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Prisoner did not show that correctional facility's institutional inspector violated his right to access to the courts by refusing to issue him grievance forms which he could use to challenge his conditions of confinement when prisoner did not claim that there was no other source for the forms or that he had made other attempts to pursue his grievance.

     An inmate at an Ohio correctional institution filed a federal civil rights lawsuit against the institutional inspector at the facility, claiming that he was deprived of his right of access to the courts because the inspector, despite repeated requests, had allegedly refused to issue him "notification of grievance" forms so that he could challenge the conditions of his confinement.

     The prisoner argued that as a result of this refusal, he has been denied access to the courts because in order to challenge the conditions of his confinement in federal court, he must first exhaust his administrative remedies. Without the grievance forms, the prisoner contends, he is unable to exhaust his administrative remedies.

     Upholding the dismissal of this claim, a federal appeals court noted that the prisoner did not allege that there was no other source for obtaining the grievance form or that he "made any other attempt to obtain a form or to file a grievance without a form." Additionally, the court stated that the "decision of the chief inspector on a grievance" attached to the prisoner's complaint indicates that the prisoner was not provided with the forms due to his failure to follow the proper procedure for requesting such forms.

     He "was provided grievance forms for the requests that correctly followed the grievance procedure."

     Additionally, the appeals court held, the prisoner failed to allege a violation of his First Amendment right of access to the courts because he did not show that he suffered an "actual injury," i.e., that he was denied the opportunity to present his claims in the court or that his access to the courts was obstructed or impeded by the inspector. The prisoner also failed to allege that the inspector prevented him from pursuing a "legitimate, non-frivolous legal claim," and the record "gives no indication" whether his alleged conditions of confinement claim had any potential merit.

     Watley v. Goodman, #01-3860, 31 Fed. Appx. 169 (6th Cir. 2002).

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Prisoner adequately alleged that restrictions on his access to a prison law library violated his right of access to the courts when he claimed that the small amount of library time he was allowed resulted in the dismissal of his appeal from denial of motion for post-conviction relief as untimely.

     An Ohio prisoner sued a prison librarian and the library administrator at the facility where he is incarcerated, claiming that they violated his constitutional right of access to the courts by enforcing prison policies that restricted access to the law library to inmates who are on cell isolation. The prisoner also claimed that the administrator placed "incompetent and abusive law clerks" in the law library and that the librarian failed to ensure that he received the appropriate law library passes, which were required by inmates who desire to visit the law library while on cell isolation.

     The prisoner was placed on cell isolation for approximately six months as a result of minor rule violations, and claims that he was only allowed four to five hours per week in the law library as a result of his placement on cell isolation. Due to his restricted access to the law library, he alleges, he was prevented from filing a motion to reconsider the dismissal of his appeal from the denial of his motion for post-conviction relief.

     A federal appeals court concluded that the trial court erroneously dismissed the prisoner's lawsuit for failure to state a claim. "While it is true that 'restricted access to the law library is not per se denial of access to the courts,' a prisoner seeking relief for non-frivolous claims in the courts can bring an action where the restricted access is such that the prisoner can demonstrated an actual injury."

     In this case, the prisoner adequately alleged that he had a limited amount of time in which to file a motion to reconsider the dismissal of his post-conviction appeal. While he was in cell isolation, he was only permitted four to five hours of law library access to prepare this motion. As a result, "his motion was untimely filed and subsequently dismissed." In the absence of any showing that he was restricted access because of a physical threat that he posed to his fellow inmates and prison guards, he has established "an actual injury as a result of restricted access to the law library."

Colvin v. Schaublin, #01-3038, 31 Fed. Appx. 170 (6th Cir. 2002).

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Federal prisoner stated a possible claim against the Bureau of Prisons for violation of federal Privacy Act based on a claim that he was transferred and reclassified as a "special offender" based on false accusations of misconduct against him in alleged retaliation for his exercise of his First Amendment rights.

     In a case of "first impression," (deciding an issue for the first time), a federal appeals court ruled that a prisoner's claim that he was transferred and reclassified as a "special offender" by the Federal Bureau of Prisons in retaliation for his exercise of his First Amendment rights rather than for the reasons stated in an allegedly falsified transfer memo constituted an "adverse determination" under the Privacy Act, 5 U.S.C. Sec. 552a, which could be the basis for a possible claim for damages.

