FEATURED CASES

WITH LINKS TO THE OPINIONS

Sending notice of a proposed forfeiture of property to an incarcerated prisoner via certified mail in care of the prison where he was incarcerated is adequate to satisfy due process of law when the prison had a procedure for delivering mail to inmates; the government must only attempt to provide actual notice, there is no requirement that actual notice must be received.

     While a man was in prison on federal drug charges, the FBI began an administrative process to forfeit cash that law enforcement officers had seized when they executed a search warrant for the home where he was arrested. Applicable law at the time required the agency to send written notice of the seizure and the applicable forfeiture procedures to each who appeared to have an interest in the property. 19 U.S.C. Sec. 1607(a).

     The FBI therefore sent a notice by certified mail addressed to the prisoner in care of the prison where he was incarcerated, as well as to the address of the residence where he was arrested and to an address in the town where his mother lived. No response was received and the money was turned over to the U.S. Marshals Service.

     The U.S. Supreme Court has found that this procedure was acceptable, rejecting the argument that it violated the prisoner's due process rights. The government agency seeking to forfeit an individual's property rights must attempt to provide actual notice, the Court reasoned, in a 5-4 decision, it does not necessarily have to successfully provide it. No "heroic efforts" by the government are required to assure the notice's delivery, and there was no requirement that the government substitute proposed procedures that would have required verification of receipt for those in place at the prison while the inmate was incarcerated there.

Dusenbery v. United States, No. 00-6567, 2002 U.S. LEXIS 401.

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U.S. Supreme Court upholds warrantless searches of a probationer's home without probable cause as a condition of probation; evidence uncovered in one such search, conducted by a sheriff's detective with reasonable suspicion, did not need to be suppressed.

     The U.S. Supreme Court, in a 9-0 decision, has rejected arguments that there was something improper about requiring that a man sentenced for a drug offense in California agree to submit to a search at anytime by any probation or law enforcement officer. A sheriff's deputy, acting with reasonable suspicion, subsequently searched the probationer's apartment and found evidence later used to indict him for conspiracy to commit arson, for possession of an unregistered destructive device, and for being a felon in possession of ammunition.

     A U.S. appeals court ruled that the evidence gathered in this manner had to be suppressed, even with reasonable suspicion, because the search was for an investigatory rather than probationary purpose. United States v. Knights, 219 F.3d 1138 (9th Cir. 2000). The U.S. Supreme Court unanimously reversed this result, finding that a warrantless search in this case, supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment.

     In conditioning probation with consent to searches, the judgment in the probationer's prior criminal case had "reasonably concluded" that this condition would further the two primary goals of probation-- rehabilitation and protecting society from future criminal violations. No more than a reasonable suspicion, the Court found, was required to search this probationer's house. And the same circumstances that lead to the conclusion that reasonable suspicion is constitutionally sufficient also renders a warrant requirement unnecessary, the Court concluded.

United States v. Knights, No. 00-1260, 121 S. Ct. 1955 (2001).

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Putting prisoners on "controlled-feeding status" as discipline for disruptive conduct such as throwing food or utensils did not violate inmate rights under Illinois or federal law.

     Prison officials at an Illinois correctional facility instituted a procedure under which some inmates were put on "controlled-feeding status" for disciplinary purposes after they engaged in certain kinds of misbehavior such as throwing food items or utensils, failing to properly discard uneaten food, or improperly disposing of human waste. These prisoners were served a number of regular food items combined into a loaf and served only with water.

     Two types of such loaves were provided, one with meat and one with vegetarian food for inmates with dietary restrictions. The regular loaves had ground beef, spinach, carrots, potato flakes, and dried milk powder blended together and baked into a 1-1/2 pound loaf. Vegetarian loaves were the same, but lacked the meat or milk powder and instead had margarine added. The loaves were served without utensils.

     Prisoners impacted by the procedure filed a lawsuit in state court seeking to enjoin the use of controlled feeding. In their affidavits they complained that they had received no notice or hearing before being placed on the special diet. Plaintiff prisoners also claimed that the loaves reminded them of dog food, said that they were unable to eat it, and claimed that they suffered headaches and other problems because of their failure to eat.

     In response, prison officials submitted affidavits claiming that some of the plaintiffs had gained weight over a period that included when they were on controlled-feeding status. Further, a licensed dietitian at the facility stated that three servings of the loaf exceeded National Academy of Sciences recommended minimum nutritional and caloric requirements, with the sole exception of vitamin B-12, which the body naturally produces.

