FEATURED CASES

WITH LINKS TO THE OPINIONS

Township could not be held liable for escapee's death from being struck and killed by an automobile while fleeing from a police station where she had been handcuffed to a ballet bar in the booking room because another intoxicated detainee was already occupying the lone holding cell.

     A Michigan intermediate appeals court has ruled that a township could not be held liable, under state law, for alleged negligence in the death of an arrestee who escaped from custody at a police station and then was struck and killed by a car while fleeing.

     The detainee's mother had called police and requested that her daughter be taken into custody because she was intoxicated and posed a danger to herself and others. There was also an outstanding arrest warrant from another township. She was arrested and transported to the police station where she was handcuffed to a ballet bar in the booking room because there was an intoxicated man already in the lone holding cell.

     When she was left alone in the room, she was eventually able to maneuver her way out of the handcuffs and escape. As she ran from the police station into traffic, she was hit by an unidentified vehicle, and died after she was transported to the hospital. Her mother brought a negligence claim against the township and its officers.

     The defendants contended that they were entitled to governmental immunity, while the plaintiff argued that the township was liable under the "public building" exception to governmental immunity and that the individual officers were liable under the gross negligence exception to governmental immunity.

     The appeals court rejected the plaintiff's arguments. It noted that, under Michigan law, a governmental entity is generally immune from liability for actions taken while it is performing a governmental function. Under MCL 691.1406, however, there is a "public building" exception imposing liability for bodily injury and proper damage resulting from dangerous and defective conditions in public buildings which the governmental entity had actual or constructive notice of, but failed to remedy.

     The appeals court reasoned that in this case, there was nothing defective about the building, and the plaintiff's real claim was one for negligent supervision of the prisoner. "Where the essence of a plaintiff's claim is negligent supervision, the plaintiff cannot properly allege a building defect merely because a superior building design would have facilitated better supervision."

     A defect in the building, the court found, did not cause the decedent's injuries. The booking room was not defective for its intended purpose, the temporary detention of those in custody. Further, the handcuffs and ballet bar provided a sufficient means of temporary restraint. Under these circumstances, the absence of an additional holding cell, additional video surveillance, or a locked door, "does not amount to a defective design."

     As for the individual defendant officers, even assuming that they were grossly negligent, such negligence was not the "direct cause preceding the injury." There were several other "more direct causes" of the decedent's injuries and death, the court noted, including her escape and flight from the police station, her running onto the highway and into traffic, and the unidentified driver hitting her. Any gross negligence on the part of the officers was "too remote" to be "the" proximate cause of the prisoner's injuries, the court held.

     Kruger v. White Lake Township, Nos. 222904, 223337, 648 N.W.2d 660 (Mich. App. 2002).

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•••• EDITOR'S CASE ALERT ••••

County had a duty under Washington state law to detainees to investigate their claim that they had been misidentified as persons sought under arrest warrants, but alleged violation of this duty under state law was insufficient to establish a claim for federal civil rights violations.

     An intermediate Washington state appeals court has ruled that under state law "once a county is on notice that a detainee in its custody may not be the person described in the relevant arrest warrant, the county has a duty to take further reasonable steps to verify the detainee's identity." At the same time, the court upheld the dismissal of two detainees federal civil rights claims under 42 U.S.C. Sec. 1983 based on an alleged violation of this duty.

     The case involved claims brought by two former detainees. One was stopped for a driving infraction and then arrested under the authority of a warrant for his brother, Robert Stalter. The warrant did not state any aliases for Robert Stalter, but a dispatcher allegedly informed the arresting officer that Robert was known to use the alias "Kevin," the name of the arrestee. The arrestee explained who he was, and that Robert was his brother. He also did not match the description in the warrant, being 4 inches taller, 27 pounds heavier, and having a different eye color and birth date. Despite this, he was booked under the name Robert Stalter, and kept in jail for two days, continuing to object that he had been misidentified, until he was released at an arraignment.

     The second plaintiff detainee was also stopped for a traffic violation and then arrested under a warrant from North Carolina seeking someone with the same name, race, gender, and birthdate. He immediately told the officer that he had never been to North Carolina and was not the person named in the warrant. He continued to state that he had been misidentified, but was kept in custody for approximately three weeks, until a comparison was made with the fingerprints of the person sought under the warrant, resulting in his release.

     The appeals court held that the detainees had adequately stated claims under state law for negligence and false imprisonment. It found that a jury could find that the failure to investigate the claims of misidentification in a timely fashion contributed to the detainees' continued incarceration. It also found that a jury could find that the county detained both plaintiffs beyond a reasonable time under the circumstances.

     One of the two detainees, the one sought under the North Carolina arrest warrant, also asserted a federal civil rights claim under 42 U.S.C. Sec. 1983. The appeals court held that even if the county violated its duties to the detainee under state law, "a state law tort claim alone cannot be the basis of a Sec. 1983 claim." Since the detainee was arrested under a warrant issued in another state, the Uniform Criminal Extradition Act, RCW Chapter 10.88, governed the required due process. He was entitled to a hearing as soon as possible after his arrest, which he received, so no violation of his federal rights occurred.

     Stalter v. State of Washington, #27118-4-II, 227351-9-II, 51 P.3d 837 (Wash. App. 2002).

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Detainee in county jail failed to show that sheriff and his deputies were deliberately indifferent to threats to his health and safety due to toilet in his cell leaking both water and sewage when they supplied him with blankets or towels to absorb water and a repair attempt was made.

     A pretrial detainee in a Missouri county jail asserted that the toilet in his cell leaked both sewage and water and "from the beginning" he complained to the sheriff and his deputies both verbally and in writing, stating that the foul water and sewage were making the cell "unbearable to live in." He claims that in response to his request to either have the toilet fixed or move him to another cell, deputies provided him with "blankets to help absorb the leakage."