     The prisoner was transferred from one federal correctional facility to another and reclassified as a "special offender" based on a transfer memo written by several prison staff members who claimed that he had a significant documented history of harassing and demeaning staff members and was disruptive. The prisoner contends, to the contrary, that he was a "model prisoner," and did good work tutoring and educating other prisoners, so that the statements in the memo were intentionally false.

     He claims that the statements were made in retaliation for his exercise of his First Amendment rights in complaining about ethnic slurs that prison staff members allegedly made to him, calling him a "rag head," "cow worshipper," and "sand nigger."

     The reclassification made him ineligible for tutoring jobs at his new facility. He also was no longer able to receive regular visits from his ill parents at the new facility, because of the distance from his home. Further, he claimed that he was denied parole, in part because the distance made it difficult for witnesses from the first facility to travel to the new one to testify at his parole hearing.

     A claim for money damages under the Privacy Act, 5 U.S.C. Sec. 552a(g)(1)(C) requires a showing of inaccurate records kept by an agency, agency intent to willfully keep such records, proximate causation, and an "adverse determination" by the agency. The appeals court determined that, under these circumstances, the plaintiff prisoner adequately stated a claim, and that the allegation of First Amendment retaliation was sufficient to constitute an "adverse determination" which he was aggrieved by for purposes of the lawsuit. The appeals court therefore overturned the trial court's dismissal of the prisoner's lawsuit.

Toolasprashad v. Bureau of Prisons, #00-5424, 286 F.3d 576 (D.C. Cir. 2002).

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Federal appeals court by 6-5 vote rules that a prisoner serving a sentence of 100 years to life plus eleven years had no constitutional right to provide his wife with a sperm specimen that she could use to be artificially inseminated.

     An inmate in the California state prison system claimed that the prison in which he is incarcerated was violating his constitutional rights by not allowing him to provide his wife with a sperm specimen that she could use to be artificially inseminated.

     The trial court dismissed the lawsuit for failure to state a claim, ruling that a prisoner does not have a constitutional right to procreate while incarcerated. Gerber v. Hickman, 103 F. Supp. 2d 1214 (E.D. Cal. 2000). A federal appeals court, by a 6-5 majority, has now upheld that ruling, stating that the "right to procreate is fundamentally inconsistent with incarceration."

     The 41-year-old prisoner is serving a sentence of 100 years to life plus eleven years. The state Department of Corrections prohibits family visits for inmates "sentenced to life without the possibility of parole [or] sentenced to life, without a parole date" set. No parole date has been set for the prisoner and "due to the length of his sentence, no parole date seems likely." His lawsuit requested that he be allowed to be mailed, from a laboratory, a plastic container into which he would ejaculate, and then be allowed to return the container back to the lab by overnight mail. In the alternative, he requested that his lawyer be allowed to pick up the container. He offered to bear all of the costs, including any costs incurred by the correctional facility, but the prison refused to accommodate his request.

     In rejecting the prisoner's claim, the majority of the appeals court stated that "our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation."

     The court distinguished the ruling in Skinner v. Oklahoma, 316 U.S. 535 (1942), in which a right to be free of forced surgical sterilization was recognized. "The right to procreate while incarcerated and the right to be free from surgical sterilization by prison officials are two very different things." Inmates have the right to maintain their procreative abilities for "later use, not current use." Additionally, while the right to marry and "many important attributes of marriage" survive incarceration, Turner v. Safley, 482 U.S. 78, at 95-96 (1987), this does not include the inmate's right to consummate the marriage while in prison or to enjoy the other tangible aspects of marital intimacy.

     The majority found it unnecessary to reach the question of whether the prison's regulation is related to a valid penological interest, holding instead that it simply didn't violate any right the prisoner had. The court also rejected the claim that the prisoner had a right to procreate under California law while incarcerated, or that denial of his request to artificially inseminate his wife was cruel and unusual punishment in violation of the Eighth Amendment. The denial of this request the court said, "can by no means be considered a deprivation" of the "minimal civilized measure of life's necessities."

     A strong dissent by five judges on the court stated that "there is absolutely nothing in the record indicating that procreation" by itself, "the right to have a child--is fundamentally inconsistent with the fact of incarceration. The majority has cited no facts to support such a conclusion and common sense does not lead to such a result." The minority argued that the denial of marital intimacy may be inconsistent with incarceration because of security concerns, but that those security concerns do not apply to artificial insemination.

