-3201, 426 F. Supp. 2d 1210 (D. Kan. 2006). [N/R]
Prisoner stated a valid claim for retaliation in
violation of his First Amendment rights by alleging that he was intentionally
transferred to a facility lacking rehabilitation programs as punishment for his
having filed a lawsuit challenging the failure of correctional officials to
provide him with rehabilitation programs ordered by a court for treatment of
psychological and psychiatric problems. The claim did not challenge the
defendants' right, in general, to transfer the prisoner, but rather asserted
that they did so, in this instance, for an improper motive. Price v. Wall, No.
Civ. A. 05-3898, 428 F. Supp. 2d 52 (D.R.I. 2006). [N/R]
Prisoner's allegation that a federal correctional
officer retaliated against him for his intention to file a grievance against
him by taking actions leading to the prisoner's administrative segregation
stated a viable claim for violation of the First Amendment. Johnson v.
Sadzewicz, No. 05-71083, 426 F. Supp. 2d 635 (E.D. Mich. 2006). [N/R]
New Jersey failed to show that it had a
reasonable basis, related to prison safety and security, in opening prisoners'
legal mail outside of their presence. Inmates have a First Amendment interest
in being present when incoming legal mail is opened by prison employees. Terrorist
attacks of 9/11/2001, and incidents that fall of transmission of anthrax
through the mail were not sufficient, years later, to support the continuation
of a policy adopted as an emergency procedure. Jones v. Brown, No. 03-3823,
04-4426, 2006 U.S. App. Lexis 21601 (3d Cir.).[2006 JP Oct]
Jail guard's speech on alleged abuse of inmates
was on a matter of public concern, protected by the First Amendment, and there
were factual issues as to whether he was subjected to harassment in retaliation
for exercising that First Amendment right. Fairley v. Andrews, No. 03C5207, 430
F. Supp. 2d 786 (N.D. Ill. 2006). [N/R]
Muslim prisoner who claimed he suffered
retaliation from prison officials for complaining about alleged religious
discrimination failed to show that the alleged "retaliation" resulted
in any harm, barring his claim. Court further finds that the prisoner's
employment by the California Prison Industry Authority did not make him an
"employee" for purposes of a Title VII claim under the Civil Rights
Act of 1964, 42 U.S.C. Sec. 2000e. Wade v. Cal. Dept. of Corrections, No.
05-15653, 171 Fed. Appx. 601 (9th Cir. 2006). [N/R]
Pennsylvania prisoner failed to present evidence
from which a reasonable jury could conclude that he was fired from his prison
kitchen job in retaliation for having filed grievances against his supervisor.
The evidence showed that complaints about his work performance were present
before he filed any grievances. Williams v. Meyers, No. 03-3938, 165 Fed. Appx.
201 (3rd Cir. 2006). [N/R]
U.S. Supreme Court overturns an appeals court
decision that a prison policy forbidding certain very dangerous and
"recalcitrant" prisoners access to newspapers, magazines, and
photographs violated the First Amendment as a matter of law. Policy was
justified by prison officials' legitimate interest in providing such prisoners
with incentives for improvement of their behavior. Beard v. Banks, No. 04-1739
2006 U.S. Lexis 5176. [2006 JB Aug]
North Dakota state prison rules prohibiting inmates
from possessing property, such as religious magazines, received from other
prisoners, and classifying such "passed-on" property as contraband,
upheld as reasonable. Larson v. Schuetzle, No. 20050418, 712 N.W.2d 617 (N.D.
2006). [2006 JB Aug]
Prisoner claiming that he was improperly
retaliated against by being falsely disciplined for having written a letter and
filed a prior lawsuit against prison staff members was not required to
"establish" either the legal or factual elements of his claim in his
complaint, but merely say enough to provide the defendants with adequate notice
of his claim. Prisoner's federal civil rights lawsuit was not barred by
finding, by prison disciplinary board, that his statements in his prior letter
and lawsuit were false. Simpson v. Nickel, No. 05-4686, 450 F.3d 303 (7th Cir.
2006). [2006 JB Aug]
In a prisoner's lawsuit claiming that prison
officials violated his First Amendment rights by refusing to allow him to
organize an atheist study group, federal trial court finds that defendant
officials were entitled to qualified immunity from liability for damages since
it was not clearly established at the time of the denial, 2002, that atheism
was a "religion," and the prisoner did not tell the defendants that he
was a member of any non-theistic belief system, such as secular humanism, which
had previously been held to be protected by the First Amendment's free exercise
of religion clause. Kaufman v. McCaughtry, No. 03-C-027, 422 F. Supp. 2d 1016
(W.D. Wis. 2006). [N/R]
The decision by a prison nurse to place a
prisoner in four-point restraint was not shown to be retaliation for his prior
lawsuits against other prison personnel, when there was no evidence that the
nurse even knew of those lawsuits, and she was not named as a defendant in a
lawsuit until after the incident. Ziemba v. Clark, No. 05-1613, 167 Fed. Appx.
831 (2nd Cir. 2006). [N/R]
First Amendment challenge by a class of prisoners
to a federal Bureau of Prisons program statement and institutional policy
barring the showing of unedited R-rated movies to inmates rejected. The
prohibition was rationally related to legitimate governmental interests in
promoting the rehabilitation of prisoners. Prisoners had adequate alternative
means to exercise their First Amendment rights, including access to G, PG, and
PG-13 rated films, as well as R-rated films that had been edited for
television. Jewell v. Gonzales, No. 97-408, 420 F. Supp. 2d 406 (W.D. Pa.
2006). [N/R]
Prisoner's allegation that he was transferred to
a less desirable job assignment in retaliation for filing grievances was
insufficient to show a violation of his First Amendment rights, but his
assertion, if true, that he was transferred to an inferior and more dangerous
prison for retaliatory reasons did state a claim. Morris v. Powell, No.
05-40578, 2006 U.S. App. Lexis 12033 (5th Cir.). [2006 JB Jul]
Prison officials, in preventing inmate from
mailing out a copy of an internal investigation report concerning his escape
attempt, violated his First Amendment rights, when the report had been properly
obtained through discovery in a criminal case, and was available to the public
in the court files of both the criminal prosecution and the prisoner's civil
rights lawsuit. Arnett v. Markel, No. 5-04-0082, 845 N.E.2d 752 (Ill. App.
2006). [2006 JB Jul]
Federal appeals court allows class action
challenging conditions of confinement for civilly committed "Violent
Predators" in California to proceed on most claims, including claims
involving procedural and substantive due process, privacy, excessive force,
access to courts, unlawful retaliation for grievances or lawsuits, and forced
medication in non-emergency situations. Hydrick v. Hunter, No. 03-56712, 2006
U.S. App. Lexis 13497 (9th Cir.). [2006 JB Jul]
Designation of prisoner as someone associated
with a gang, which kept him in a secure unit, did not violate his First
Amendment rights of freedom of association nor his procedural due process
rights under the Fourteenth Amendment. Adequate due process was provided by
notice of his impending "gang validation," together with an
interview. Photographs of prisoner posing with other inmates, some of whom were
already validated gang associates and one of whom was a validated gang member provided
sufficient evidence for his designation. Stewart v. Alameida, No. C-03-4021,
418 F. Supp. 2d 1154 (N.D. Cal. 2006). [N/R]
Prisoner failed to show that a search of his cell
and the confiscation of legal papers he possessed which belonged to other
prisoners was unlawful retaliation for his exercise of his First Amendment
rights in issuing a subpoena to the prison warden in a pending case. Peterson
v. Lucero, No. 04-2318, 165 Fed. Appx. 657 (10th Cir. 2006). [N/R]
Prisoner failed to establish a valid claim for
racial discrimination. While he filed grievances stating that "racism is
prevailing" at the correctional facility, and accusing white employees of
being "racist" and "hateful," he failed to allege that he
had suffered any "specific hardships" as a result of such racism. He
also failed to show that he had been punished for prior lawsuits and grievances
or that an officer filed false disciplinary reports against him, in violation
of his First Amendment rights. Jackson v. Madery, No. 04-1805, 158 Fed. Appx.
656 (6th Cir. 2005). [N/R]
Requirement that prisoner's exhaust available
administrative remedies before filing a lawsuit over prison conditions applies
to a claim by a prisoner in a privately run prisoner over the alleged
confiscation of several magazines by a prison employee. Roles v. Maddox, No.