     He subsequently slipped on water in his cell and fell, striking his head and back on the toilet and floor. A report by ambulance technicians who took him to the hospital emergency room states that they found him lying on a wet floor and observed water puddles and a sheet by the toilet soaked with water.

     The prisoner sustained a closed head injury, a concussion, and back and knee sprains. The prisoner was allegedly returned to the same cell after his discharge from the hospital. A plumber later attempted to repair the toilet, and the prisoner became a state prisoner after his conviction. In a lawsuit against the county sheriff and a number of deputies, he claims that his current medical problems, including hearing loss and seizures, are a result of his fall.

     A federal appeals court upheld summary judgment for the defendants.

     "To prevail on a condition-of-confinement claim, inmates and pretrial detainees must show (1) the condition was serious enough to deprive them of the minimal civilized measure of life's necessities, or to constitute a substantial risk of serious harm, and (2) officals were deliberately indifferent to the inmates' or detainees' health and safety," the court noted.

     The prisoner argued that there was sufficient evidence from which a jury could find that the defendants were deliberately indifferent, since his cell was "inundated with foul water and raw sewage for the ten weeks that he lived there," and the defendants failed to act "in the face of an unjustifiably high risk of harm that was either known or so obvious that it should have been known to them."

     "Constructive knowledge," however, the court stated, "or the 'should-have-known' standard, is not sufficient to support a finding of deliberate indifference," which is a "difficult standard to meet." Mere negligence is not enough.

     Instead, the prisoner had the burden of proving that the officials knew of facts from which they could infer a substantial risk of serious harm existed and that the officials drew that inference."

     In this case, the prisoner acknowledged that the deputies "frequently" provided him with blankets or towels to absorb water, and "a plumber who tried to fix the toilet," after he fell..

     The court concluded that the officials "responded to the complaints and tried to remedy the problem." It stated that "undoubtedly, the blankets helped. The fact that the remedies fell short of curing the problem does not show the officials were deliberately indifferent" to the plaintiff's health and safety. The appeals court quoted the trial court's finding that the "uncontested evidence does not support a finding that the prison officials were aware that the towels were insufficient to maintain a safe area or that the leakage was sufficiently serious that the prisoners had a substantial risk of falling which would cause serious harm."

     Frye v. Pettis County Sheriff Department, #02-1809, 41 Fed. Appx. 906 (8th Cir. 2002).

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Doctor's detailed affidavit concerning the heat-related symptoms that a correctional officer who was supervising a hoe squad "should have" recognized in a prisoner who subsequently collapsed and died was not sufficient to establish that the officer was deliberately indifferent to the prisoner's medical needs. Twenty minute delay in getting inmate to the infirmary after his collapse at work was not unreasonable.

     An Arkansas prisoner working outside with a "hoe squad" on a hot day suffered a heat-related collapse while walking back to the facility. He subsequently died and his estate sued the officer who was supervising the hoe squad on the day of the incident.

     A federal appeals court upheld summary judgment on the basis of qualified immunity for the defendant officer. The appeals court agreed that knowingly compelling an inmate to perform work which is beyond their strength, which constitutes danger to his health, and which is unduly painful could violate the Eighth Amendment rights of the prisoner, and that such rights were "clearly established."

     In this case, however, the plaintiff failed to present any evidence that a reasonable officer in the position of the defendant would have known that his actions violated the decedent's Eighth Amendment rights. The only evidence presented was an affidavit of a doctor who reviewed the decedent's medical records. While the doctor listed in his affidavit heat-related symptoms that he stated the officer must or should have recognized, these symptoms (red, hot, and dry skin; cool dry skin; lightheadedness or dizziness; nausea; angry behavior, and low blood pressure), "for the most part, would not have been readily visible to anyone."

     The appeals court also ruled that a twenty minute delay in getting the decedent to the prison infirmary after his collapse was not unreasonable. The plaintiff submitted no evidence supporting her assertion that the decedent suffered seizures and was "writhing on the ground" after his collapse. The delay was justified by the legitimate security concerns involved in the officers' supervision of other inmates on the hoe squad, the court found.

     Bridges v. Rhodes, #02-1629, 41 Fed. Appx. 902 (8th Cir. 2002).

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Doctor was not entitled to qualified immunity on prisoner's claim that he acted with deliberate indifference in recommending that prisoner purchase over-the-counter medications when he was aware that the prisoner lacked funds to do so.

     A California prisoner claimed that a prison doctor was deliberately indifferent to his serious medical needs because he allegedly failed to provide a more thorough medical examination, and specifically did not sufficiently review the prisoner's prior x-ray report or request current x-rays. The prisoner also claims that the doctor's recommendation that he utilize over-the-counter medications was deliberate indifference to his needs because the doctor had knowledge that he may have lacked the funds to make such a purchase.

     A federal appeals court rejected the argument that the doctor's examination was inadequate. A review of his diagnostic notes "reveals," the court stated, that he provided "every service" that the prisoner "alleges was not provided during his examination." Additionally, the question of whether an "x-ray or additional diagnostic techniques or forms of treatment" are "indicated" is a "matter for medical judgment" that does not subject a prisoner to cruel and unusual punishment in violation of the Eighth Amendment.

     The court declined, however, to grant the defendant doctor summary judgment on the basis of qualified immunity on the prisoner's claim regarding the recommending of over-the-counter medications, finding that this claim, if true, could constitute deliberate indifference. The court found that it would be clear to a reasonable doctor in the defendant's position that this alleged conduct, "which resulted in the effective denial of medical treatment, was unlawful under clearly established law prohibiting the denial of medical care to prisoners.