     The trial court granted the defendants summary judgment. An intermediate state appeals court upheld this result, rejecting arguments that the use of this diet violated either state or federal law.

     While the plaintiffs argued that the use of controlled feeding status violated a state statute, 730 ILCS 5/3-8-7 which prohibits disciplinary restrictions on diet, the court ruled that the statute only prohibited the prison from denying inmates nutritionally adequate food for disciplinary reasons. Further, the court reasoned that the legislature had not intended to prohibit prisons from removing utensils from prisoners who used them to throw feces or as weapons, as long as prisoners still got "nutritionally comparable" food that did not require utensils.

     The appeals court also found no violation of the Eighth Amendment prohibition on cruel and unusual punishment. The Eighth Amendment only requires, the court stated, that prisoners get food which is "adequate" to maintain health. It does not have to be "tasty" or aesthetically pleasing. Any weight loss which several prisoners stated they experienced could be attributed to their own refusal to eat, and there was no evidence that prison officials were "deliberately indifferent" to inmate health or welfare.

     The court also rejected the argument that the prisoners were entitled to a hearing before being placed on controlled-feeding status. Losing the right to choose your own meals, the court reasoned, is one consequence of imprisonment, and the plaintiffs therefore did not have a protected liberty interest in being fed "regular" food. The failure to provide a pre-deprivation hearing, therefore, did not violate their due process rights.

Arnett v. Snyder, 2001 Ill. App. LEXIS 819 (4th Dist.).

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     Editor's Note: See also LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993) ("nutraloaf" served to prisoners, while "unappetizing" was not cruel and unusual punishment when it was nutritionally adequate). The court decision reported above distinguished the prior Illinois case of People v. Joseph, 434 N.E.2d 453 (Ill. App. 1982), the only prior case ruling that a diet was violative of the Illinois statute the prisoners cited. The appeals court noted that the bread-and-water diet involved in Joseph was found to be nutritionally inadequate.

States could not be sued in federal court for money damages under the Americans With Disabilities Act, but that state prison officials, in their official capacities, are not immune from liability under the Rehabilitation Act of 1973, another federal law prohibiting disability discrimination, when they accepted federal funds. Prisoner with hearing disability could pursue his claims for injunctive relief under both statutes, and his money damages claims under the Rehabilitation Act.

     A prisoner in a Michigan correctional facility sued various correctional officials in both their individual and official capacities for disability discrimination in the furnishing of public services. As a hearing impaired person serving a sentence for criminal sexual conduct, he claims that the defendants failed to provide him with accommodations that would allow him access to group and individual sex offender therapy and to substance abuse therapy.

     The plaintiff is required to participate in sex offender and substance abuse therapy, and also desired to participate in sex offender therapy because a Michigan state agency charged with the protection of children would not allow him to return to his home and to his children after his release on parole without completing this therapy.

     He brought his claims under the Americans With Disabilities Act, 42 U.S.C. Sec. 12101, et seq. (ADA), the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, and the Michigan Persons with Disabilities Civil Rights Act, M.C.L. Sec. 37.1301 et seq. He sought both money damages and injunctive relief compelling the defendants to provide him with access to certified hearing impaired interpreters, and ordering them to provide him with services such as sex offender and substance abuse therapy with a certified interpreter, a TDD (telecommunications device for the deaf) unit, and a flashing alarm clock.

     The trial court found that he could pursue his claims for injunctive relief under both federal statutes, but that he could not pursue his money damages claims under ADA against the state correctional officials in their official capacity because Congress exceeded its constitutional authority by subjecting states to suits in federal courts for money damages under the ADA.

     At the same time, the court ruled that the state officials, by accepting federal funds for their programs, came within the provisions of the Rehabilitation Act, which also prohibits disability discrimination for federally funded programs, and therefore could be liable for money damages in their official capacities under that law.

     The court declined to exercise jurisdiction over the prisoner's state law claim, as there were "novel and complex" issues of state law involved, including whether the statute applied retroactively in the plaintiff's case, and these issues should be decided in state court.

Key v. Grayson, No. CIV. 96-40166, 163 F. Supp. 2d 697 (E.D. Mich. 2001).

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Pretrial detainees could proceed with due process, equal protection, and Fourth Amendment challenges to Ohio county program requiring them to reimburse government for confinement costs and booking fees.