04-35280, 2006 U.S. App. Lexis 5037 (9th Cir.). [2006 JB Apr]
Wisconsin prison properly barred inmate from
possessing books he claimed were essential for the practice of his
"Odinist" religion, when they were found to advocate white
supremacist violence. Borzych v. Frank, No. 05-3907, 2006 U.S. App. Lexis 5278
(7th Cir.). [2006 JB Apr]
First Amendment right of prisoners to receive gift
publications was not "clearly established" in the middle of 2000,
when a Kansas state prison rule barred such receipt, so that prison officials
were entitled to qualified immunity from damages in lawsuit filed by inmates
and the non-profit publisher of a periodical focusing on legal issues of
interest to prisoners. Prison Legal News, Inc. v. Simmons, No. 02-4054, 401 F.
Supp. 1181 (D. Kan. 2005). [N/R]
Texas prisoner stated a viable claim of unlawful
retaliation against correctional officer who allegedly repeatedly harassed and
threatened him with physical abuse for refusal to work as a prison informant,
and for failing to supply the names of prison employees allegedly involved in
drug trafficking. David v. Hill, No. C.A.C-04-673, 401 F. Supp. 2d 749 (S.D.
Tex. 2005). [N/R]
A prison's complete ban on all mail between a
prisoner and his attorney-friend, based on the prisoner being suspected of
engaging in a prohibited paralegal business with the friend was overbroad and
risked chilling the prisoner's access to the courts and counsel. A preliminary
injunction against the ban was therefore granted. Evans v. Vare, No.
3:05-CV-3CR, 402 F. Supp. 2d 1188 (D. Nev. 2005). [N/R]
Censorship of a prisoner's outgoing mail under a
Wisconsin regulation on the basis that it was believed to contain
"encoded" references to gang activities did not violate his free
speech rights. Koutnik v. Brown, No. 04-C-911, 396 F. Supp. 2d 978 (W.D. Wis.
2005). [N/R]
Male prisoner's claim that female guard made him
strip naked and masturbate for her enjoyment, if true, was a violation of his
privacy rights, but not "cruel and unusual punishment," since he only
suffered minimal injury. Prisoner also claimed he was retaliated against for
complaining about this treatment, in violation of his First Amendment rights.
Boxer X v. Harris, No. 04-13083, 2006 U.S. App. Lexis 2008 (11th Cir.). [2006
JB Mar]
Correctional officer's alleged conduct of
repeatedly groping or caressing a prisoner's chest, genitals and buttocks
during a pat search, if true, constituted a sexual assault which would violate
the Eighth Amendment, so that he was not entitled to qualified immunity.
Further, the officer's alleged retaliation against the prisoner for complaining
by planting evidence against him and filing a misbehavior report against him,
if true, would violate the prisoner's First Amendment rights. Rodriguez v.
McClenning, No. 03 Civ. 5269, 399 F. Supp. 2d 228 (S.D.N.Y. 2005). [N/R]
Prisoner failed to show that he was reassigned
from a boiler-room job to a "hoe" squad and forced to work in dirty
clothes and in cold weather in retaliation for his filing of grievances and
complaints. The evidence showed, the court ruled, that he was actually
reassigned for legitimate reasons, including the prisoner's connections to
white supremacist groups and the risk of escape posed by his prior escape from
another facility. Breshears v. Brown, No. 04-41749 150 Fed. Appx. 323 (5th Cir.
2005). [N/R]
If, as former Illinois prison warden claimed, she had
no policymaking function and no discretionary authority, then her alleged
termination based on her Republican political affiliation would demonstrate the
violation of her clearly established First Amendment rights. Appeals court
rejects, however, plaintiff's due process claim as she had no constitutionally
protected property interest in continued employment as a state prison warden.
Kiddy-Brown v. Blagojevich, No. 04-2283, 408 F.3d 346 (7th Cir. 2005). [N/R]
Pennsylvania Supreme Court upholds
constitutionality of regulations prohibiting prisoners from receiving incoming
publications found to be obscene, as well as of statute criminalizing the
importation of such publication into prisons or their possession by prisoners.
Inmates' lawsuit challenged the withholding of Penthouse magazine and several
others available to the general adult public. Payne v. Commonwealth Dept. of
Corrections, J-83-2004, 871 A.2d 795 (Pa. 2005). [2005 JB Dec]
Prisoner was properly excluded from attendance at
religious ceremony which was attended by Catholic Cardinal and the Governor of New
York, and placed in administrative segregation during the event. Prisoner had
expressed hostility towards the Cardinal, and announced his intention of
attending the ceremony despite his exclusion and "confronting" the
Cardinal for failing to assist him in challenging his conviction. Prison
officials' actions did not violate his First Amendment rights. Gonzalez v.
Narcato, No. 01CV6102, 363 F. Supp. 2d 486 (E.D.N.Y. 2005). [2005 JB Dec]
Correctional officer was properly denied summary
judgment on prisoner's claim that he had him transferred to another facility in
retaliation for his complaint about the officer to his supervisors concerning
the officer's alleged refusal to authorize the payment of funds from the
prisoner's account to pay his lawyer for work in connection with his criminal
appeal. If true, this would be violative of his First Amendment right of access
to the courts. Siggers-El v. Barlow, No. 03-2291, 412 F.3d 693 (6th Cir. 2005).
[2005 JB Nov]
Plaintiff assistant wardens of Illinois state
prisons are policymaking officials and therefore can be fired by the governor
on the basis of their political affiliation. Riley v. Blagojevich, 04-3085,
2005 U.S. App. Lexis 20631 (7th Cir.). [2005 JB Nov]
Gang members had no First Amendment right to
belong to gangs, so their transfer to the "highest security" prison
in Illinois, even if in "retaliation" for gang activity, was not
improper. Federal appeals court reinstates, however, claims concerning whether
adequate due process was provided for prisoners transferred there, and whether
certain prisoners were transferred in retaliation for having pursued grievances
and/or litigation concerning their conditions of confinement. Westefer v.
Snyder, No. 03-3318, 2005 U.S. App. Lexis 19217 (7th Cir.). [2005 JB Oct]
Trial court improperly dismissed prisoner's
lawsuit against probation officer claiming that his placement in a detention
facility was a violation of his rights when there were court orders requiring
that he be placed in a halfway house for his alleged probation violation. The
lawsuit was not barred by the rule in Heck v. Humphrey, No. 93-6188, 512 U.S.
477 (1994) when it only challenged his confinement in one facility instead of
another, and did not challenge either the duration or fact of his confinement.
Taylor v. U.S. Probation Office, No. 03-5370, 409 F.3d 426 (D.C. Cir. 2005).