     Claims against other personnel, however, could not go forward, as there was no allegation that they were aware of the prisoner's claim that he lacked sufficient funds to purchase over-the-counter medications.

     Keller v. Faecher, #01-57179, 44 Fed. Appx. 828 (9th Cir. 2002).

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County and sheriff did not act with deliberate indifference in hiring a deputy who subsequently used allegedly excessive force against a pretrial detainee which severed his intestine. Alleged problems in deputy's background did not bear a "strong causal connection" to the specific constitutional violation claimed.

     A pretrial detainee in a county detention facility was placed in a cell after refusing to take a breathalyzer test and then he and his cell-mate began to yell and bang on the cell door. Four deputies responded to the "clamor," and the detainee later claimed that they entered the cell, grabbed him by his arms and legs, and repeatedly assaulted him as they dragged him to another cell. He claimed that, once in the new cell, one deputy forced him to the floor and struck him in the face, and a second deputy dropped his full weight behind his knee into his torso as he lay on his back on the floor. This "knee drop" allegedly severed the detainee's intestine.

     The injured detainee pursued various claims against the county, the sheriff, and two of the deputies. One of the claims was a wrongful hiring claim that alleged that the county was liable for the sheriff's decision in 2000 to hire the deputy who purportedly severed the detainee's intestine.

     The trial court granted summary judgment against the plaintiff on this wrongful hiring claim. The court found that there was insufficient evidence from which the sheriff could have discerned "an obvious risk" that the deputy would use excessive force if hired. Under the principles set forth by the U.S. Supreme Court in Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997), liability "may not be imposed unless a plaintiff directly links the applicant's background with the risk that, if hired, that applicant would use excessive force."

     While the plaintiff detainee claimed that the deputy's record contained a violent felony conviction, the record did not reveal that. The court learned that after the deputy paid a fine, the conviction was reduced to a misdemeanor, and was ultimately expunged from his record. His background "does not reveal that he knee-dropped an inmate (or anyone for that matter), nor does it reveal a single complaint of excessive force."

     The deputy's record at prior jobs did include "slapping" an inmate, mishandling inmates' money and property, "mouthing off" to two fellow deputies, disobeying a nurse and stating that the was going to "knock that bitch out," and acting insubordinate at work. His record also showed that he disobeyed orders, cursed other employees, failed to adhere to rules, left his post with no officer on duty, and failed to answer his radio when a supervisor attempted to contact him. There were also accusations by his ex-wife that he ran her off the road, tore a necklace off her neck, and pushed her, as well as allegations by his girlfriend that he grabbed her arm and threw her, and threatened to assault her.

     The plaintiff detainee emphasized that the deputy's past incidents of domestic violence should be viewed as a predictor of violence in the workplace. Both the deputy's ex-wife and girl friend obtained protective orders against him, the appeals court stated, but "none of their claims were ever substantiated."

     The appeals court agreed with the trial court that the deputy's record "may have made him a poor candidate for a position as a detention center deputy, but it would not have led a reasonable supervisor to conclude that there was an obvious risk that he would use excessive force if hired." The alleged problems in the deputy's background did not bear a "strong causal connection" to the specific constitutional violation claimed, the court ruled.

     Morris v. Crawford County, Arkansas, #01-3621, 299 F.3d 919 (8th Cir. 2002).

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Prisoner could pursue federal civil rights lawsuit challenging retroactive application of new state parole eligibility regulations when the state's parole system was "completely discretionary," since a successful challenge would only get the prisoner "in the door" to be considered for parole and would not necessarily imply the invalidity of his conviction or challenge the duration of his confinement.

     An Ohio prisoner serving a sentence of life imprisonment for murder filed a federal civil rights lawsuit challenging the retroactive application of new state parole eligibility regulations. He claimed that, at the time of his conviction, inmates serving life sentences were eligible for parole after serving 15 years. If not released at the first parole hearing, the Parole Board was required by state regulations to provide the prisoner with another hearing within five years.

     The plaintiff prisoner was denied parole at his first hearing, after serving 15 years. In 1998, three years after this denial, Ohio implemented new parole guidelines which determine an inmate's parole eligibility by factoring in the seriousness of the crime of conviction with the prisoner's propensity for future criminal behavior and risk to society. Under the new guidelines, if a prisoner is not released upon his first parole hearing, a second parole hearing can be delayed up to 10 years, with no halfway review required.

     In 2000, consistent with the earlier regulations, the Parole Board provided the prisoner with a midway review, but then determined that the new guidelines applied retroactively, mandating that he would have to serve 390 months (32.5 years) prior to gaining parole eligibility. His next hearing was scheduled for 2005, at which time he would still be over seven years short of parole eligibility under the new rules.

     The trial court dismissed the prisoner's 42 U.S.C. Sec. 1983 lawsuit against the new rules without prior notice to the defendants and before there was even service of process on them. It found that his claim could not be pursued since a "judgment on the merits would affect the validity of" his conviction or sentence, and the conviction or sentence had not previously been set aside.

      In reaching this ruling, the trial court was evidently relying on the principles set forth in Preiser v. Rodriguez, 411 U.S. 475 (1973) (prisoner's sole federal remedy is a writ of habeas corpus when he is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment), Heck v. Humphrey, 512 U.S. 477 (1994) (no recovery of money damages for allegedly unconstitutional conviction or imprisonment or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid unless the conviction or sentence has already been overturned), and Edwards v. Balisok, 520 U.S. 641 (1997) (no recovery under civil rights statute for challenge to validity of the procedures used to deprive him of good-time credits that necessarily implied the invalidity of the punishment imposed).