     Pretrial detainees filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 attempting to challenge a program begun by a county which required them to reimburse the government for the cost of their confinement and for booking fees. Cash funds in their possession at the time they were taken into custody were utilized for this purpose.

     A federal trial court, while finding that individual defendants were entitled to qualified immunity, declined to grant summary judgment for the county. Because the county, rather than the State, would be responsible for any money damages judgment against the sheriff and county commissioners, it ruled that no Eleventh Amendment defense was available. The program challenged, the court noted, was not required by state law, but only voluntarily implemented by the county.

     The court found that there were genuine issues of material fact as to whether depriving the pretrial detainees of funds to pay booking fees without prior notice and hearing violated their procedural due process rights. Only if the defendants could show that the funds seized in this manner were evidence of a crime or the fruits of a crime, or that "extraordinary or exigent" circumstances existed could pretrial detainees be denied notice and a hearing before they lost the right to the funds.

     The plaintiffs' equal protection challenge was based on an assertion that similarly situated persons were treated differently, including issues of whether persons with cash on their person when taken into custody lost their funds to pay booking fees while other persons without cash, but with the ability to pay via credit card or check were not required to pay. The court found it appropriate to allow further proceedings about the details of whether the county pursued payment from all pretrial detainees.

     The court also found that the plaintiffs could pursue the issue of whether the seizure of funds in their possession at the time of their arrest, without a warrant or probable cause, violated the Fourth Amendment. While the program supposedly returned funds received from pretrial detainees later adjudicated not guilty or who had charges against themselves dismissed, the defendants acknowledged that it could take up to 4-6 weeks for those persons to receive their refund, and that such refunds did not include interest. Further, there was some evidence showing that a number of detainees in this position requested refunds but never received them.

Allen v. Leis, No. C-1-00-261, 154 F. Supp. 2d 1240 (S.D. Ohio 2001).

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Former jail inmate was foreclosed from arguing that the sexual acts she engaged in with a jailer were not voluntarily consented to when she was criminally convicted of prostitution for them. Sheriff was entitled to summary judgment in plaintiff's lawsuit alleging negligent hiring, supervision and retention, as well as vicarious liability for alleged sexual assault.

     When she arrived at a county jail, a female prisoner allegedly learned from another inmate that she had been having sex with a jailer in exchange for cigarettes. She herself later allegedly had sex with the jailer in exchange for cigarettes, Xanax pills (an anti-anxiety drug), and other items. She also later received extra privileges, including more cigarettes, soda, pizza, movies, and permission to stay up past lockdown, and on several other occasions allegedly had sexual contact with the jailer in exchange.

     The prisoner also later claimed that on two occasions the jailer had allowed a jail trustee into her cell and she first had sexual intercourse with him and then performed oral sex on the jailer. In all, she allegedly had intercourse with the jailer once and performed oral sex on him five times. After five of those six sexual encounters, she received cigarettes from him. The prisoner, the jailer, and another female prisoner were all charged with crimes due to their actions. The prisoner was found guilty by a jury of prostitution and her conviction was upheld on appeal. Heil v. State, 742 N.E.2d 39 (Ind. Ct. App. 2000).

     She later filed a lawsuit for damages against the county sheriff, alleging that she had been sexually assaulted by the jailer, that the sheriff should be held vicariously liable for that, and that the sheriff should also be held liable for negligently hiring, retaining, and supervising the jailer.

     Granting the defendant sheriff summary judgment, an intermediate Indiana appeals court ruled that, since the prisoner had received a "full and fair opportunity" to litigate the issue of whether her sexual contact with the jailer was voluntary during her criminal trial, her conviction for prostitution barred her current claims, since the prostitution conviction meant that she had voluntarily consented to the sex acts with the jailer.

     Indeed, at her criminal trial, she herself had testified that she had sex with the jailer in exchange for cigarettes, that she was in "agreement" with the exchange, and that she did not complain about it to anyone at the jail or put up any resistance to him.

Pritchett v. Heil, No. 56A03-0103-CV-72, 756 N.E.2d 561 (Ind. App. 2001).

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Prisoner had to exhaust available administrative remedies before pursuing his federal civil rights lawsuit claiming that he was subjected to repeated harassment by prison officials in retaliation for his success in winning a prior lawsuit against the prison health services director for refusing to authorize his liver transplant.