[N/R]
Requiring prisoner who had filed numerous
frivolous grievances to have his grievances screened by a grievance coordinator
for frivolousness before allowing them to be filed did not violate his First
Amendment rights or deny him access to the courts. No constitutional right to
"unfettered access" to prison grievance process. Walker v. Michigan
Department of Corrections, #04-1347, 128 Fed. Appx. 441 (6th Cir. 2005). [2005
JB Sep]
Prisoner's lawsuit against federal prison warden
reinstated on claims that his rights were violated by prohibition on him
calling his stockbroker to order that stock be sold if the price started
falling. Prisoner also stated a viable First Amendment claim based on refusal
to allow him to buy a book on computer programming. King v. Fed. Bureau of
Prisons, No. 03-2431, 2005 U.S. App. Lexis 14092 (7th Cir.). [2005 JB Sep]
Prisoner's claim for alleged mental anguish and emotional
distress arising out of a dispute with correctional officials over the alleged
retaliatory withholding of two pornographic magazines by the prison mail
personnel could not be pursued, in the absence of physical injury under the
Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e). He claimed that the
retaliation occurred because he filed a previously lawsuit against prison
employees. Geiger v. Jowers, No. 04-10299, 404 F.3d 371 (5th Cir. 2005). [N/R]
California prison regulation barring inmates from
possessing sexually explicit materials does not violate either the U.S. or
California Constitutions or a state statute. Snow v. Woodford, No. D043702,
2005 Cal. App. Lexis 565 (Cal. App. 4th Dist. 2005). [2005 JB Jun]
Prisoner's question to work supervisor concerning
pay for prisoners laid off from prison sewing shop was not speech on a matter
of public concern for which he had First Amendment protection against
retaliatory action. McElroy v. Lopac, No. 03-3257, 2005 U.S. App. Lexis 5611
(7th Cir.). [2005 JB Jun]
Prison policy that barred prisoners placed in
long term security unit based on their past behavior from possessing any
newspapers or magazines except for religious or legal publications, and that
further barred possession of family photos, was subject to First Amendment
challenge. Appeals court panel overturns trial court decision upholding policy
without trial. Banks v. Beard, No. 03-1245, 399 F.3d 134 (3d Cir. 2005) [2005
JB Jun]
Even if a letter from a legal advocacy group (the
"Innocence Project of Minnesota") to a prisoner was protected as
"legal mail," the alleged mistaken opening of the letter outside of
the presence of the prisoner was not a violation of his First Amendment rights
since it was an isolated incident and did not interfere with his right of
access to the courts. The prison employee opening it believed that the group
who sent the letter did not qualify as a legal advocacy group. Additionally,
correspondence from a city police department and the North Dakota Department of
Corrections was not constitutionally protected legal mail. Moore v. Schuetzle,
No. A4-01-038, 354 F. Supp. 2d 1065 (D.N.D. 2005). [N/R]
Prison officials could not punish an inmate for
writing a letter to a private company informing them of what he believed to be
an illegal program planned at the prison which would damage its business as a
supplier to the facility. The statements, while critical or unflattering, did
not damage institutional security, and punishing him for their content would
violate the First Amendment. Gandy v. Ortiz, No. 04-1225, 122 Fed. Appx. 421
(10th Cir. 2005). [2005 JB May]
Prisoner's federal civil rights lawsuit
challenging his discipline as a violation of his First Amendment rights should
not have been dismissed for failure to exhaust available administrative
remedies. Federal appeals court rules that he did exhaust his administrative
remedies when his appeal of his denied grievance was rejected as untimely. The
Prison Litigation Reform Act's exhaustion requirement, the court holds, does
not bar consideration of a prisoner's claims when his administrative appeal was
denied on state law procedural grounds. Ngo v. Woodford, No. 03-16042, 2005
U.S. App. Lexis 4809 (9th Cir. 2005). [2005 JB May]
State prison's policy of opening and inspecting
prisoners' legal mail outside their presence in order to detect presence of
contraband, particularly anthrax, was a violation of their First Amendment
rights, but defendant officials were entitled to qualified immunity. Because of
the "uncertainties" created by terrorist attacks on September 11,
2001, reasonable prison officials could have been unclear about the fact that
their conduct violated the prisoners' rights. Allah v. Brown, No. CIV. 02-5298,
351 F. Supp. 2d 278 (D.N.J. 2004).[N/R]
Ban on non-subscription bulk mail and catalogs
was not rationally related to a legitimate penological interest and therefore
violated the First Amendment, but correctional officials were entitled to
qualified immunity. Prison Legal News v. Lehman, No. 03-35608, 397 F.3d 692
(9th Cir. 2005) [2005 JB Apr]
California State Department of Corrections
administrative bulletin banning sexually explicit materials depicting frontal
nudity did not violate a prisoner's First Amendment rights. Correctional
officials properly sought to reduce sexual harassment of female guards and
prevent the development of a hostile work environment and also enhance prison
security. Further, depriving prisoners of such sexually explicit materials did
not impose an "atypical and significant hardship" in relation to the
"ordinary incidents of prison life," and was therefore not a
violation of due process. Additionally, the prisoner did not successfully show
a violation of equal protection rights, as he did not claim that he was treated
any differently than similarly situated prisoners with respect to the
possession of such materials. Munro v. Tristan, No. 03-16770, 116 Fed. Appx.
820 (9th Cir. 2004). [N/R]
New Jersey correctional officials could not
implement new regulations eliminating the requirement of the presence of an
emergency cart with medical equipment and supplies at the scene of
executions--for the purpose of reviving the inmate in the event of last minute
stays--without providing an explanation of its reasoning. Defendant officials
were required to present "strong" medical evidence that the effects
of the lethal injections used were irreversible. Officials would also be
required to show how new restrictions on media access to and filming of
executions were justified by legitimate penological, safety, and security
concerns. In Re. Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. A.D.
2004). [N/R]
Prisoner's First Amendment rights were not
violated by denying him receipt and possession of a racist magazine, Pagan
Revival, which the inmate himself admitted contained "hatred."
Censoring such publications, a federal appeals court held, was reasonably
related to legitimate penological interests in institutional order and
security. Lindell v. McCaughtry, No. 03-4094, 115 Fed. Appx. 872 (7th Cir.
2004). [N/R]
Prison rule prohibiting the spreading of
"rumors" about prison staff members was unconstitutionally vague and
was improperly used to punish a prisoner for communicating the contents of his
grievance to his mother, who subsequently advertised its contents on the
Internet in order to seek legal counsel for him. Cassels v. Stalder, No.
CIV.A.03-0709-D-M2, 342 F. Supp. 2d 555 (M.D. La. 2004). [2005 JB Mar]
A prisoner's First Amendment claims are not
excluded from the requirement in the Prison Litigation Reform Act, 42 U.S.C.
Sec. 1997e(e) prohibiting claims for mental or emotional injury in the absence
of a showing of physical injury. That rule, however, while barring the
plaintiff's claims for emotion or mental injury from alleged retaliation in
violation of his First Amendment rights did not bar claims for nominal,
compensatory, and punitive damages for the violation of his rights. Meade v.
Plummer, No. 99-CV-10011, 344 F. Supp. 2d 569 (E.D. Mich. 2004). [N/R]
Notifying only the prisoner, and not the
publisher, when a periodical was not delivered to a prisoner, was inadequate to
protect the publisher's First Amendment rights. Federal appeals court also
orders further proceedings on constitutionality of policies limiting inmates'
monthly spending on publications to $30 and prohibiting gift subscriptions.
Jacklovich v. Simmons, #03-3227, 2004 U.S. App. Lexis 26550 (10th Cir. 2004).
[2005 JB Feb]
Iowa prisoner's claim that a correctional officer
wrote a false misconduct report concerning his behavior in retaliation for his
announced intention to file a grievance against him, and did so for the purpose
of preventing the processing of the grievance, stated a claim for violation of
First Amendment rights, so that dismissal of the claim was not warranted under
28 U.S.C. Sec. 1915(e)(2)(B). Hartsfield v. Department of Corrections, No.
04-1311, 107 Fed. Appx. 695 (8th Cir. 2004). [N/R]
Factual issues existed as to whether prison
officials who transferred prisoner to administrative segregation after a
behavior modification unit program was discontinued were motivated by a desire
to retaliate against him for filing grievances, in violation of his First
Amendment rights. Summary judgment was therefore properly denied to the
defendants in the prisoner's lawsuit. Lodatao v. Ortiz, No. CIV.A. 02-2803, 314
F. Supp. 2d 379 (D.N.J. 2004). [N/R]
Prisoner stated a viable First Amendment claim
when "New Afrikan" political literature confiscated from him was not
subjected to established procedures for individualized review of reading
materials, and he was instead punished on the basis that the literature
originated from a group not "approved" by correctional officials.
Shakur v. Selsky, No. 03-0050, 2004 U.S. App. Lexis 24999 (2nd Cir. 2004).
[2005 JB Jan]
Indiana prisoner stated a possible claim for
violation of his First Amendment rights based on claimed confiscation of
anarchist pamphlets from him by correctional officers, but failed to present a
claim for a violation of the Fourth Amendment prohibition against unreasonable
searches and seizures or the Eighth Amendment prohibition of cruel and unusual
punishment. The prisoner also asserted a viable equal protection claim on the
basis of the alleged different treatment of other prisoners with similar
political materials in their possession. Smith v. Carrasco, No. 3:04-CV-0010
AS, 334 F. Supp. 2d 1094 (N.D. Ind. 2004). [N/R]
Prisoner's allegations that officers confiscated
and destroyed his property, threatened to transfer him, and assaulted him in
retaliation for his filing of grievances were sufficient to state a claim for
violation of his First Amendment rights. Appeals court rejects the "Catch
22" argument that no claim was stated because the prisoner was undeterred
by these actions from continuing to assert his First Amendment rights. Rhodes
v. Robinson, No. 03-15335 380 F.3d 1123 (9th Cir. 2004). [2004 JB Dec]
Appeals court orders further proceedings on
prisoner's claim that he was falsely charged and disciplined for misconduct in
retaliation for prior grievances and lawsuits against a correctional officer.