     The appeals court found that the trial court's reasoning was flawed, however. "As the holdings of these three cases indicate, only prisoner challenges under Sec. 1983 that 'necessarily imply' the invalidity of the conviction or challenge the duration of the physical imprisonment" are barred. The court noted that in this case, the prisoner was not challenging the "denial or revocation of parole," but rather challenging whether the Parole Board properly revoked his "eligibility for parole," and that determination "will have no immediate effect on his sentence."

     The appeals court noted that Ohio has a "completely discretionary parole system," so that merely granting the prisoner parole eligibility "does not affect the duration or validity of his sentence." All it does is get him "in the door" of the parole system. Because of this, the appeals court ordered further proceedings on the prisoner's claim.

     Dotson v. Wilkinson, #00-4033, 300 F.3d 661 (6th Cir. 2002).

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Prisoner could not pursue his claim for damages for emotional injuries caused by officer ordering him to be strip-searched in the presence of female correctional officers in the absence of any physical injury. Provision of Prison Litigation Reform Act prohibiting such recovery applied to incident which occurred in a private correctional facility providing services under a contract with the state.

     A male prisoner in a correctional facility in Colorado alleged that a correctional officer there ordered him strip-searched in the presence of female correctional officers, depriving him of constitutional rights and "causing embarrassment."

     The trial court ruled that the claim was barred under a provision of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e) which prohibits prisoner lawsuits for mental or emotional injury in the absence of a prior showing of physical injury. In this case, the prisoner did not claim any such physical injury.

     Upholding this result, a federal appeals court rejected the plaintiff prisoner's argument that the PLRA provision at issue did not apply because he was incarcerated in a private correctional facility.

     "While the term 'facility' is not defined in 42 U.S.C. Sec. 1997e," the court stated, "its meaning is clarified in 42 U.S.C. Sec. 1997(1)(1)," which states that the term "institution" means any facility or institution "which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State." In this case, the facility, although privately owned, provided services on behalf of the State of Colorado, and, at least in the case of the plaintiff, the court found, also on behalf of the State of Wyoming.

     While the court acknowledged an earlier ruling it had made that the limitations imposed by 42 U.S.C. Sec. 1997e(e) did not bar a claim for injunctive or declaratory relief based only on emotional injury, Perkins v. Kansas Dept. of Corrections, 165 F.3d 803 (10th Cir. 1999), the plaintiff in the immediate case did not expressly seek injunctive or declaratory relief, but only damages, and "no facts asserted in his complaint could reasonably support" a conclusion that he was impliedly seeking such relief, or an inference of a claim for nominal damages, such as $1.

     The appeals court found that a claim for punitive damages, as well as the prisoner's claim for compensatory damages was subject to the physical injury requirement of 42 U.S.C. Sec. 1997e(e).

     Milledge v. McCall, #01-1417, 43 Fed. Appx. 196 (10th Cir. 2002).

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Associate warden and correctional officers were entitled to qualified immunity in lawsuit over prisoner's alleged murder by his cellmate when available information did not make it so clear that cellmate would harm him that no reasonable officer would have allowed them to be celled together. Both prisoners had previously been celled together without incident and had requested to be celled together again.

     An inmate at the California Medical Facility-Vacaville was killed by his cellmate while they were housed in a psychiatric administrative segregation unit. His surviving family and estate sued an associate warden for allowing the cellmate to be double-celled and two correctional officers, a lieutenant and a sergeant, for allowing the decedent to be double-celled with his assailant.

     The defendants moved for summary judgment on their defense of qualified immunity. The trial court denied the motion, having found that there were triable issues of fact whether each of the defendants was deliberately indifferent to a substantial risk of serious harm from having the two prisoners double-celled together.

     A federal appeals court reversed, finding the defendants entitled to qualified immunity. The court noted that it had previously held, in Hamilton v. Endell, 981 F.2d 1062 (9th Cir. 1992), that a finding of deliberate indifference, or of a triable issue as to it, necessarily precludes a finding of qualified immunity. Following the refinement of the legal test for qualified immunity in Saucier v. Katz, 533 U.S. 194 (2001), however, the appeals court stated its belief that Saucier requires "an additional inquiry into whether a reasonable officer would have understood that his decision was impermissible under the Eighth Amendment."

     In this case, the appeals court found, the trial court's analysis stopped short of considering whether--assuming the facts in the injured party's favor--it would be clear to a reasonable officer that his conduct was unlawful. In this case, the court found, the "information available to them did not make it so clear that" the assailant would harm the decedent that "no reasonable officer could have agreed to allow them to be celled together." Accordingly, the defendants were entitled to qualified immunity.

     The court noted that when the associate warden reviewed the assailant's classification and allowed him to continue to be double-celled, he was aware of the inmate's extensive history of violent behavior towards inmates and staff, but he had been observed for two weeks since involvement in an incident with another cellmate, had been returned on medications to the cell unit without recommendations for single-celling, and had been housed with another cellmate for a number of days without incident.

     The court further observed that the correctional lieutenant, even if he acted negligently in failing to review the decedent's file before approving his double-celling with his assailant, would not have believed that the decedent faced an "intolerable" safety risk in the housing situation, since the two prisoners had been double-celled before without significant problems and had actually requested to be celled together again.

     Estate of Ford v. Ramirez-Palmer, #01-15769, 301 F.3d 1043 (9th Cir. 2002).

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Prison regulation prohibiting the possession of reading materials encouraging violence, hatred, or vengeance against other persons did not violate free speech rights of prisoners practicing "Christian Identity" white supremacist religion, but appeals court orders further proceedings on adequacy of due process surrounding censorship system. Prisoners' rights to special foods and communion packet to celebrate Passover holiday depended on the sincerity of their beliefs, not whether the observation of that holiday was a "major" tenet of their religion.