     A Wisconsin inmate won a lawsuit against the department of correction's director of health services for unreasonably refusing to authorize a liver transplant for him. After this success, he claims that he was harassed repeatedly by departmental officials. This harassment allegedly included hostility by correctional officers and a dramatic increase in the number of misconduct reports issued against him. The large number of these reports ultimately resulted in his transfer to a maximum security prison.

     The inmate filed a federal civil rights lawsuit claiming that the defendants' conduct amounted to retaliation against him for exercising his First Amendment right to bring a lawsuit related to his confinement. He sought both money damages and an injunction barring his transfer to the maximum security prison.

     The trial court denied the injunction and dismissed the lawsuit on the basis that the plaintiff prisoner had not exhausted his available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a).

     A federal appeals court upheld this result, ruling that claims of retaliatory harassment by prison officials towards an inmate were allegations of "prison conditions" requiring the plaintiff to exhaust available remedies. It also found that the state of Wisconsin's Inmate Complaint Review System (ICRS) provided an available administrative remedy for him to use.

     The appeals court noted that federal courts have "divided sharply on the issue of whether the term 'prison conditions'" includes "discrete tortious acts like harassment, beatings and other kinds of excessive force." It stated its own belief that "acts of individual prison officials outside the scope of official prison policy, whether governed by the Eighth Amendment or the First, are within the realm of 'harassment made possible by the correctional environment,' and thus subject to the exhaustion requirement."

Johnson v. Litscher, #00-2978, 260 F.3d 826 (7th Cir. 2001).

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     Editor's Note: In prior decisions, the Third and Sixth Circuits have concluded that excessive force and assault claims are subject to Sec. 1997e(a)'s exhaustion requirement. See Booth v. Churner, 206 F.3d 289, 293-98 (3d Cir. 2000), aff'd on other grounds, 121 S. Ct. 1819 (2001) [click here for earlier article on that case], and Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999). The Second Circuit has held to the contrary, in a case accepted for review by the U.S. Supreme Court. Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), cert. granted sub nom. Porter v. Nussle, 121 S. Ct. 2213 (2001). A prior Seventh Circuit decision, Smith v. Zachary, 255 F.3d 446 (7th Cir. 2001) held that the term "prison conditions" includes actions like alleged beatings by correctional officers.

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Prisoner sufficiently exhausted his administrative remedies for his grievances claiming that he had been sprayed with pesticides in a prison housing unit, even though he had not specifically named the defendants in his lawsuit in his grievances. The grievances alleged the relevant factual circumstances, and requested the identities of the individuals directly responsible for the spraying.

     A prisoner in a California prison filed a federal civil rights lawsuit against a number of prison officials alleging that they sprayed pesticides into an inhabited prison housing unit while he was there and were deliberately indifferent to his serious medical needs.

     The defendant officials asked the trial court to dismiss the lawsuit on the basis of the prisoner's alleged failure to exhaust his available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). While he had pursued administrative grievances in the prison concerning the alleged pesticide spraying, he had not named the defendants individually in his grievances.

     The trial court rejected this reasoning and found that the inmate, through pursuing his grievances about the pesticide spraying, had sufficiently exhausted his available administrative remedies to permit him to now proceed with his lawsuit. The court noted that the grievances filed presented relevant facts about the complained of circumstances and incidents and requested the identities of the individuals directly responsible for it.

     Nothing, the court reasoned, indicated that the defendant officials would have done anything differently if the prisoner had pursued more specific claims against them individually in the grievances.

     "In other words, plaintiff's grievances were sufficient under the circumstances to put the prison on notice of the potential claims and to fulfill the basic purposes of the exhaustion requirement. As long as the basic purposes of exhaustion are fulfilled, there does not appear to be any reason to require the prisoner plaintiff to present fully developed legal and factual claims at the administrative level."

Irvin v. Zamora, No. 99CV2350, 161 F. Supp. 2d 1125 (S.D. Cal. 2001).

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Prison psychologist had no legal duty under California law to disclose prisoner's confidential communications that indicated a possible risk of harm to plaintiff prisoner from other inmates or to take measures to protect him from possible assault. Psychologist did not act with "deliberate indifference" to prisoner's safety and therefore could not be held liable for the injuries he suffered when other prisoners attacked him.