Summary judgment for defendant officer was improper without considering another
inmate's affidavit concerning officer's alleged retaliatory intent, and the
issue of proximity in time between prisoner's exercise of his First Amendment
rights and the alleged retaliatory action. Muhammed v. Close, #02-1043, 379
F.3d 413 (6th Cir. 2004). [2004 JB Dec]
Prisoner failed to show that his placement in
administrative segregation after he finished a period of disciplinary
segregation was in retaliation for his exercise of his First Amendment rights
in complaining of prison officials' alleged racism. The stated reasons for
placing the prisoner, who had previously been convicted of drug trafficking
activities within the prison, in administrative segregation were within the
scope of established policy. Hall-Bey v. Hanks, No. 02-4050, 93 Fed. Appx. 977
(7th Cir. 2004). [N/R]
Federal appeals court orders further proceedings
on prisoner's claim that the confiscation of his word processor and radio,
after he submitted letters critical of the prison for mailing, were retaliatory
for his exercise of his First Amendment rights. Confiscation, since it was
carried out under the authority of a prison administrative directive, was not a
random, unauthorized action for which the availability of adequate
post-deprivation state remedies would bar a federal due process claim. Allen v.
Thomas, No. 03-21208, 2004 U.S. App. Lexis 20953 (5th Cir. 2004). [2004
JB Nov]
Regulations banning gift subscriptions of
publications to prisoners and limiting their own purchase of such subscriptions
was rationally related to legitimate interests in rehabilitation and
institutional security. Rice v. State of Kansas, No. 89,759, 95 P.3d 994 (Kan.
2004). [2004 JB Nov]
While prisoner successfully proved that prison
security director improperly put him in segregation in retaliation for filing
"too many" complaints and grievances, in violation of his First
Amendment rights, under the Prison Litigation Reform Act, he was not entitled
to an award of compensatory damages in the absence of physical injury, but only
$1 in nominal damages. Appeals court also upholds the decision not to award
punitive damages, since the defendant acted out of "frustration,"
rather than with an "evil motive," and upholds application of PLRA
section to limit attorneys' fee award in the case to $1.50. Royal v. Kautzky,
No. 02-3446, 375 F.3d 720 (8th Cir. 2004). [2004 JB Oct]
Federal appeals court rules that trial judge
lacked an adequate factual basis to find that a ban by Congress on the use of
federal funds to distribute sexually explicit publications to prisoners was
"reasonably related" to a legitimate governmental interest in
rehabilitation. Ramirez v. Pugh, No. 02-2101, 2004 U.S. App. Lexis 16619 (3d
Cir. 2004). [2004 JB Oct]
Alabama prisoner could not pursue declaratory
judgment action for the purpose of obtaining a determination that a program
allowing inmates to view movie videos they were allowed to borrow from a
correctional facility library as an incentive for good behavior does not
violate federal copyright law. The correctional facility discontinued the
program because of a concern that it might violate copyright law. The court
found that the prisoner suffered no "injury" from the suspension of
the program giving him standing to pursue the claim, and the possibility that
the program violated copyright laws did not subject the prisoner himself to any
possible litigation, nor did he himself have any interest in the copyrights of
the movies in question. Lane v. Sticker, No. 2011161, 876 So. 2d 469 (Ala. Civ.
App. 2003). [N/R]
Prison guard was not entitled to qualified immunity
on the claim that he filed a false misconduct ticket against a prisoner in
retaliation for his "jailhouse lawyering" activity. Law prohibiting
such retaliation for exercise of First Amendment rights was clearly
established. Scott v. Churchill, No. 03-2427, 2004 U.S. App. Lexis 15269 (6th
Cir.). [2004 JB Sep]
Federal appeals court overturns dismissal of
prisoner's claim that confiscation of picture postcards from his cell might be
violative of his First Amendment rights, in light of lack of evidence of the
purported justification for the action. Injunction against policy preventing
prisoner from receiving clippings from periodical from a correspondent upheld,
but modified to clarify that the facility could still impose reasonable
restrictions on the form and number of such clippings. Lindell v. Litscher, No.
03-2651, 2004 U.S. App. Lexis 14833 (7th Cir.). [2004 JB Sep]
Correctional policy denying a sex-offender
contact visits with minors, including family members, did not violate his First
Amendment right to freedom of association, and was rationally related to
legitimate interests in promoting institutional security and the safety of
children. Garber v. Pennsylvania Department of Corrections Secretary, 851 A.2d
222 (Pa. Cmwlth. 2004). [2004 JB Sep]
State correctional officers were not entitled to
a preliminary injunction against discipline of them for associating with
Outlaws Motorcycle Club, a group alleged to be a criminal gang. The directive
prohibiting officers from conduct constituting or giving rise to the appearance
of conflict of interest, engaging in unprofessional or illegal behavior that
could reflect negatively on the Department, and acting in ways jeopardizing
institutional security or the health, safety, or welfare of the staff or
inmates, which was the basis for the discipline, was not overbroad under the
First Amendment. Piscottano v. Murphy, 317 F. Supp. 2d 97 (D. Conn. 2004).
[N/R]
New York prisoner's claim that correctional
employees deliberated tampered with his mail, including both incoming and
outgoing legal, personal, and political mail, without cause or justification,
adequately asserted a claim for violation of his First Amendment rights. Nash
v. McGinnis, 315 F. Supp. 2d 318 (W.D.N.Y. 2004). [N/R]
Prisoner in psychiatric housing unit asserted a
valid claim for unlawful retaliation against him for reporting that a
correctional officer exposed his penis to him and made vulgar remarks, and then
falsely accused him of misconduct after he refused to refrain from reporting
the incident. Austin v. Terhune, #02-16546, 367 F.3d 1167 (9th Cir. 2004).
[2004 JB Aug]
Former prisoner could pursue claims for nominal
damages for alleged violations of his First Amendment rights while incarcerated
despite provision in Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e)
preventing him from pursing claims for compensatory damages in the absence of
physical injury. Further, the fact that the prisoner had been released did not
make his claim moot, as nominal damages are past damages. McDaniels v. McKinna,
#03-1231, 96 Fed. Appx. 575 (10th Cir. 2004). [N/R]
Prisoner's inclusion of a false and irrelevant
"rumor" concerning the sexual conduct of a female guard in a
grievance he filed against her for allegedly failing to inform him that it was
time to eat was not protected speech under the First Amendment. Hale v. Scott,
#03-1949, 2004 U.S. App. Lexis 11581 (7th Cir. 2004).[2004 JB Jul]
Correctional officers were not entitled to
qualified immunity from excessive force claim by previously brain-damaged
pre-trial detainee who they allegedly caused severe facial and head injuries in
the course of a struggle to apply restraints to his wrists after he refused to
get on the water-covered floor of his cell. Detainee's behavior of banging on
cell walls and doors and tossing toilet water around his cell to
"protest" not being allowed out of his cell, however, was not
"protected speech," so that detainee's First Amendment retaliation
claim was dismissed. Simms v. Hardesty, 303 F. Supp. 2d 656 (D.Md. 2003). [N/R]
California prison ban on mail containing
printed-out downloads from the Internet violated the First Amendment. Clement
v. California Department of Corrections, #03-15006, 2004 U.S. App. Lexis 7576
(9th Cir.). [2004 JB Jun]
Texas prisoners, members of the Church of Christ,
did not show that Texas correctional officials violated their rights to
religious freedom by providing a chaplain who they had doctrinal differences
with. Prisoner who allegedly caused a disturbance and walkout by 50 prisoners
at services by reading a statement denouncing the chaplain did not show that he
was unlawfully transferred in retaliation for exercising his First Amendment
rights. Freeman v. Texas Department of Criminal Justice, #03-10443, 2004 U.S.
App. 8998 (5th Cir). [2004 JB Jun]
Prisoner's claim that he was charged with a
disciplinary violation in retaliation for leading a religious group meeting
which discussed whether the group should file a grievance against a prison
employee adequately stated a claim for unlawful retaliation. Samuels v.
Hammond, #03-30589, 78 Fed. Appx. 314 (5th Cir. 2003). [N/R]
Federal court properly rejected prisoner's
federal civil rights claim since the First Amendment rights of inmates to
receive commercial bulk mail was not "clearly established" when he
was refused receipt of a "Green Lantern" comic book, so that prison
officials were entitled to qualified immunity. Court upholds rejection of other
magazines with sexual ads or "role-playing content." Further
proceedings ordered, however, on state law free speech claims. Bahrampour v.