     Two prisoners in a Colorado correctional facility who are members of the "Christian Identity Faith," a white supremacist group which teaches that all other races and religions are inferior, filed a federal civil rights lawsuit against prison officials and employees, claiming that certain policies and practices deprived them of the right to practice their religion, discriminated against their religion, and violated their rights to free speech and due process.

     The plaintiffs specifically targeted Colorado Department of Corrections (DOC) administrative regulation 300-26, which describes the type of reading material an inmate may receive or possess consistent with the DOC's goals of maintaining security, good order, and public safety, as well as its goal of encouraging rehabilitation. Under this regulation, the DOC prohibits materials that an objective person could reasonably believe "encourage or endorse" violence or disorder, "hatred or contempt of other persons," or "vengeance against other persons." The regulations specifically identify as excludable any publication advocating hatred or contempt of other persons or produced or distributed by Security Threats Groups (STGs) or material advocating or depicting association or members in a STG "which is contrary to the security interests of the facility." Many of the plaintiffs' Christian Identity reading materials are alleged to have been prohibited under these standards.

     The Complaint claimed that the regulation was unconstitutionally overbroad and had been applied in a discriminatory fashion. They also claimed that it violated due process based on inadequate notice, no time limit for making the censorship decisions, and no opportunity to appeal the decisions. The plaintiffs were also upset that another administrative regulation, 800-1, had allegedly used an unconstitutional standard to exclude them from the category of a "legitimate" religious group, and that the prison had refused to provide them with a Passover meal, a communion packet, and leaven-free foods during the Passover week, or to allow them to receive Christian Identity taped religious programming. (Passover is a Jewish religious observance commemorating the biblical tale of the exodus of the Jews from slavery in Egypt, which also ties in with the Christian religion, as Christ's last supper with his disciples is said to have been a Passover meal).

     A federal appeals court found that the rules against possession of hate reading materials did not violate the plaintiffs' First Amendment free speech rights or prohibit them from practicing their religion. "We note that plaintiffs have not alleged they have been denied the main texts of their religion, including the King James Bible, Strong' Exhaustive Concordance, and Young's Analytical Concordance," the court stated.

     Allowing the plaintiffs to also receive and possess materials that "espouse hatred or contempt of others would negatively impact other prisoners, guards who must prevent any resulting animosity, and prison resources aimed at preventing violence." Further, in light of the "extreme racial tensions and violence prevalent in prisons," the appeals court stated, "such provocative materials are likely to increase the stress on prisoners, guards, and resources alike." The prisoners had not shown that there were any easy alternatives to prohibiting material that expresses hatred or contempt of others.

     While they argued that the standard should be limited to materials that "advocate" violence or are so inflammatory "as to reasonably be believed to incite violence," the court reasoned, the U.S. Supreme Court specifically stated in Thornburgh v. Abbott, 490 U.S. 401 (1989) that prison administrators are not required to limit their exclusions to materials which are "likely" to lead to violence.

     The appeals court independently reviewed the exhibits of reading materials and concluded that the prohibited materials could reasonably be regarded as publications advocating hatred or contempt of other persons or encouraging or endorsing violence or disorder. The court did, however, order further proceedings on the issue of whether the procedure for censoring the reading materials violated due process because of inadequate notice, unrestricted time period for decision, and the absence of an opportunity to be heard, since the trial court did not address those issues. It also ordered further proceedings on the undetermined issue of whether the Christian Identity Faith is a "Security Threat Group" whose materials may be prohibited.

     On the issue of the Passover celebration and the materials the plaintiffs sought for its observance, the appeals court found that the trial court, in rejecting the claim because the prisoners did not show that observance of Passover was a "major tenet" of their Christian Identity faith applied the wrong legal standard. A prisoner's belief in religious dietary practices is constitutionally protected, the appeals court stated, if the belief is "genuine and sincere" even if it is not "doctrinally required by the prisoner's religion." Once that sincerity is established, a court must then engage in an inquiry into a regulation's reasonableness under Turner v. Safley, 4822 U.S. 78 (1987). The appeals court therefore reversed the trial court's summary judgment on this issue for the defendants, ordering further proceedings.

     Ind v. Wright, #01-1338, 44 Fed. Appx. 917 (10th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

A warrantless search of a convicted prisoner's cell, even though carried out to seek evidence of an uncharged crime rather than for any purpose related to prison security, did not violate his Fourth Amendment rights against unreasonable searches and seizures.

     A New York prisoner serving a sentence for murder and manslaughter was interrogated by police detectives at a correctional facility concerning an unsolved homicide committed prior to his incarceration. The detectives then asked prison officials to search the prisoner's cell for all written materials, which was done while the prisoner was elsewhere being interrogated.

     Prison officials confiscated all written materials in the prisoner's cell and in the following week, looked through the papers for anything that might connect him to the unsolved murder, but found nothing. The papers were then returned. Prison officials acknowledged that the search was carried out solely to assist the detectives in their investigation of a crime, and was conducted without a warrant, and without an intended purpose related to institutional security.

     The prisoner filed a federal civil rights lawsuit contending that the search and seizure violated his Fourth Amendment rights and was unreasonable. He heavily relied on a prior case, United States v. Cohen, 796 F.2d 20 (2nd Cir. 1986), in which the court stated that "no iron curtain separates prisoners from the Constitution," and "the loss of [constitutional] rights is occasioned only by the legitimate needs of institutional security.

     A jury awarded the plaintiff prisoner $1 in compensatory damages and $400 in punitive damages on a claim that prison officials retaliated against him for the exercise of his Fifth Amendment right to remain silent by refusing to confess during the interrogation. The trial court dismissed the prisoner's Fourth Amendment claim, however.