     An inmate in a federal prison in California was attacked by another prisoner and suffered an injury which required the surgical removal of his left eye. He later claimed that prior to the attack he provided information to prison officials, specifically to a prison psychologist, which should have put them on notice of an impending attack on him by other prisoners. He therefore sought damages in a federal civil rights lawsuit against the U.S. government and the psychologist for allegedly violating his constitutional rights and being negligent in failing to protect him.

     The psychologist had provided counseling to the inmate for some time, and it included crisis prevention through individual and group psychotherapy, and focused on the prevention of self-harm and suicide and management of his symptoms of psychosis and depression. During the counseling sessions, he allegedly requested an emergency session at one point, telling her that he had been confronted and intimidated by a group of inmates who demanded that he allow another prisoner to move into his cell.

     He claims that he told the psychologist that he was afraid that he would be attacked if he did not agree. In response to her question as to what he wanted her to do, he said that "I don't know. I just need help." She later stated that she did not believe, at that time, that violence against him was likely and would have pursued several avenues to protect him if she had. Instead, she believed that the incident had caused the prisoner to "relive childhood traumas" during which he had been physically and sexually abused. She also believed that his communications were confidential.

     Indeed, at one point, the prisoner told her that he did not want her to disclose any information that he had given her about the confrontation with the other prisoners, because he was afraid of being labeled a "snitch." He also diagnosed himself as being "paranoid," and stated that his fears regarding the confrontation could have been misplaced.

     The court ruled that, under these circumstances, the psychologist had not acted with deliberate indifference to a known serious risk of harm, and therefore could not be held liable. Further, under California state law, the psychologist did not have a legal duty to reveal the inmate's confidential communications regarding a possible risk of injury to him in order to protect him.

Swan v. United States, No. C 99-5401, 159 F. Supp. 2d 1174 (N.D. Cal. 2001).

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Prisoner's claim that officers beat him while extracting him from his cell after he was incapacitated by an electronic shock stated a claim for violation of his Eighth Amendment rights; officers were not entitled to qualified immunity, as prisoner's version of the incident, if true, would violate clearly established law.

     Four Florida correctional officers appealed a federal trial court's denial of their defense of qualified immunity in a lawsuit in which a prisoner claimed that they beat him after he had been incapacitated through the use of an electronic shield to shock him. According to the prisoner's version of the incident, after the shock was administered, he was knocked into the wall and fell to the floor. Then offering no resistance, the officers are claimed to have kicked him repeatedly in the back, ribs, and side.

     The prisoner further claimed that one of the officers struck him with his fists, and that he was lifted onto his knees three times after falling, and the beating continued each time. Two of the officers allegedly watched and did nothing to stop the beating, and then one of them purportedly verbally threatened the prisoner and actively participated in the assault by knocking him to the ground several times.

     A federal appeals court upheld the denial of qualified immunity to the officers, ruling that the prisoner's claims, if true, stated a claim for violation of clearly established law, so that the officers' conduct, if as the prisoner alleged, would not entitle them to a qualified immunity defense.

     The court also noted that it is not constitutionally permissible for officers to administer a beating as a punishment for a prisoner's past misconduct. The plaintiff prisoner was on "close management status" at the time of the incident due to his history of disciplinary problems, including a conviction for aggravated assault with a deadly weapon when he had repeatedly stabbed a prison guard. The officers used the shock to incapacitate the prisoner because he refused to vacate his cell so that it could be searched. These facts would not excuse the actions which the prisoner claimed followed.

Skrtich v. Thornton, #00-15959, 267 F.3d 1251 (11th Cir. 2001).

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Removing inmate from a "house arrest" program and placing him in the general prison population after allegedly refusing to allow prisoner to present witnesses and evidence at a classification committee hearing or to let his lawyer participate was arbitrary and capricious.

     A Mississippi inmate sought habeas corpus review of a decision by a Department of Corrections classification committee to find him guilty of a rules violation and accordingly remove him from a "house arrest" program and place him in the general prison population. The terms of the program required him to be home between the hours of 8 p.m. and 8 a.m., and to leave home during the day for approved activities, such as employment and running errands during meal breaks.

     The prisoner claimed that he had been absent from his employment at a barbershop only because he was visiting his sister to take his meal break, and then went to a dry cleaner for other authorized errands. He also claimed that a note in a violation report stated that he did not work the next day was incorrect. He hired an attorney who requested that he be allowed to be present at a classification hearing, and be allowed to present witnesses and other evidence to show that the prisoner had not violated the program's rules. This request was allegedly denied, no notice was given to the attorney, and the hearing was conducted without him.