Lamper, #02-3519, 356 F.3d 969 (9th Cir. 2004). [2004 JB May]
Pennsylvania prisoner was not entitled to a
judicial order requiring the state Board of Probation and Parole to grant him
parole. Despite his claim that a sentencing judge and prosecutor sent
unfavorable recommendations to the Board in retaliation for his filing of a
successful federal habeas petition, the Board followed established procedures
in denying parole, and the denial was justified by the reasons given. Burkett
v. Frank, 841 A.2d 646 (Pa. Cmwth. 2004). [N/R]
Federal appeals court reinstates prisoner's claim
that he was determined to be a prison gang member in retaliation for his
jailhouse lawyering activity in pursuing grievances on behalf of himself and
other inmates, in violation of his First Amendment rights. Evidence used had
been found insufficient during two prior investigations of suspected gang
affiliation. Bruce v. Ylst, #01-17527, 351 F.3d 1283 (9th Cir. 2003). [2004 JB
Mar]
Federal appeals court rules that prison's
requirement that books received from vendors have special shipping labels
attached or else not be delivered to prisoners unduly burdened inmates' First
Amendment rights. Policy was unreasonable and arbitrary, as it was applied to
packages of books and other publications but not to other packages that could
just as easily contain contraband. Ashker v. California Department of
Corrections, #02-17077, 350 F.3d 917 (9th Cir. 2003). [2004 JB Mar]
Wisconsin prisoner failed to show that transfer
to another facility was a violation of his First Amendment rights and
retaliatory for his participation in prior lawsuits against prison employees,
as there was no evidence that those who authorized the transfer knew of these
prior lawsuits. Johnson v. Kingston, 292 F. Supp. 2d 1146 (W.D. Wis. 2003).
[N/R]
Prison security and rehabilitation goals were not
sufficient to justify a complete ban on gifts of periodicals to prisoners. Rice
v. State of Kansas, No, 89,759, 76 P.3d 1048 (Kan. App. 2003). [2004
JB Feb]
Trial court improperly dismissed prisoner's
lawsuit claiming that prison officials violated his First Amendment and due
process rights by transferring him to administrative segregation in a special
housing unit after his appeal of his rule violation resulted in an order for a
new hearing. Jackson v. Carey, No. 01-17126, 2003 U.S. App. LEXIS 26264, (9th
Cir. 2003).[2004 JB Feb]
Barring prisoners from making phone calls in languages
other than English without prior authorization is not a violation of First
Amendment rights. Boriboune v. Litscher, No. 03-1747 , 2003 U.S. App. Lexis
26540 (7th Cir.). [2004 JB Feb]
Prisoner could not assert a claim for denial of
access to the courts based on refusal to allow him to visit the law library, in
the absence of a showing of actual injury in a pending case. He could still
pursue, however, his claim that he was denied access to legal materials in
retaliation for filing grievances, since he had alleged a "chronology of
events from which retaliation may plausibly be inferred." Westbrook v.
Treon, #03-10004, 78 Fed. Appx. 970 (5th Cir. 2003). [N/R]
Prison officials actions in preventing an
inmate from corresponding with a former prisoner with whom he had formed a
romantic attachment did not violate his rights. Nasir v. Morgan, #01-2519 ,
2003 U.S. App. Lexis 24013, 350 F.3d 366 (3rd Cir.) [2004 JB Jan]
Correctional rule barring prison employees
from non-work-related contact with prisoners, parolees, probationers, and their
relatives and visitors did not violate employees' rights. Akers v. McGinnis,
#01-18, 2003 U.S. App. Lexis 24155, 352 F.3d 1031 (6th Cir.). [2004
JB Jan]
Trial court improperly granted defendant
correctional officials' motion for summary judgment on prisoner's claim that
they retaliated against him for having successfully settled a prior lawsuit
against correctional officers by transferring him to a maximum security
facility and imposing discipline upon him. There was a genuine issue of
material fact as to whether such retaliation was a "substantial
factor" in the actions taken. Bennett v. Goord, No. 01-0184, 343 F.3d 133
(2nd Cir. 2003). [N/R]
Prisoner's failure to exhaust available
administrative remedies for the alleged confiscation of his property required
the dismissal without prejudice of his federal civil rights claim alleging that
the seizure of his sexually explicit materials violated his First Amendment
rights. McMillian v. Litscher, No. 99-3029, 72 Fed. Appx. 438 (7th Cir. 2003).
[N/R]
Correctional officers accused of retaliation
against prisoner for supporting another inmate's excessive force claim by
pursuing disciplinary charges against prisoner would not be liable for
violation of his First Amendment rights if they could demonstrate "dual
motivation," showing that even without their "improper"
motivation, the prisoner would have been subjected to the same actions. Scott
v. Coughlin, #99-0365, 344 F.3d 282 (2nd Cir. 2003). [2003 JB Dec]
Refusal of West Virginia prison officials
to allow prisoner to receive or possess certain books found to be obscene did
not violate his First Amendment or due process rights. Policy applied advanced legitimate
penological interests in security and rehabilitation. Cline v. Fox, 266 F.
Supp. 2d 489 (N.D.W. Va. 2003). [2003 JB Nov]
Federal court strikes down as unconstitutional
Arizona statute prohibiting prisoners from communicating with Internet websites
through the mails or otherwise or receiving mail from them. Court finds that
prohibition is not reasonably related to a legitimate penological purpose and
that other statutes and policies already prohibit communication involving
fraud, harassment of victims, communication with minors, and other purported
purposes of the ban on communication with Internet service providers. Canadian
Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz.
2003). [2003 JB Nov]
African-American prisoner's claim that parole
board chairman improperly made threats against him in violation of his First
Amendment rights and constituting racial discrimination seven years before his
parole was revoked was untimely and barred by the statute of limitations.
Norwood v. Michigan Department of Corrections, No. 02-1779, 67 Fed. Appx. 286
(6th Cir. 2003). [N/R]
Prisoner could pursue claims against some nurses
for alleged inadequate medical care and retaliation against him for filing of
an earlier lawsuit, but not against one nurse against whom he had failed to
exhaust available administrative remedies concerning retaliation claim. The
prisoner's grievance only had to allege misconduct by the nurses and did not
need to plead all the elements of a particular legal theory. Burton v. Jones,
No. 01-1078, 321 F.3d 569 (6th Cir. 2003). [2003 JB Oct]
Prisoner could state a claim for retaliatory
transfer for having filed a grievance against an officer based on a sequence of
events from which a retaliatory motive could be inferred, without proving
motivation in the complaint. Illinois prisoner had a protected liberty interest
in continued participation in work release program which could not be ended
without due process. Segreti v. Gillen, 259 F. Supp. 2d 733 (N.D. Ill. 2003).
[2003 JB Oct]
Prison policies prohibiting the receipt of free
or gift subscriptions to publications, preventing some inmates in a lower
offender classification from purchasing publications, and limiting other
inmates to spending no more than $30 per month to purchase publications did not
violate prisoners' First Amendment or due process rights and were rationally
related to legitimate interests in controlling, managing, and tracking property
in order to identify prohibited activities, promote institutional order through
privileges and incentives, and making sure there were sufficient assets to
collect inmates' other financial obligations, such as restitution and child
support. Failure to notify publishers when prisoners were denied receipt of
mailed publications did not violate the publishers' constitutional due process
rights. Zimmerman v. Simmons, 260 F. Supp. 2d 1077 (D. Kan. 2003). [N/R]
Prisoner's discipline for stating in a filed
grievance that a female correctional officer was rumored to be having sex with
male correctional officers did not violate his First Amendment rights. The
manner in which the statement was made insinuated that the statement was true
and the prisoner had no actual evidence as to the truth of the rumor. Hale v.
Scott, 252 F. Supp. 2d 728 (C.D. Ill. 2003). [2003 JB Aug]
U.S. Supreme Court upholds Michigan prison rules
limiting visits by children, non-family members, former prisoners, or for
prisoners who commit two violations of substance abuse rules. Legitimate
penological interests override any First Amendment right to association claim.
Overton, Director, Michigan Department of Corrections v. Bazzetta, #02-94, 123
S. Ct. 2162 (2003).
Recipients of collect calls from Ohio inmates
could pursue their claim against counties and telecommunications providers that
rates were so unreasonably high as to violate their equal protection right to
fundamental freedom of speech and association. Claims against the State of Ohio
were barred by Eleventh Amendment immunity, and anti-trust and
telecommunications statute claims were not viable. McGuire v. Ameritech
Services, Inc., 253 F. Supp. 2d 988 (S.D. Ohio 2003).
A prison librarian's alleged filing of an
"erroneous" evaluation of a prisoner's performance in his work
assignment after the prisoner filed a grievance over an earlier evaluation was
not unlawful retaliation in violation of the prisoner's First Amendment rights.
The librarian had submitted other negative evaluations of the prisoner's work
performance before he ever filed a grievance. Keenan v. Daniel, #02-2059, 63
Fed. Appx. 180 (6th Cir. 2003).[N/R]
Prisoner's claim that an officer intentionally
deprived him of one issue of a magazine to which he subscribed because the
officer disliked the magazine's views, and lied about doing so, was sufficient
to state a First Amendment free speech claim. Prisoner did not, however, state
a valid claim for violation of his right to religious freedom, since, while the
Pagan Revival magazine purported to have a religious theme, he did not claim
that the magazine had anything to do with his religious practices or that his
failure to receive it interfered with the exercise of his religion. Lindell v.