     Upholding that result, a federal appeals court concluded that a convict has no expectation of privacy in his prison cell, citing Hudson v. Palmer, 468 U.S. 517 (1984). In Hudson, the Court found that the plaintiff, a convicted prisoner, did not have a legitimate expectation of privacy in his prison cell, rejecting his challenge to a "shakedown" search of the cell which he claimed was conducted solely to harass him and not for any reason related to institutional security. "The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions."

     The appeals court noted that the Court in Hudson had also made it "clear" that "security is not the sole relevant institutional interest of the prison system." The "curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction."

     The appeals court also noted that the plaintiff prisoner in its own prior decision in Cohen was a pre-trial detainee, rather than a convicted prisoner, and that "certain penological interests--such as punishment and rehabilitation--do not apply to pre-trial detention."

     Willis v. Artuz, #00-0176, 301 F.3d 65 (2nd Cir. 2002).

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Prisoner allegedly sexually assaulted in her room by a correctional officer a day after he fondled her and threatened to "get" her "tomorrow" presented a genuine issue of fact as to whether she made cottage manager aware that she reasonably feared a sexual assault by the officer and whether cottage manager acted reasonably in response. Prisoner also presented genuine issue as to whether "gag order" was imposed as a pretext to make her stop claiming that she had been assaulted.

     A female inmate in Ohio claimed that she complained to a cottage manager after a correctional officer came into her room, fondled her breasts, and made lewd comments threatening to "get" her "tomorrow," but that no actions were taken to protect her. The same correctional officer is alleged to have returned the next day and sexually assaulted her. The prisoner further claims that when she reported the assault, she was punished by being placed in solitary confinement.

     The prisoner sued the former governor of the state, the prison warden, an investigator, and the cottage manager, claiming deliberate indifference to the risk of sexual assault and alleged denial of adequate medical care.

     A federal trial court easily found that there was no evidence supporting liability for the former state governor, rejecting the prisoner's argument that he had a duty to launch an investigation of the situation. While the prisoner's mother made a phone call during which she spoke to one of the governor's aides and complained about the incident, there was nothing to show that the aide ever informed the governor of the call, or otherwise had knowledge of the incident, and no evidence that the governor had been personally involved in any way in the alleged denial of medical care to the prisoner while she was in segregation.

     The trial court also rejected a number of claims against the prison warden and an investigator alleging inadequate heat, bedding, sanitation, or access to medical care while the plaintiff was in segregation, as the plaintiff also failed to show their personal involvement in these denials or personal knowledge. To the contrary, as soon as the warden was made aware of the prisoner's alleged need for medical attention, she was transferred to the infirmary.

     At the same time, the court rejected a motion for summary judgment by the cottage manager, finding that there were genuine issues of material fact as to whether the prisoner made the cottage manager aware that she reasonably feared a further sexual attack by the correctional officer. There was also a genuine issue as to whether the cottage manager had acted reasonably once made aware of the inmate's fear of assault.

     The court also ordered further proceedings on the prisoner's due process claim against the warden and investigator, based on her contention that they ordered her placed in segregation on a pretext that she had disobeyed a gag order during the investigation. The court stated that there was evidence from which a jury could possibly find that the gag order was, in fact, imposed in an attempt to make the prisoner stop claiming that she was assaulted, rather than for the purpose of protecting the integrity of the investigation.

     Ortiz v. Voinovich, 211 F. Supp. 2d 917 (S.D. Ohio 2002).

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Pretrial detainee allegedly sodomized by four prisoners in his cell sufficiently alleged deliberate indifference by prison officials based on the failure to take measures to classify and separate inmates based on security risks.

     A pretrial detainee was housed in a prison that allegedly failed to take measures to separate and house inmates according to their safety needs and the security risks they posed. His housing unit consisted of a corridor of two-prisoner cells, with only one housing officer assigned to the building on the day of the complained of incident. The prisoner was lying on his bed inside his cell when four inmates from his housing unit allegedly approached him, threw a blanket over his face, held him by force, and threatened to kill him if he said anything. They then proceeded to sodomize him for approximately a half an hour to an hour.

     The detainee claimed that no officer intervened during the attack, and that following the attack, he was unable to move and remained in his bed until he was taken to the hospital. The one housing officer in the building was allegedly at a separate enclosed area at the entrance to the housing unit during the assault. From this location, he allegedly could not supervise the inmates inside the cells, which could only be done by patrolling the walkway or corridor, which he did not do.

     The detainee filed a federal civil rights lawsuit against various correctional officials at the facility for failure to protect him. The trial court granted a motion to dismiss, on the basis that the plaintiff failed to state a due process claim because they "failed to allege" that the defendants "deliberately intended" to deprive him "of his life, property, or liberty interests."

     Reversing, a federal appeals court found that the trial court applied the wrong legal standard. In the context of a failure to protect the detainee against the risk of sexual assault, the plaintiff was not required to show that the correctional officials engaged in intentional misconduct, but rather only that they acted with "deliberate indifference" to a substantial risk of serious harm.

     Here, the plaintiff alleged that the defendants failed to adequately classify inmates, to separate them according to their safety needs, and to supervise them. He further claimed that the "defendants knew that the failure to take such steps would increase the risk of violence among inmates; despite this knowledge, defendants failed to take steps that would decrease the danger, and this resulted in the sodomy" of the detainee by other prisoners.

     The appeals court found these claims sufficient for the prisoner to proceed with his claims against the defendants for violation of his constitutional rights.

     Calderon-Ortiz v. Laboy-Alvarado, #01-2469, 300 F.3d 60 (1st Cir. 2002).