     The Supreme Court of Mississippi ruled that the failure to allow the lawyer to be present and to present witnesses and evidence at the hearing was arbitrary and capricious, particularly since no reason was given for these decisions. It further ruled that the trial court erroneously refused to allow the inmate's attorney to make a proffer of the evidence showing that the inmate did not violate the rules of the "house arrest" program.

     The court also explicitly overruled a prior intermediate appeals court case, Morris v. State, 767 So. 2d 255 (Miss. Ct. App. 2000), in which it was held that the administrative review procedures of the Department of Corrections are the sole means of reviewing decisions of the classification committee. The Supreme Court of Mississippi stated that "this cannot be correct," and that the state legislature, in Miss. Code Ann. Sec. 47-5-807 provided for judicial review of such decisions.

     The court ordered that the trial court make a factual determination, after hearing evidence, of whether the prisoner violated the terms of the house arrest program, and then, if he is found to have complied, vacate the decision of the classification committee.

Edwards v. Booker, #2000-CA-00283-SCT, 796 So. 2d 991 (Miss. 2001).

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Prisoner suffering from severe chronic asthma stated a claim for deliberate indifference to his serious medical needs by alleging that he was exposed to high levels of environmental tobacco smoke, when prison officials failed to enforce no-smoking rules in the area in which he was housed.

     A twenty-seven-year-old male prisoner in Wisconsin correctional facility suffered from severe chronic asthma, and sued prison officials, claiming that his condition was made worse by exposure to environmental tobacco smoke ("ETS"). The trial court declined to dismiss this claim, and an appeals court found that the medical record reflected that the prisoner's asthma was severe and that he was "allergic" to smoke.

     Despite the plaintiff prisoner's placement in the prison's non-smoking unit with a non-smoking roommate, the inmate claimed that other prisoners in the unit smoked in violation of prison policy because the officers were frequently not at their post to enforce the smoking ban. Additionally, because smoking is permitted in the common areas of the prison, he is unable to participate in programs that would enhance his chances of being paroled.

     The prisoner further claims that exposure to tobacco smoke required him to increase his daily asthma medication dosages, and that prison officials who received his multiple grievances about the smoke were deliberately indifferent to his health, rejecting or dismissing all of his complaints.

     A federal appeals court rejected the defendants' motion for qualified immunity. It found that the plaintiff had adequately alleged that his current and future health had been endangered because of his chronic asthma and that the alleged conduct by the defendants had been clearly established as wrongful by prior caselaw, citing Helling v. McKinney, 509 U.S. 25 (1993).

     "It is not unreasonable to assume that in 1998-99, five years after the decision in Helling," the court stated, prison officials knew or should have known that even though the plaintiff was housed with a non-smoking cellmate on a non-smoking unit, in light of "his severe asthmatic condition, an environment in which ambient tobacco smoke is present could pose a serious risk to his future health, thereby constituting a violation of the Eighth Amendment."

Alvarado v. Litscher, #00-3959, 267 F.3d 648 (7th Cir. 2001).

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Correctional officer and protective custody unit manager could be liable for failing to protect biologically male prisoner suffering from gender identity disorder, and appearing to be a woman, from physical assault from another inmate in an all-male prison.

     A biologically male inmate at an Ohio prison had been diagnosed with a gender identity disorder and had feminine characteristics. The prisoner had the appearance of a woman and dressed as one, but had been placed in an all-male prison. The prisoner was placed in a protective custody unit to provide protection from "predation by other inmates."

     Another prisoner ultimately physically attacked the female appearing inmate. The alleged assailant was housed in the same unit to protect him from other inmates against whom he testified regarding their involvement in a 1993 prison riot, and he also had a history of attacking other prisoners. He hit the other prisoner on the back of the head as he walked by the plaintiff's cell. The plaintiff later claimed that he spoke with several prison employees and gave details about this attack, as well as the assailants threats to kill him.

     The assailant later entered the plaintiff's cell while other inmates were at dinner, attacked him again and again threatened to kill him. A correctional officer caught the assailant and wrote up a conduct report. The injured prisoner went to the medical clinic to be examined, and while he was gone, the assailant was permitted to leave his cell for a shower. When the plaintiff later returned to his cell, the assailant returned, having been allowed out of his cell to obtain a mop, which was not permitted under the rules for someone on cell isolation. Another assault then occurred, and the officer on duty was unable to stop this attack by herself, so that the plaintiff was injured before more help could be summoned.