     Gerber v. Hickman, #00-16494, 2002 U.S. App. Lexis 9749 (9th Cir.).

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Paraplegic inmate was properly awarded $250,000 for deliberate indifference to his serious medical needs which resulted in him developing severe ulcers on his lower back and buttocks from failure to follow medical orders concerning his care. County policies prevented jail medical personnel from providing adequate care.

     A prisoner in a Texas county jail was a paraplegic who was paralyzed from the chest down. He was sent to the jail for a parole violation while in the care of a doctor at a hospital. He was allegedly in good health when he entered the jail, but subsequently developed severe decubitus ulcers on his lower back and buttocks.

     He sued the county, the sheriff and the jail's chief medical officer for deliberate indifference to his serious medical needs, and was awarded $250,000 in damages. A federal appeals court has now upheld that award.

     Without proper medical care, the court stated, paraplegics such as the plaintiff are at risk of developing decubitus ulcers "caused by unrelieved pressure on the body, which can be life-threatening. Various medical equipment and personal assistance used to prevent decubitus ulcers are part of basic medical training for doctors and nurses and are standard medical procedure in caring for paraplegics."

     In this case, the prisoner's doctor at the hospital phoned the county chief medical officers and expressed his concern that the jail could not adequately care for the prisoner. On a hospital transfer form sent to the jail, he stated that the prisoner required range of motion exercises twice per day, turning of his body once per hour, various medications, dressing changes twice per day, and frequent cleaning and diaper changes.

     Additionally, the supervising nurse when the prisoner came through intake at the jail objected to his detention there because she believed that the jail could not adequately meet his medical needs, but the sheriff's department overruled her decision. During intake, another nurse was allegedly unable to read the doctor's instructions on the medical transfer form. "In accordance with jail policies," the court states, the nurse did not contact the hospital to clarify the orders, resulting in the medical orders being improperly recorded. No mobility assessment was done, and no alternative placement was considered.

     Evidence in the case showed that the prisoner was placed in an infirmary cell with a bed that had a three-inch mattress lain on top of a cement slab overlaid with ceramic tiles. "The mattress often slipped off," and the prisoner fell out of bed.

     On at least one occasion, he fell off the bed and called out to the officer on duty for assistance, but was refused assistance, the court states, and filed a grievance against the officer which was rejected with the explanation that "generally inmates had to assist each other in moving from beds to wheelchairs."

     A doctor at the jail saw the prisoner and diagnosed him with Stage II decubitus ulcers, a break in the outer skin that requires immediate attention because the tissue has "begun to rot and die." He recorded this diagnosis in the prisoner's jail medical records and ordered the jail nurses to perform wet-to-dry dressing changes three times per day. Jail nurses allegedly did not follow these orders, however, because the jail policy was to provide dressing changes only twice per day. Additionally, the prisoner sometimes did not receive dressing changes this often "if he did not make it to the door of the cell in time, as required by jail policy."

     A nurse later transferred the prisoner to a solitary cell "because other inmates had begun to complain about his stench of urine and feces. This cell had no mobility supports, the court states, and on several occasions the prisoner fell to the floor and lay there for extended periods. The trial court found that the jail nurses and doctors were aware, by then, of the prisoner's ulcers, but "jail policy prevented them from doing anything more than changing his dressings twice daily and giving him medications."

     Several trips to the hospital followed for ulcers, a urinary tract infection, and worsened ulcers. The plaintiff claims that the jail personnel did not follow hospital medical orders when he was returned to their custody. Finally, at one point, a hospital doctor determined that the jail could not effectively treat the prisoner and refused to release him back to the jail.

     Following the prisoner's transfer to the custody of the state Department of Corrections, he underwent a number of surgeries to remove dead tissue and treat osteomyelitis that developed as a result of the ulcers.

     The appeals court found that the evidence supported the claim that the jail officials were deliberately indifferent to the prisoner's serious medical needs. It also found that the county was properly held liable because there was evidence that the practices at issue were consistently applied to paraplegic inmates and that various county policies restricted the jail nurses' ability to care for such inmates, including limits on the nurses' ability to enter cells and a ban on foam mattresses and mobility supports.