Doe, #01-2527, 58 Fed. Appx. 638 (7th Cir. 2003). [N/R]
Correctional officer allegedly forced to quit
after he reported a co-worker's misconduct in playing cards with a group of
inmates stated a possible claim for violation of his First Amendment rights
based on tolerance of supervisors of harassment of him for making the report,
since tolerance of such conduct was a "matter of public concern."
Baron v. Hickey, 242 F. Supp. 2d 66 (D. Mass. 2003). [N/R]
Jail officials did not violate prisoner's First
Amendment rights by disciplining him for the use of insolent and threatening
language in grievances that he filed. "True threats" are not
protected at all under the First Amendment, and the purpose of the grievance
procedure was to bring issues to the attention of jail authorities, not to
provide a forum to make "disparaging, degrading" or abusive comments
about jail staff members. In Re Parmelee, No. 47231-3-I, 63 P.3d 800 (Wash.
App. 2003). [2003 JB Jun]
Prisoner's removal from supervised release
program for activities advocating the legalization of marijuana enjoined by
federal trial court. Court finds that activities, including speaking to the
press, passing out literature outside a courthouse, running a website, and
running television commercials were all lawful actions protected by the First
Amendment. Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302 (D.N.J.
2003). [2003 JB Jun]
Ban on possession of electric or electronic
instruments in federal prisons (except for use in religious activities) did not
violate prisoners' First Amendment rights. Bureau of Prisons acted reasonably
in interpreting a statute barring the use of appropriated federal funds
"for use or possession" of such instruments as allowing a prohibition
on the possession of the items. Kimberline v. U.S. Department of Justice, No.
01-5387, 318 F.3d 228 (D.C. Cir. 2003). [2003 JB May]
Pennsylvania State Department of Corrections
policy which barred inmate receipt of incoming publications found by a
committee of employees to contain obscene materials did not violate prisoners'
rights under free speech guarantees of the Pennsylvania state Constitution,
Article 1, sec. 7, since there is no constitutional protection for obscene
materials. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002).
[N/R]
Prison officials failed to meet their burden of
showing that they would have imposed the same punishment on a prisoner
regardless of their alleged retaliation against him for exercising his
constitutionally protected right to use the prison grievance system to complain
about alleged staff racism. Gayle v. Gonyea, No. 01-0218, 313 F.3d 677 (2nd
Cir. 2002). [2003 JB Apr]
Prison's requirement that books received from
vendors have special shipping labels attached or else not be delivered to
prisoners found to unduly burden inmates' First Amendment rights. Federal court
finds policy was arbitrary and unreasonable and that legitimate security
interests in preventing introduction of contraband were adequately protected by
other existing policies. Ashker v. California Department of Corrections, 224 F.
Supp. 2d 1253 (N.D. Cal. 2002). [2003 JB Feb.]
Federal death row inmate could pursue civil
rights action concerning whether prison officials violated his First Amendment
rights by restricting his access to the press. The case presented genuine
issues of whether the restrictions were based on his death-row status and a
desire to suppress his views, rather than to serve legitimate penological
interests, and whether prison officials imposed the restrictions in a content
neutral fashion. Hammer v. Ashcroft, #01-2898, 42 Fed. Appx. 861 (7th Cir.
2002). [N/R]
Virginia correctional policy limiting prisoner's
incoming general purpose mail to one ounce per envelope did not violate
prisoners' First Amendment rights and served legitimate penological interests
in reducing avenues for smuggling contraband into the prisons. Policy did not
apply to legal, special purpose, educational correspondence, or mail from
vendors or governmental agencies. Hall v. Johnson, 224 F. Supp. 2d 1058 (E.D. Va.
2002). [2003 JB Feb.]
Magazines sent to prisoner through the mails were
obscene despite not showing sexual penetration when they did depict simulated
sexual activity and discharged sexual fluids, but factual issues remained as to
whether prison mail room employees improperly censored or returned to sender
non-obscene letters and photographs sent to inmate by individual female
correspondent and whether some materials sent to him were improperly
"converted" for their "own personal use." Elliott v. Cummings,
#01-3317, 49 Fed. Appx. 220 (10th Cir. 2002). [2003 JB Feb.]
State prisoner could pursue First Amendment claim
asserting that he was subjected to a transfer to a facility farther from his
home in retaliation for writing letters to newspapers which were critical of
the prison system. State sovereign immunity under Pennsylvania law was no
defense to his federal civil rights lawsuit. Owens v. Shannon, 808 A.2d 607
(Pa. Cmwlth 2002).[N/R]
Prisoner could pursue his claim that correctional
officials retaliated against him for his participation in African/African
American Cultural Coalition and his pursuit of grievances and lawsuits, even if
he had no independent constitutional right relating to the complained of
specific deprivations. Prisoner failed, however, to show that defendants'
motives were retaliatory or used excessive force against him. Cunningham v.
O'Leary, #00-3729, 40 Fed. Appx. 232 (7th Cir. 2002). [2003 JB Jan]
Prisoner stated a claim for unlawful retaliation
in violation of his First Amendment rights by asserting that he was told that
he was removed from the prison laundry because he wrote to his congressional
representative. He also stated a possible equal protection claim by asserting
that he had received more severe discipline for a sexual incident because of
his sexual orientation. Federal appeals court orders further proceedings as to
whether plaintiff prisoner exhausted available administrative remedies on those
claims. Feaster v. U.S. Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15 (2nd
Cir. 2002). [N/R]
New York prisoner stated a claim for
impermissible retaliation against him for protected First Amendment activity by
alleging that he was disciplined because he circulated a petition requesting an
investigation of a correctional officer's alleged "abusive conduct."
Farid v. Goord, 200 F. Supp. 2d 220 (W.D.N.Y. 2002). [2002 JB Oct]
Federal appeals court orders further proceedings
on prisoners' challenge to policy preventing them from viewing movies rated R
or NC-17. Trial court, in rejecting prisoners' First Amendment claim, could not
just rely on "common sense," but instead needed to do a
"thorough analysis" of the relevant penological interest and the
prohibition's relationship to it. Wolf v. Ashcroft, #01-1869, 2002 U.S. App.
Lexis 14852 (3rd Cir. 2002). [2002 JB Sep]
California prisoner's role as chairman of an
Inmate Advisory Council established by state regulations was a First Amendment
protected activity; appeals court overturns summary judgment for officers
accused of issuing false administrative warnings against prisoner in
retaliation for his activities. Summary judgment upheld, however, for officers
who filed disciplinary charges against prisoner and hearing officer who
convicted prisoner, even though particular disciplinary finding was
subsequently overturned by the warden. McQuillion v. McKenzie, #00-15505, 35
Fed. Appx. 547 (9th Cir. 2002).[2002 JB Sep]
Prison policy prohibiting prisoners from
receiving publications, such as books and magazines, as gifts, violated their
First Amendment rights, but federal appeals court rules that the law on this
subject was not "clearly established" until it had upheld a similar
ruling in another case on appeal, entitling defendant prison officials to qualified
immunity from liability. Sorrels v. McKee, #01-35222, 287 F.3d 1213 (9th Cir.
2002). [2002 JB Aug]
Federal prisoner stated a possible claim against
the Bureau of Prisons for violation of federal Privacy Act based on a claim
that he was transferred and reclassified as a "special offender"
based on false accusations of misconduct against him in alleged retaliation for
his exercise of his First Amendment rights. Toolasprashad v. Bureau of Prisons,
#00-5424, 286 F.3d 576 (D.C. Cir. 2002). [2002 JB Jul]
Prison's maintenance of different policies on
conditions of confinement of death row prisoners and prisoners serving
non-capital sentences did not constitute First Amendment retaliation against
death row prisoners where the differing policies and treatment did not depend
on whether the prisoner facing death had appealed their sentence. Further,
while this difference in treatment may have made life "more
unpleasant" for those on death row, the conditions were not so different
from those faced by other inmates as to constitute cruel and unusual punishment
or serve as a deterrent against filing law suits. Apanovitch v. Wilkinson,
#01-3558, 32 Fed. Appx. 704 (6th Cir. 2002). [N/R]
299:165 Federal prison rule banning
possession of electronic instruments did not violate prisoners' First Amendment
rights, but court orders further proceedings on claim that the Bureau of
Prisons improperly allowed a "religious-use" exception to the rule,
discriminating in favor of religion. Kimberlin v. U.S. Dept. of Justice, 150 F.