     The injured prisoner brought a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 against the warden, the manager of the protective custody unit, the shift supervisor on duty when the final assault occurred, and the correctional officer on duty in the unit when the assault occurred. Judgment in favor of the warden was entered by the trial court, but it also denied qualified immunity to the other three defendants.

     A federal appeals court granted qualified immunity to the shift supervisor but not to the other two defendants. The court noted that the shift supervisor's actions were based on information received from the unit manager and that it was only reported to him that the assailant had "harassed" the plaintiff, not that an actual physical assault had occurred. In addition, he asked the unit manager whether segregation of the assailant was required, and was told that it was not. His order that the assailant be kept in cell isolation was an action intended to prevent any assault, even though it proved not to do so.

     The appeals court stated that it could not hold as a matter of law that the other two defendants were entitled to qualified immunity, as there were genuine issues of material fact as to how detailed the unit manager's information and knowledge concerning the problems between the two inmates was. As to the correctional officer on duty in the unit, there was a genuine dispute as to whether she was deliberately indifferent to the plaintiff's safety when she let the assailant out to go to the shower or allowing him to walk by the plaintiff's cell to retrieve a mop.

     While a jury might find the correctional officer's conduct to be "simply negligent" it might also find that allowing the assailant out of his cell that day under the circumstances was "not a reasonable response to the admittedly known risk to plaintiff."

Doe v. Bowles, No. 00-3159, 254 F.3d 617 (6th Cir. 2001).

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Editor's Note: Of possible interest to correctional facilities with prisoners suffering from gender identity disorders are the Standards of Care for Gender Identity Disorders (Version 6) published by the The Harry Benjamin International Gender Dysphoria Association, Inc., described on its website as a "professional organization devoted to the understanding and treatment of gender identity disorders" with approximately 350 members from around the world, in the fields of psychiatry, endocrinology, surgery, law, psychology, sociology, and counseling.

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Attorneys' Fees

     Correctional defendants were not entitled to an award of attorneys' fees following summary judgment in their favor against estate of prisoner who died of pneumonia. Estate's claims for deprivation of adequate medical care were not frivolous, unreasonable or without foundation, precluding an award of attorneys' fees to the defendants under 42 U.S.C. Sec. 1988. Estate of Reynolds v. Greene County, No. C-3-99-115, 163 F. Supp. 2d 890 (S.D. Ohio 2001).

Defenses: Eleventh Amendment

     Prisoner failed to state a claim against the State of Mississippi under 42 U.S.C. Sec. 1983 for money damages as states and state agencies are not "persons" subject to such liability under the statute. Additionally, plaintiff failed to state a claim as he had not identified specific persons who he alleged violated his rights under color of state law, and other defendants he named were not even served with process. Lofton v. United States, #2000-CP-00671-SCT, 785 So. 2d 287 (Miss. 2001).

False Imprisonment

     Prisoner could not assert a claim for damages caused by his incarceration when his criminal conviction had not been set aside. Sims v. Marnocha, No. 3:00-CV-0736, 159 F. Supp. 2d 1133 (N.D. Ind. 2001), citing Heck v. Humphrey, 512 U.S. 477 (1994).

Medical Care

     Claim that prison doctors failed to provide prisoner with adequate treatment for his suffering from hemorrhoids between surgeries, during a two year period in which they performed three surgical operations stated a claim for deliberate indifference to serious medical needs. Jones v. Natesha, No. 00-C-4499, 151 F. Supp. 2d 938 (N.D. Ill. 2001).

     Prisoner was not entitled to damages in lawsuit alleging that county jail personnel performed catheterization to obtain a urine sample for medical purposes without his consent. Actions did not violate clearly established Fourth Amendment rights so that individuals were entitled to qualified immunity and there was no showing that the county had a policy or procedure that caused the alleged violation. Saulsberry v. Maricopa County, No. CIV 98-2035, 151 F. Supp. 2d 1109 (D. Ariz. 2001).

Prison and Jail Conditions: General

     Prisoner failed to show unconstitutional county jail conditions by alleging that his single blanket was inadequate to keep him warm as he slept on a mattress on the floor and that cockroaches climbed on him while he slept. The plaintiff had not complained to officers that the holding cell in which he was placed was uncomfortable and himself conceded that the jail was in the process of being treated for its insect problem. Wells v. Jefferson County Sheriff Department, No. C2-00-0077, 159 F. Supp. 2d 1002 (S.D. Ohio 2001).