     Lawson v. Dallas County, #00-11078, 286 F.3d 257 (5th Cir. 2002).

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New Jersey state prison inmates who alleged racial discrimination and conspiracy to violate their rights on the basis of race following the fatal stabbing of a correctional officer by a inmate could pursue their federal civil rights lawsuit without pursuing supposed remedies described in state prison's inmate handbook. Court finds that grievance procedures described were not sufficiently clear and that therefore no available administrative remedies existed for inmates to exhaust before filing suit.

     Following the fatal stabbing of a correctional officer by an inmate at a New Jersey correctional facility, a "lock down" was ordered at the prison. Hundreds of inmates subjected to the lock down filed federal civil rights claims contending that they were subjected to a variety of violations of their rights, with some of them claiming that they encountered racial discrimination and/or a racially motivated conspiracy to violate their rights.

     The defendant prison officials argued that the claims should be dismissed based on the failure of the plaintiffs to exhaust available administrative remedies before filing suit, as required by the Prison Litigation Reform Act, (PLRA), 42 U.S.C. Sec. 1997e(a).

     The trial court rejected this. The available administrative remedies referred to were those specified in the state prison's inmate handbook.

     The court agreed that a handbook of this nature could constitute an administrative remedy for purposes of the PLRA's exhaustion requirement, even if it was not adopted according to formal notice and comment procedures. In this case, the court noted, the New Jersey Department of Corrections "has not promulgated a grievance procedure for state penal institutions," although its regulations do include requirements that county jails adopt written inmate grievance procedures, and administrative remedies regarding disciplinary sanctions, placement in protective custody, and confinement in the Security Threat Group Management Unit.

     The department has also adopted a regulation concerning the development of Inmate Handbooks, N.J.A.C. Sec. 10A:8-1.1 to -3.6. The regulation does not require the handbook to contain information concerning inmate grievance procedures. Such a handbook could, the court stated, constitute an available administrative remedy which prisoners would have to exhaust before pursuing a lawsuit, but "to serve these purposes, grievance procedures must be understandable to the prisoner, expeditious, and treated seriously," as well as enabling prison authorities to take "some responsive action" to prisoner complaints.

     Based on the two pages of the handbook presented as evidence, however, the court said that it had to conclude that the complaint procedures described in it "cannot be considered an administrative remedy for purposes of the PLRA's exhaustion requirement."

     While the "literal language" of the handbook "is understandable to the prisoner," the handbook "creates the clear impression that use of the ARF (Administrative Remedy Form) is optional not mandatory, and that it is not intended to modify or restrict access to the judicial process." Indeed, "no one reading that language would understand that it was necessary to exhaust the ARF process before filing a civil action with the courts."

     The process was also not "expeditious," since it did not require administrators to respond to complaints filed on ARFs in any specific time period. Additionally, the court concluded, "based upon the record before me" that it "does not appear that ARF complaints are treated seriously."

     A description in the handbook of an Ombudsman and his role "fares no better," since this official was presented as an optional "means outside of the institution by which inmate grievances, complaints or suggestions may be reviewed." The court also found that the Ombudsman's ability to "make recommendations for change" to administrative officials did not seem to be the type of "responsive action" required for exhaustion of remedies.

    The court concluded that there were no available administrative remedies for the plaintiffs to exhaust and denied the defendant's motion to dismiss for failure to do so.

     In Re Bayside Prison Litigation, No. 97-5127, 190 F. Supp. 22d 755 (D.N.J. 2002).

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Prison officials did not show deliberate indifference to prisoner's safety by placing him in the general population days before his parole date, where he was stabbed, since they were not aware of any enhanced risk, and were therefore entitled to qualified immunity.

     A California prisoner claimed that prison officials were deliberately indifferent to his safety in violation of the Eighth Amendment by placing him in the general population of Level IV days before his parole date where he was stabbed, and after he had previously been attacked in Level I.

     Rejecting this, and holding that the defendant officials were entitled to summary judgment on the basis of qualified immunity, a federal appeals court stated that "nowhere is it clearly established that a prisoner may not be moved from a lesser classification to a higher classification because of some abstract increase in danger."

     Further, "any reasonable officer would not have understood that the move to Level IV was putting" the prisoner "unconstitutionally in harm's way; and qualified immunity is appropriate," since there was a complete lack of any indication of "deliberate indifference" to the risk of harm to the prisoner.