Supp. 2d 36 (D.D.C. 2001).
298:149 Officer was not entitled to qualified
immunity on prisoner's claim that he retaliated against him for complaining
about his threats to harm him by telling gun tower to shoot prisoner if he
moved and then subjected prisoner to discipline for not returning to his cell.
Johnson v. Freeburn, 144 F. Supp. 2d 817 (E.D. Mich. 2001).
297:133 Michigan prison officials had discretion
to deny television network's request for an on-camera interview with prisoner
Dr. Jack Kevorkian, assisted suicide advocate. American Broadcasting Companies,
Inc. v. Mich. Dept. of Corrections, No. 228757, unpublished, (Mich. App. June
1, 2001).
297:133 Reporter could not be barred from access
to county jail based on the critical content of a prior article she wrote. The
Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001).
297:131 Corrections officers subject to
discipline for "inattentiveness" during training on "gays and
lesbians" in the workplace were improperly punished for silently reading
bibles, when other officers, inattentive or reading non-religious materials,
were not similarly punished. Altman v. Minn. Dept. of Corrections, #00-1168 and
00-1489, 251 F.3d 1199 (8th Cir. 2001).
295:100 Correctional officers' alleged statements
labeling a prisoner a "rat" and an "informant," based on
his complaints that an officer was allegedly seeking to incite another prisoner
to attack him in retaliation for successfully appealing a disciplinary order
did not suffice to constitute unconstitutional retaliation for his exercise of
his First Amendment rights. Dawes v. Walker, No. 99-252, 239 F.3d 489 (2nd Cir.
2001).
294:88 Prisoner did not need to exhaust
administrative remedies before pursuing federal civil rights lawsuit for
particular, individualized instance of alleged retaliation by correctional
officer; inmate claimed officer filed disciplinary charges against him because
of his complaints to prison authorities about the officer's alleged misconduct.
Lawrence v. Goord, No. 99-0202, 238 F.3d 182 (2nd Cir. 2001).
294:83 U.S. Supreme Court rules that prisoners do
not have a special First Amendment right to provide legal assistance to fellow
inmates. Shaw v. Murphy, No. 99-1613, 121 S. Ct. 1475 (2001).
293:73 Washington state prison officials were
entitled to qualified immunity from money damages for barring receipt of
newsletter containing the names of current
prison employees out of concern for employees'
safety; qualified immunity, however, did not properly bar claims for
declaratory and injunctive relief. Prison Legal News v. Washington State Dept.
of Corrections, #00-35095, 2001 U.S. App. LEXIS 5165.
293:72 Oregon prison rule prohibiting prisoners
from receiving non-profit organization's newsletter about "prison legal
news" because it was sent as bulk "standard rate" mail violated
the First Amendment rights of both prisoners and the publisher of the
newsletter. Prison Legal News v. Cook, No. 99-36084, 238 F.3d 1145 (9th Cir.
2001).
293:67 California prison rule prohibiting the
receipt, through U.S. mail, of Internet generated material, including e-mail,
was rationally related to prison's legitimate security concerns; appeals court
overturns order allowing prisoner to receive printouts of e-mails sent to his
internet web page, created via an arrangement with an outside company. Collins,
In Re, 86 Cal. App. 4th 1176, 104 Cal. Rptr. 2d 108 (2001).
292:56 UPDATE: Prison officials adequately showed
that there were legitimate security concerns about a prisoner's attempt to form
an inmate "legal defense center"; no injunction requiring permitting
the group on First Amendment grounds was justified. Nicholas v. Miller, 109 F.
Supp. 2d 152 (S.D.N.Y. 2000).
293:72 N.Y. prisoner awarded $25,000 in
compensatory damages and $20,000 in punitive damages against correctional
officer who allegedly found him guilty of a disciplinary infraction in
retaliation for his participation in an inmate grievance resolution committee.
Maurer v. Patterson, 197 F.R.D. 244 (S.D.N.Y. 2000).
289:14 Prisoner could pursue federal civil rights
lawsuit over loss of his prison job which allegedly resulted from officers
pursuing false disciplinary charges against him after he filed a complaint
against an officer; despite the lack of a property or liberty interest in his
job assignment, prisoner's equal protection (racial discrimination) and
retaliation claims were not barred. DeWalt v. Carter, No. 98-2415, 224 F.3d 607
(7th Cir. 2000).
287:163 Even if prisoners' lawsuit was the
"catalyst" causing New Jersey to alter the application of a statute
denying prisoners access to pornographic materials, they were not entitled to
an award of attorneys' fees once an appeals court ruled that the statute did
not violate their rights; court finds an attorneys' fee award on a
"catalyst" theory would violate the Prison Litigation Reform Act.
Waterman v. Farmer, 84 F. Supp. 2d 579 (D.N.J. 2000).
277:11 Correctional officer violated prisoner's
First Amendment rights by placing him in administrative segregation for three
days in retaliation for filing grievances against him; appeals court rules that
nominal damage award of $1 was inadequate, and that trial court should increase
this and also consider awarding punitive damages against officer. Trobaugh v.
Hall, #98-4031, 176 F.3d 1087 (8th Cir. 1999).
279:40 UPDATE: Federal appeals court rules that
Arizona county jail system's policy prohibiting the possession of all material
depicting nudity, including such magazines as Playboy was reasonably related to
legitimate penological interests in protecting employees and inmates against
sexual harassment or assault. Mauro v. Arpaio, No. 97-16021, 188 F.3d 1054 (9th
Cir. 1999).
280:51 Disciplining inmate law clerk for writing
letter to another prisoner containing legal advice violated law clerk's First
Amendment rights. Murphy v. Shaw, No. 97- 35989, 195 F.3d 1121 (9th Cir. 1999).
281:67 Prisoner is awarded $4,221.40 against two
officers on his claim that they imposed disciplinary sanctions on him, removed
him from his job in the mess hall, and transferred him to another facility in
retaliation for his complaints about prisoner work schedules which arguably
violated state law limiting work hours. Gaston v. Coughlin, 81 F. Supp. 2d 381
(N.D.N.Y. 1999).
283:102 Prisoner's First Amendment right of
association created an arguable claim to form a prisoners' "legal defense
center," and trial court should not have granted prison officials who
denied this request summary judgment without engaging in a detailed analysis of
the functions that this group would have.Nicholas v. Miller, #98-2768, 189 F.3d
191 (2nd Cir. 1999).
284:120 Female prisoner and her husband, who was
allowed to attend the birth of their child after filing a federal civil rights
lawsuit, were prevailing parties entitled to $5,743.67 in attorneys' fees and
costs; hourly fee limits of Prison Litigation Reform Act did not apply since
the husband was not a prisoner; lawsuit claimed denial was based on prisoner
giving newspaper interview regarding prison conditions. Turner v. Wilkinson, 92
F. Supp. 2d 697 (S.D. Ohio 1999).
285:135 Wisconsin appeals court rules that a
state notice of claim statute was not an "administrative remedy" that
a plaintiff prisoner was required to "exhaust" before proceeding with
his federal civil rights lawsuit, filed in state court, challenging the
exclusion of all material containing nudity or pornography from state prisons.
Ledford, State Ex Rel., v. Cir Ct. for Dane County, No. 99-0939-W, 599 N.W.2d
45 (Wis. App. 1999).
277:11 Correctional officer violated prisoner's
First Amendment rights by placing him in administrative segregation for three
days in retaliation for filing grievances against him; appeals court rules that
nominal damage award of $1 was inadequate, and that trial court should increase
this and also consider awarding punitive damages against officer. Trobaugh v.
Hall, #98-4031, 176 F.3d 1087 (8th Cir. 1999).
[N/R] Trial court should have considered whether
correctional officers would have taken the same actions against prisoner in the
absence of a retaliatory motive when considering prisoner's First Amendment
claim. Davidson v. Chestnut, No. 98-2853(L), 193 F.3d 144 (2nd Cir. 1999).
271:100 Prison policy banning inmate possession
of music tapes with "parental warning" label concerning explicit
lyrics did not violate prisoners' First Amendment rights. Herlein v. Higgins,
No. 98-2271, 172 F.3d 1089 (8th Cir. 1999).
274:147 Correctional officer who flew Nazi flag
at his home off-duty was properly reinstated in job when no actual harm was
shown in his workplace and his evaluations were outstanding. Arbitration bet.
N.Y. St. Law Enf. Off. Union and New York, #82571, 694 N.Y.S.2d 170 (A.D.