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Access to Courts/Legal Info

     Prisoner could not pursue his claim against prison official for alleged interference with his legal mail when he failed to show any actual injury to his right of access to the courts. Clemons v. Woods, No. 01-2284, 40 Fed. Appx. 23 (6th Cir. 2002).

Administrative Liability

     Commissioner of Department of Corrections could not be held liable for alleged assaults on prisoner by correctional employees or for alleged retaliation against prisoner for complaining when no personal involvement in the incidents was shown. Letters of complaint that prisoner sent to his office were merely forwarded by staff members to the appropriate investigators. Garvin v. Goord, 212 F. Supp. 22d 123 (W.D.N.Y. 2002).

Death Penalty

      Prison regulation that prevented journalists who attended and reported on executions from viewing the lethal injection procedures prior to the actual administration of the injection violated the public's First Amendment right to view executions from the time the condemned prisoner was first brought into the execution chamber. California First Amendment Coalition v. Woodford, #00-16752, 299 F.3d 868 (9th Cir. 2002).

Defenses: Collateral Estoppel

     A prior verdict in favor of the defendants in the prisoner's state court lawsuit alleging that correctional officers assaulted him while transporting him to court barred him from pursuing a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 over the same incident claiming that the officers' use of force was excessive. Goodson v. Sedlack, 212 F. Supp. 2d 255 (S.D.N.Y. 2002).

Diet

     Court rejects prisoner's claim that prison violated his rights by failing to feed him a diet in accord with his religious belief that he should only eat "starchless and green, leafy vegetables" when his own attached list of foods he should eat included some foods that did not constitute "starchless and green, leafy vegetables," including an assortment of legumes and beans and white potatoes. Rhone v. Lewis, #36,210-CA, 821 So. 2d 692 (La. App. 2nd Cir. 2002).

Disability Discrimination: Prisoners (2 cases)

     Prisoner's lawsuit against state officials for disability discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C. Secs. 12131-12134 and 42 U.S.C. Sec. 1983 failed to state a claim when it merely asserted in a conclusory manner that he had been subjected to unconstitutional conditions of confinement and deprived of his federal rights, without any specifics of how this was so or how any of the named defendants were personally responsible for any such deprivations. Frazier v. Michigan, #02-1160, 41 Fed. Appx. 762 (6th Cir. 2002).

     Prisoner was not subjected to disability discrimination by allegedly being denied a job assignment and participation in the prison's educational program because of his migraine headaches. Prisoner failed to show that he was disabled as that term is used in either the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 or the Rehabilitation Act., 29 U.S.C. Sec. 701. Court also holds that ADA and Rehabilitation Act claims could not be pursued under 42 U.S.C. Sec. 1983. Battle v. Minnesota Dept. of Corrections, #02-1599, 40 Fed. Appx. 308 (8th Cir. 2002).

Furlough

     Courts exceeded their statutory authority by granting short-term releases to three inmates in separate cases allowing them to attend to personal business, which constituted modifications of sentencing not authorized by a specific provision of state law, as did an order that a prisoner be released from custody to spend the remainder of her sentence in treatment facility. The judges arrogated to themselves the power to grant prison furloughs--a power that could only be exercised by correctional officials, improperly interfering with matters that are, "by law, entrusted to the discretion of the Department of Corrections." State of Alaska v. Felix, Nos. A-7885, A-7886, A-07887, 50 P. 3d 807 (Alaska App. 2002).

Inmate Funds

     Oklahoma trial court could properly require plaintiff inmate who filed four lawsuits against prison personnel for alleged violation of his claimed "constitutional right" to smoke to make partial payments of court filing fees over time but could not, under state law, require him to make a payment in any month where that payment would "completely deplete" the prisoner's inmate account. Mahorney v. Moore, No. 96,726, 50 P.3d 1128 (Okla. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies (2 cases)

     Prisoner was required to exhaust available administrative remedies before beginning his federal civil rights lawsuit over officers' alleged failure to protect him from assault by other prisoners. Dismissal of prisoner's lawsuit would be without prejudice, allowing him to exhaust remedies and then refile the lawsuit, when prisoner filed his lawsuit before the U.S. Supreme Court made it clear, in its decision in Porter v. Nussle, 122 S. Ct. 983 (2002) that the remedies exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) "applies to all inmate suits about prison life, whether they involved general circumstances or particular episodes." Peoples v. Beldock, 212 F. Supp. 2d 141 (W.D.N.Y. 2002).

     Prisoner who failed to comply with a grievance procedure established by the Massachusetts Department of Corrections could not proceed with his federal civil rights lawsuit claiming that correctional officers assaulted him. Plaintiff was required, under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act, to exhaust available administrative remedies before filing suit. Foster v. Murphy, 211 F. Supp. 2d 354 (D. Mass. 2002).

Prisoner Death/Injury (2 cases)

     Federal trial court did not have subject matter jurisdiction over prisoner's state law negligence claim against Illinois state prison officials seeking to recover for his injuries from being shocked by allegedly exposed electrical wires in showers. Defendants were entitled to sovereign immunity under Eleventh Amendment which state had asserted by barring such claims except in the Illinois Court of Claims. Federal civil rights claim also failed, as prisoner failed to show that defendants knew about the wires but were deliberately indifferent to their exposed presence. Turner v. Miller, #01-3413, 301 F.3d 599 (7th Cir. 2002).