     O'Connor v. Terhune, #01-15517, 32 Fed Appx. 314 (9th Cir. 2002).

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Federal prison psychologist was entitled to qualified immunity for failing to take any action to prevent violent attack after patient prisoner reported threats. Psychologist reasonably believed that prisoner, who was paranoid, and who was being treated for symptoms of psychosis and depression, was not in any real danger.

     A federal prisoner filed suit for violation of his federal civil rights and for negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671 et seq. The claims were based on the failure of a prison psychologist to take any action to prevent a violent attack on him after he reported information to her which could be taken as indicating threats.

     The prisoner's left eye was split open in a violent attack and beating by an inmate and had to be surgically removed. A federal appeals court found that the prison psychologist was not deliberately indifferent, under the circumstances, to a known risk of harm to the prisoner.

     She had diagnosed the prisoner as paranoid, and was treating him for symptoms of psychosis and depression. While she did concede that there was a possibility that other inmates might harm the prisoner, her testimony indicated that she did not believe that there was "any serious threat of physical danger at all."

     The psychological was also aware of the prisoner's prior history of physical abuse and prior sexual abuse and intimidation. She reasonably concluded that the confrontation he reported with other inmates did not pose an actual risk that he would come to physical harm, but rather had caused him to relive his negative past experiences.

     Indeed, a few days after he reported the alleged threats, and before the attack occurred, the plaintiff himself allegedly told the psychologist that his fears "could have been misplaced," describing himself as "paranoid."

     The court also found that the psychologist was not negligent in failing to take steps to prevent the attack under the circumstances, so that no negligence claim could be maintained against the federal government under the FTCA.

     Swan v. U.S., #01-15847, 32 Fed. Appx. 315 (9th Cir. 2002).

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Indiana federal court jury awards $56.5 million to family of DUI arrestee who died in jail "drunk tank" following alleged assault by deputy, including choking and use of pepper spray.

     A 30-year-old man arrested for driving under the influence was placed in a "drunk tank" in the county jail in South Bend, Indiana. Following a confrontation between the arrestee and another prisoner, a deputy entered the cell and sprayed the arrestee in the face with OC 10, a powerful pepper spray. Allegations in a subsequent lawsuit, backed up by a videotape of the incident, claim that the deputy then choked the arrestee and slammed his head against a concrete bench, assaulting him.

     Two deputies then transported the arrestee to another floor to shower off the pepper spray, but allegedly threw him into a hot shower which increased the effect of the pepper spray, which was already allegedly ten times as powerful as regular pepper spray, rather than following a standard procedure of a cold shower to wash off the pepper spray.

     The plaintiffs claim that the deputies then put the arrestee in a restraint chair, sprayed him with pepper spray again, and following that, threw him back into the shower. He allegedly suffered a brain injury, a subdural hematoma, when he hit his head in the shower this time. The deputies again placed him in the restraint chair for a time, and then allegedly put him back into the drunk tank naked and comatose.

     The arrestee was found dead in the "drunk tank" in the morning. His family filed a federal civil rights lawsuit against the county and the three deputies for violation of civil rights.

     The trial court granted the county summary judgment and a jury was unable to return a verdict on claims against the deputy who first pepper sprayed the decedent. They did, however, return an award of $56.5 million against the other two deputies, which is reportedly the largest verdict in the history of the state of Indiana. The deputies are not being indemnified by the county.

     Moreland v. Dieter, No. 3:99CV0607, U.S. District Court (N.D. Ind. May 9, 2002), reported in The National Law Journal p. B1, May 20, 2002.

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Inmate sufficiently pleaded facts to support his claim that officials retaliated against him by imposing disciplinary sanctions for his "jailhouse lawyering" activities when defendants did not assert whether the prisoner had actually committed prison rule violations which would defeat the retaliation claim.

     An Iowa prisoner who sometimes serves as a "jailhouse lawyer" for other inmates claimed that his due process rights were violated by a number of disciplinary reports filed against him and the resulting discipline. He also claimed that the disciplinary infractions were pursued in retaliation of his "jailhouse lawyering" activities.

     While the trial court rejected the due process claims, finding that the prison disciplinary reports and imposed sanctions were not "atypical, significant deprivations" which violated any protected liberty interest, it did find that the plaintiff prisoner properly stated a claim for unlawful retaliation.