1999).
266:28 Transfer of prisoner to another facility
in retaliation for his correspondence with newspaper reporter, participation in
pre-authorized newspaper interview, and activities as president of authorized
advocacy group for lifer prisoners was improper; prisoner entitled to damages.
Castle v. Clymer, 15 F.Supp.2d 640 (E.D. Pa. 1998).
267:37 Prison chaplain's conversations with
prison official outside his chain of command concerning decision to have
someone else, rather than him, tutor an illiterate prisoner was not protected
First Amendment speech. Button v. Kibby-Brown, #97-2832, 146 F.3d 526 (7th Cir.
1998).
267:37 Federal appeals court rules that prisoner
on death row, convicted of murdering police officer, was entitled to injunction
against enforcement of rule prohibiting him from carrying on "business or
profession" of writing articles and books; prison allowed another inmate
to publish and promote a novel, and did not show that plaintiff prisoner's
writings burdened prison resources or threatened security; special scrutiny to
prisoner's legal correspondence was improper. Abu-Jamal v. Price, # 96-3756,
154 F.3d 128 (3rd Cir. 1998).
267:44 Update: appeals court, acting en banc,
overturns panel decision that rule prohibiting prisoners from threatening prison
employees with legal redress during confrontations was facially invalid under
the First Amendment; prisoner could not facially challenge rule when his
disciplinary conviction for violation of the rule had not been set aside.
Clarke v. Stalder, #96-30313, 154 F.3d 186 (5th Cir. 1998).
270:84 Prison employee's demands for a personal
security guard to protect him did not involve a matter of public concern
entitling him to protection, under the First Amendment, from firing in alleged
retaliation for raising the issue. Kohl v. Smythe, 25 F.Supp.2d 1124 (D. Hawaii
1998).
270:84 Correctional officer's criticism, to
inmate, of other officer's conduct was proper grounds for his termination; any
First Amendment interest of officer was outweighed by strong interest of
correctional department in safe and efficient running of prison. Dept. of
Corrections v. Derry, 510 S.E.2d 832 (Ga. App. 1998).
[N/R] Warden's statements about corruption and
security problems in prison were protected speech under the First Amendment.
Campbell v. Arkansas Dept. of Correction, #98-1161, 155 F.3d 950 (8th Cir.
1998).
259:104 Rule prohibiting prisoners from
threatening prison employees with legal redress during confrontational
situations was facially invalid under the First Amendment, federal appeals
court panel rules; rehearing by full appeals court granted. Clarke v. Stalder,
121 F.3d 222 (5th Cir.), rehearing en banc granted, 133 F.3d 940 (5th Cir.
1997).
260:118 Federal appeals court rules that two jail
employees were legitimately discharged by incoming sheriff based on job
performance and "public perception" of job performance, rather than
racial discrimination; one employee's comments to federal trial court
concerning jail conditions were not protected speech under the First Amendment,
since they were not made as a "concerned citizen" but based on orders
from his superior. Day v. Johnson, 119 F.3d 650 (8th Cir. 1997), cert. denied,
118 S.Ct. 707 (1998).
249:134 Disciplining inmate for publishing
newspaper article which could be read as advocating violence against prison
employees did not violate his First Amendment rights; article was published in
external newspaper with intention that it be circulated to inmate subscribers
within correctional facility. Lomax v. Fiedler, 554 N.W.2d 841 (Wis. App.
1996).
251:167 Missouri prison's stay on face to face
media video interviews of prisoners did not violate First Amendment; media did
not have a constitutional right of access to the prison superior to that of the
general public. Sidebottom v. Schiriro, 927 F.Supp. 1221 (E.D. Mo. 1996).
231:46 Update: Federal appeals court overturns
injunction against transfer and double celling of former "Black Panther
Party" leader; trial court erred in determining that prison officials'
actions were in retaliation for his media interviews when transfer decision was
made prior to date television interview took place, and transfer was justified
by prisoner's own prior requests to be closer to his family. Pratt v. Rowland,
65 F.3d 802 (9th Cir. 1995).
231:43 Two federal courts uphold actions of
prison officials in withholding access to literature of "Church of Jesus
Christ, Christian," religious arm of the Aryan Nation, a white supremacist
group. Van Dyke v. Washington, 896 F.Supp. 183 (C.D. Ill. 1995); George v.
Sullivan, 896 F.Supp. 895 (W.D. Wis. 1995).
230:20 Prohibiting prisoner from corresponding
with relatives in Spanish and Apache languages did not violate his
constitutional rights; English-only rule was based on legitimate security
concerns and hiring interpreters to translate mail would have been unduly
burdensome; prison officials were, however, liable for retaliatory transfer of
prisoner for filing grievances and lawsuits concerning the policy. Sisneros v.
Nix, 884 F.Supp. 1313 (S.D. Iowa 1995).219:38 Prohibiting a prisoner enrolled
in a therapeutic sexual offender treatment program from retaining sexually
explicit fiction which he wrote did not violate his First Amendment rights, but
rather was based on a legitimate goal of rehabilitation. Frink v. Arnold, 842
F.Supp. 1184 (S.D. Iowa 1994).
220:62 Federal court enjoins transfer of former
"Black Panther Party" leader and placing him in double, instead of
single cell; court finds probable retaliatory motive when transfer took place
right after prisoner agreed to media interview and when prisoner's allegedly
medical need for single cell had previously been accommodated. Pratt v.
Rowland, 856 F.Supp. 565 (N.D. Cal. 1994).
222:83 Update: U.S. Supreme Court to review case
granting qualified immunity to prison officials in suit inmate brought claiming
that his First Amendment rights were violated when he was placed in
administrative detention after he told the press he had allegedly sold
marijuana to a Vice Presidential candidate. Kimberlin v. Quinlan, 6 F.3d 789
(D.C. Cir. 1993), rehearing denied, 17 F.3d 1525 (D.C. Cir. 1994), cert.
granted, 115 S.Ct. 929 (1995).
222:86 Prison inmate could not bring suit
challenging prison policy prohibiting correctional officers from writing to the
parole board on a prisoner's behalf. Harris v. Evans, 20 F.3d 1118 (11th Cir.
1994).
222:91 Prohibition on possession of gang-related
materials, including newspaper articles, did not violate prisoner's
constitutional rights. Bryson v. Iowa District Court, 515 N.W.2d 10 (Iowa
1994).
225:142 Transfer of prisoner seeking nomination
as member of Prisoner Advisory Council did not violate his First Amendment
rights or consent decree when there was evidence that prisoner was legitimately
transferred for being "troublesome" and "manipulative."
Hazen v. Reagen, 16 F.3d 921 (8th Cir. 1994).
226:150 Update: U.S. Supreme Court vacates grant
of qualified immunity to prison officials in suit brought by inmate challenging
his placement in administrative detention after he told the press he sold drugs
to Vice Presidential candidate; Court orders reconsideration in light of
Johnson v. Jones, reported above. Kimberlin v. Quinlan, 6 F.3d 789 (D.C. Cir.
1993), rehearing denied, 17 F.3d 1525 (D.C. Cir. 1994), cert. granted, 115
S.Ct. 929 (1995), vacated, 115 S.Ct. 2552 (1995).
[N/R] Prisoner's complaint adequately stated
claim for retaliation against him for filing prior grievances. Black v. Lane,
22 F.3d 1395 (7th Cir. 1994).
[N/R] Prisoner's claim that correctional
employees threatened him with retaliation for using prison grievance procedures
was a sufficient injury to constitute an alleged First Amendment violation.
Burgess v. Moore, 39 F.3d 216 (8th Cir. 1994).
Arbitrary restriction of reading materials to one
bible without showing a need for such a restriction based on prison security is
an unacceptable infringement on the prisoners' First Amendment rights. Pembroke
v. Wood Co., Tex., 981 F.2d 225 (5th Cir. 1993).
Federal prison officials were entitled to
qualified immunity in suit inmate brought claiming that his First Amendment
rights were violated and that he was retaliated against by being placed in
administrative detention after he told the press he had allegedly sold
marijuana to a Vice Presidential candidate. Kimberlin v. Quinlan, 6 F.3d 789
(D.C. Cir. 1993).
Regulations allowing inmates access to sexually
explicit materials only in a special "reading room" was not
unconstitutional. Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993).
Disciplining inmate for using the word
"shit" in expressing anger toward corrections officer did not violate
the First Amendment; regulation prohibiting verbal harassment of prison
employees was valid. Harry v. Smith, 561 N.Y.S.2d 374 (Sup. 1990).