     Pretrial detainee stated a claim for violation of his due process rights based on alleged exposure to unsanitary and hazardous conditions in correctional facility's shower area for a nine month period. Alleged failure to enforce rules requiring inspections and failure to order repairs performed were sufficient to show personal involvement of defendant official for purposes of the prisoner's claim. Curry v. Kerik, No. 00 Civ. 4706, 163 F. Supp. 2d 232 (S.D. New York 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Court would dismiss all of prisoner's federal civil rights claims when he had exhausted his available administrative remedies on some, but not all, of his claims. Plain language of statute requires "total exhaustion" of available remedies on all claims stated in complaint before court may allow plaintiff prisoner to proceed with action. Rivera v. Whitman, No. Civ. A.99-544, 161 F. Supp. 2d 337 (D.N.J. 2001).

Prisoner Assault: By Officers

     Force used to restrain inmate at county jail did not violate his Eighth Amendment rights when prisoner refused to go to his cell after multiple orders and struck at one official with a pencil hitting him in the neck and shoulder area between 6-10 times. Force used was momentary and inmate's injuries were minor. Pittman v. Kurtz, No. Civ. A. 99-3181, 165 F. Supp. 2d 1243 (D. Kan. 2001).

Prisoner Death/Injury

     Officer's claimed negligence in closing a door on an inmate at county jail could not be the basis of a federal civil rights lawsuit, and an alleged ninety-minute delay in seeking medical care for the injured prisoner was not serious enough to amount to deliberate indifference to his serious medical needs. Further, the county did not violate the prisoner's rights by deducting funds from his inmate trust account for the medical services he received. Breakiron v. Neal, No. 3:00-CV-2155-H, 166 F. Supp. 2d 1110 (N.D. Tex. 2001).

Prisoner Suicide

     Sheriff was entitled to summary judgment in federal civil rights lawsuit brought by prisoner's mother after he committed suicide in jail. Plaintiff mother failed to show any injury to her own constitutional rights, so she had no standing to assert any claim. Naumoff v. Old, #99-2574, 167 F. Supp. 2d 1250 (D. Kan. 2001).

Privacy

     Dismissal of female detainee's federal civil rights claim by federal trial court did not require it to also dismiss her state law privacy and assault and battery claims against jail employee for thoroughly examining her pubic hair for lice as she exited the county jail. Skurstenis v. Jones, No. Civ.A. 98-AR-2295-S, 139 F. Supp. 2d 1291 (N.D. Ala. 2001). [Prior appeals court decision regarding federal claims may be found at Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000)].

Procedural: Discovery

     County detention facility's "nursing peer review" records were relevant to possible municipal liability in lawsuit over the adequacy of medical care of a pretrial detainee who died of peritonitis, and were therefore discoverable. A provision in the California state Evidence Code, Cal. Evid. Code. Sec. 1157 providing a privilege for medical peer review records did not apply since it conflicted with federal discovery rules under Fed. Rules Evid. Rule 501, 28 U.S.C., and there is no "peer review privilege" in federal law. Additionally, as the records sought were not post-accident investigations of the detainee's death, any "self-critical analysis" privilege under federal law did not apply. Leon v. County of San Diego, No. CIV.00-CV-1292-K, 202 F.R.D. 631 (S.D. Cal. 2001).

Sexual Assault

     Prisoner awarded $1.5 million in damages for sexual assault by his cellmate. Lawsuit asserted that prison personnel were deliberately indifferent to his safety and failed to protect him. Riccardo v. Rausch, No. 99CV-372, U.S. Dist. Ct. (N.D. Ill. April 11, 2001), reported in Chicago Daily Law Bulletin, p. 21 (Dec. 21, 2001).

Strip Searches: Officers

     U.S. Supreme Court declines to review a prison employee strip search case.  A visual body cavity search of prison employees does not require probable cause, but management must a have reasonable and individualized suspicion that the employee is hiding contraband on his/her person. Although officials briefly observed the plaintiff’s vaginal and anal cavities, the search was supported by tip from previously reliable inmate-informer. Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001); cert. den., #01-277, 122 S. Ct. 260 (2001). See prior article in the July 2001, Jail & Prisoner Law Bulletin.