     The violation in a retaliation claim is not in the nature of the sanctions imposed, which might, by themselves not be constitutional violations, but rather in the "intent to impede" the inmate's constitutional rights. In this case, the court noted, none of the pleadings alleged whether the inmate had actually committed prison rule violations, which would defeat the retaliation claim.

     The trial court also found that the prisoner adequately pleaded an equal protection claim based on his assertion that he was treated differently as a "lifer" than other prisoners as to jobs and level advancements.

     Williams v. Manternach, 192 F. Supp. 2d 980 (N.D. Iowa 2002).

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Orthodox Jewish inmates in Colorado correctional facilities were entitled to be supplied kosher meals free of charge. Suggested 25% co-payment requirement was an impermissible burden on the exercise of religion.

     Three Orthodox Jewish prisoners in Colorado state correctional facilities filed a lawsuit against state prison officials challenging the failure to provide them with kosher meals for free. The prison proposed requiring the prisoners to make a 25% co-payment of the cost in order to receive the special food.

     Upholding a permanent injunction issued by the trial court, a federal appeals court held that the co-payment requirement and failure to provide free kosher meals violated the First Amendment right to a diet conforming to the prisoners' religious beliefs.

     The court rejected the argument that budgetary concerns and the response of other prisoners to the providing of such a diet were sufficient reasons not to provide free kosher meals. It also rejected the prison officials' suggestion that the "Jewish community" could provide the kosher food meals, noting that the courts cannot require community groups to supply food to prisoners.

     The appeals court also found that allowing the Orthodox Jews to obtain an "alternative religious diet" free of charge through the prison's "common fare" program, in which meals were prepared with no pork or pork by-products, or were vegetarian, was not "an alternative at all" and could not justify the refusal to provide a full kosher diet. Orthodox Jewish kosher requirements go far beyond whether a food item does or does not contain pork or other non-kosher animal products, the court stated, but also addresses the source, storage, and preparation of the ingredients, and the service of meals.

     The court also noted that the cost of the proposed 25% co-payment would be $90 a month, and that the prisoners were only able to earn $56.58 per month from their prison jobs, which would require them to incur a debt in excess of $30 per month simply to maintain their religious practices. The court further found that the burden on the defendants was not a significant one and that the kosher meals could be provided at a cost of only 0.158% of its annual food budget.

     The court concluded that the proposed co-payment plan was not rationally related to the legitimate penological concerns of cost and abuse, and upheld the ruling requiring that the plaintiffs be provided with free kosher meals.

     Beerheide v. Suthers, #00-1086, 286 F.3d 1179 (10th Cir. 2002).

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U.S. Supreme Court rules that prisoners may be offered incentives to participate in treatment and rehabilitation programs in which they are required to disclose prior acts that may be crimes without violating the compelled self-incrimination prohibitions of the Fifth Amendment.

     A Kansas prisoner convicted of rape and related crimes was ordered, a few years before his scheduled release, to participate in a Sexual Abuse Treatment Program (SATP). Part of the program involves participating inmates completing and signing an "admission of responsibility" form in which they accept responsibility for the crimes for which they have been sentenced, and complete a sexual history form detailing all prior sexual activities, regardless of whether the activities constitute uncharged criminal offenses. The information gathered in this way is not privileged, and might be used against them in future criminal proceedings.

     The prisoner was informed that if he refused to participate, his prison privileges would be reduced, resulting in the automatic curtailment of his visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges. He also would be transferred to a potentially more dangerous maximum-security unit. He refused to participate, arguing that the disclosures required would violate his Fifth Amendment privilege against compelled self-incrimination.

     A federal appeals court, Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000) upheld summary judgment for the plaintiff prisoner in a federal civil rights lawsuit, holding that the use of these incentives to participate in the program (or punishments for failing to participate in the program, depending on one's analysis) violated the Fifth Amendment. The court ruled that the automatic reduction in the prisoner's privileges and housing accommodations were unlawful penalties for refusing to agree to compelled self-incrimination by participating in the program. Additionally, the court reasoned that an admission of culpability regarding his crime of conviction would create a risk of a perjury prosecution.