     Mississippi prisoner could not recover damages from county under state law for her injuries from falling from top bunk bed in county jail. County was immune, under the Mississippi Tort Claims Act (MTCA), A.M.C. Sec. 11-46-9(1)(c, m), from all claims by inmate. Exception in statute for "reckless disregard" in relation to police protection of a person not engaged in criminal activity at the time of the injury did not apply to prisoner's claim that the jailer's conduct of not placing her in the "drunk tank" was "reckless disregard" for her safety and well being. Liggans v. Coahoma County Sheriff's Department, No. 2001-CA-00860-SCT, 823 So. 2d 1152 (Miss. 2002).

Privacy

     Correctional employees actions in strip searching a male prisoner in front of female employees was not cruel and unusual punishment in violation of the Eighth Amendment. Prisoner was strip searched for his and the officers' safety after he did not respond to requests for his attention. Dye v. Lomen, #01-3766, 40 Fed. Appx. 993 (7th Cir. 2002).

Private Prisons

     County could be held liable under 42 U.S.C. Sec. 1983 for alleged customs and policies of private corporation hired to manage and operate a county detention facility. Prisoner could pursue municipal liability claim based on claim that corporation failed to properly train its employees to prevent their use of brutality against prisoners. Prison Litigation Reform Act (PLRA) exhaustion of remedies requirement, 42 U.S.C. Sec. 1997e, applies to cases in which a private company is operating a prison or jail. Herrera v. County of Santa Fe, 213 F. Supp. 2d 1288 (D.N.M. 2002).

Procedural: Discovery

     Trial court properly granted summary judgment without further delay to correctional employees on prisoner's lawsuit alleging that they failed to provide him with a safe environment or adequate medical care when prisoner failed to demonstrate how any additional discovery would lead to the production of evidence that would create a genuine issue of disputed material fact. Prisoner injured himself by stepping into an uncovered manhole on prison grounds and subsequently received treatment including surgery for a spinal injury. Lockaby v. L.L. Young, #02-6033, 42 Fed. Appx. 313 (10th Cir. 2002).

Racial Discrimination

     Black prison inmate's equal protection claim, arguing that his rights were violated when he was not returned to an area of the prison after completion of an investigation into an escape attempt, while white prisoners were returned there, was frivolous. The plaintiff prisoner himself admitted that he "did not want to be returned" there after the investigation was completed. Williamson v. Campbell, #02-5104, 44 Fed. Appx. 693 (6th Cir. 2002).

Telephone Access

     Limits on pretrial detainee's telephone privileges in segregation before and after disciplinary hearings did not violate his First Amendment rights. Detainee did not show that his placement in segregation before and after hearings was for a punitive reason rather than reasons of institutional security. Detainee also did not show that any actual injury was caused by his having to use the telephone "while it was noisy or in the evening," instead of directly before and after hearings. Whitfield v. Dicker, #01-3605, 41 Fed. Appx. 6 (8th Cir. 2002).

Work/Education Programs

     Prisoner's alleged confinement to his cell during working hours for refusal to accept a prison work assignment did not violate his rights. Such confinement did not constitute an "atypical and significant hardship" triggering a right to due process before the sanction was imposed. Mayberry v. Starr, #01-2563, 44 Fed. Appx. 679 (6th Cir. 2002).

Work Release

     Pennsylvania prisoner did not have a protected liberty interest in a work release assignment under either the due process clause of the 14th Amendment or Pennsylvania state law, which barred him from pursuing a lawsuit that prison officials violated his rights by removing him from the work release program with either notice or a hearing. McGoue v. Janecka, 211 F. Supp. 2d 627 (E.D. Pa. 2002).

     Article: "Rape and Sexual Misconduct in the Prison System: Analyzing America's Most 'Open' Secret," by Cheryl Bell, et al., 18 Yale L. & Policy Rev. 195 (1999). (.pdf format).

     Article: "The Impact and Recovery of Prison Rape," by Robert W. Dumond, Franklin Pierce College/Consultants for Improved Human Services. (2001) (.pdf format).

     Book: Protecting Your Health and Safety: A Litigation Guide for Inmates, by Robert E. Toone. The complete text of this book is available on-line. The book is designed for inmates who are not represented by an attorney. Bound copies of the 328-page book are available for $10 from the Southern Poverty Law Center, P.O. Box 548 Montgomery, Alabama 36101-0548. Their website states that "upon request, prison law libraries will be sent a copy at no cost."

     Proposed Legislation: Proposed Prison Rape Reduction Act of 2002, (S. 7619, H.R. 4943) (.pdf format). The U.S. Senate Judiciary Committee hearing conducted July 31, 2002 is available on-line.

     Publication: Budget Guide for Jail Administrators. by Mark D. Martin, 2002. U.S. Department of Justice, National Institute of Corrections. Three parts, all available on-line in .pdf format. Part 1: Developing the Budget. Discusses the elements of an effective process for budgeting both capital and operational jail expenses. Outlines the roles of key participants and methods for assessing needs, estimating costs, and documenting the budget request. Includes sample forms and worksheets. 48 pp. Accession no. NIC-017626. Part 2: Managing the Budget. Provides an overview of jail budget management, including key aspects of management, the jail administrator's responsibilities, and useful strategies. 35 pp. Accession no. NIC-017628. Part 3: Beyond Budget Allocation - Sources of Funding and Services. Describes strategies for identifying, securing, and coordinating jail resources from multiple sources, both internally and externally. Emphasizes nontraditional funding approaches outside the local tax-funded budget. 35 pp. Accession no. NIC-017627.

     Report: Sexual Misconduct in Prisons: Laws, Remedies, and Incidence, U.S. Department of Justice, National Institute of Corrections (May 2000). (.pdf format).

     Report: Investigating Allegations of Staff Sexual Misconduct with Inmates, U.S. Department of Justice, National Institute of Corrections (2000). (downloadable either in sections or the entire document, all in .pdf format).