     The U.S. Supreme Court has now reversed the judgment of the appeals court. A four person plurality of the Court, in an opinion written by Justice Kennedy, and joined by Chief Justice Rehnquist, Justice Scalia, and Justice Thomas, concluded that the program serves a vital penological purpose, that of rehabilitation, and that offering the inmates minimal incentives to participate did not amount to compelled self-incrimination prohibited by the Fifth Amendment.

     The fact that the disclosures made during participation in the program were not privileged and that the state of Kansas does not offer the participants use immunity for the statements made during participation did not change the result. The refusal to offer use immunity serves two legitimate state interests: 1) the potential for additional punishment reinforces the "gravity of the participants' offenses" and therefore aids in their rehabilitation, and 2) the state confirms its valid interest in deterrence by keeping open the possibility of prosecuting a "particularly dangerous sex offender."

     The plurality also noted that the prisoner's decision did not extend his prison term or affect his eligibility for good-time credits or parole. The transfer to a less desirable maximum security unit, the decision said, is not designed to punish prisoners, but is incidental to a legitimate penological reason. Due to limited space, inmates who do not participate in their respective programs must be moved out of the facility where the programs are held to make room for other inmates.

     Justice O'Connor concurred in the result, finding that the program in question and the penalties assessed for non-participation were "not compulsive on any reasonable test." A dissent by Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer disagreed with the characterization by the plurality of the consequences of non-participation in the program as merely the loss of minimal incentives, and instead characterized the decision as justifying the "evisceration of a constitutional right" of the prohibition on compelled self-incrimination.

     McKune v. Lile, #00-1187, 2002 U.S. Lexis 4206.

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Placing a non-smoking inmate in a cell for 42 days with a cellmate who was a heavy smoker did not amount to cruel and unusual punishment, despite non-smoker's discomfort and irritation.

     A Nevada prisoner claims that he was subjected to cruel and unusual punishment, in violation of the Eighth Amendment, by exposure to environmental tobacco smoke (ETS). Suing prison officials, he complains that he was assigned to a cell with a heavy smoker as a cellmate, despite the fact that he is a nonsmoker and was, at the time, awaiting diagnosis and treatment for a sore throat condition. The two inmates were housed together in a cell for 42 days.

     The cellmate allegedly smoked 40-50 cigarettes per day during that period, and the plaintiff prisoner spent from 21 to 24 hours per day in the cell, which was small, with an area of about 57 square feet and a volume of about 456 cubic feet. Further, because it was winter at the time, the broken cell window was usually sealed shut with plastic. The plaintiff prisoner contended that he experienced "discomfort and irritation" as a result of the smoking, that it caused him to cough and that the coughing "caused his sore throat to hurt worse than it otherwise would have."

     Accepting all of this as accurate, the trial court stated, would still not present a claim for cruel and unusual punishment through exposure to environmental tobacco smoke in the sense specified by Helling v. McKinney, 509 U.S. 25 (1993). In Helling, the Court ruled that a prisoner could show an Eighth Amendment violation in such a case by meeting both an objective and a subjective test: 1) objective exposure to levels of  ETS that pose an unreasonable risk of serious damage to his future health, and 2) subjective deliberate indifference on the part of the defendant prison officials.

     The court ruled that no reasonable juror could find that the exposure to ETS in this case met the objective standard established in Helling. "That amount of exposure to ETS could not reasonably be said to pose an unreasonable risk of serious damage to plaintiff's future health. While society has in recent years become more and more sensitive to the issue of exposure to ETS, plaintiff's 42 days with a smoker still is not so grave as to be a violation of contemporary standards of decency."

     The court pointed to the ruling in Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996), in which the plaintiff prisoner, a mild asthmatic, could not show a violation of the Eighth Amendment for being celled with smokers for "about 133 days in a little less than a year."

     The court emphasized that this did not mean that it necessarily condoned the prison officials' decision to house the plaintiff in a cell with a smoker, a decision "ironic, at best, given that plaintiff" was at the facility "to be treated for a sore throat." But the court also found that its role was not to "determine whether it would have been better to house plaintiff with a non-smoker," but whether a jury "could reasonably find a constitutional violation."

     "Having determined that a jury could not, the Court's work is at an end. The Court does not bear the burden of determining how best to manage Nevada's prisons such that plaintiffs and other prisoners are subjected to the least amount of ETS possible."

     Jones v. Bayer, 190 F. Supp. 2d 1204 (D. Nev. 2002).

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Access to Courts/Legal Info

     Prisoner acting as a "jailhouse lawyer" for other prisoners by assisting them with their legal work did not assert a valid claim for right of access to the courts absent a showing that these other prisoners were denied court access. "Prison officials may prohibit or limit jailhouse lawyering unless doing so interferes with an inmate's ability to present his grievances to a court," and a "jailhouse lawyer's right to assist another prisoner is wholly derivative of that prisoner's right of access to the courts." Ziegler v. McGinnis, #01-1492, 32 Fed. Appx. 697 (6th Cir. 2002).

Disability Discrimination

     In disability discrimination claim against correctional defendants by prisoner suffering from diabetes and heart condition, prisoner was not required to exhaust administrative remedies to pursue a claim under Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12112(a)(2) covering access to governmental programs, but government officials were not subject to individual liability under this section of the statute. Further, injunctive and declaratory relief were inappropriate when prisoner had been transferred from facility, so there was no longer an ongoing controversy over his alleged denial of participation in work and educational programs. Mitchell v. Massachusetts Department of Correction, 190 F. Supp. 2d 204 (D. Mass. 2002).

Employment Issues

     Department of Corrections failed to rebut prison employee's prima facie case that he was demoted in retaliation for his filing of a whistleblower report concerning a meat theft from the prison kitchen, and therefore would be liable for retaliation under a state statute. 43 P.S. Sec. 1423 et seq. O'Rourke v. Commonwealth of Pennsylvania, 778 A.2d 1104 (Pa. 2001). (link is to .pdf format file).

     Correctional officials should have been granted qualified immunity in lawsuit by African-American correctional employee terminated following an investigation of his alleged choking of a handcuffed inmate, since he failed to adequately show a possible equal protection violation. Inmon v. Arkansas Dept. of Correction, #00-2113, 245 F.3d 1030 (8th Cir. 2001). (link is to .pdf format file).

Extradition

     Trial court properly granted summary judgment to county and county sheriff on prisoner's claim that he was extradited from Ohio to Texas without the procedural protections to which he was entitled under the Uniform Criminal Extradition Act. Vinson v. Ohio, #01-3398, 31 Fed. Appx. 193 (6th Cir. 2002).

First Amendment

     Prison's maintenance of different policies on conditions of confinement of death row prisoners and prisoners serving non-capital sentences did not constitute First Amendment retaliation against death row prisoners where the differing policies and treatment did not depend on whether the prisoner facing death had appealed their sentence. Further, while this difference in treatment may have made life "more unpleasant" for those on death row, the conditions were not so different from those faced by other inmates as to constitute cruel and unusual punishment or serve as a deterrent against filing law suits. Apanovitch v. Wilkinson, #01-3558, 32 Fed. Appx. 704 (6th Cir. 2002).

Marriage/Procreation

     Woman who pled guilty to providing a prohibited object to an inmate, a cryogenic sperm preservation kit intended to preserve her inmate husband's sperm, was not entitled, post-conviction, to the return of the confiscated seminal fluids. Wife was not entitled to equitable relief in the form of return of the seized property since she had "unclean hands," having bribed a correctional officer to smuggle her husband's semen out of the prison. U.S. v. Parlavecchio, 192 F. Supp. 22d 349 (M.D. Pa. 2002).

Medical Care: Mental Health

     Prisoner's mental health disorder, diagnosed as bipolar disorder, was sufficiently serious so that deliberate indifference to his resulting medical needs, including anxiety he allegedly suffered due to a lack of medication review, would violate the Eighth Amendment. Further proceedings ordered as to whether manager of counseling treatment services purposefully misdiagnosed prisoner's mental illness or denied medication review. Page v. Norvell, 186 F. Supp. 2d 1134 (D. Ore. 2000).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner who claimed correctional officers severely beat him was required to exhaust available administrative remedies before filing suit despite the fact that they could not lead to monetary awards. Actions including the disciplining of the officers or the transfer of the prisoner to another facility where he would not be under their supervision were possible responses to an administrative complaint, and the administrative exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) requires a prisoner to exhaust any procedure that has authority to take "some action" in response to his complaint. Larkin v. Galloway, #00-1414, 266 F.3d 718 (7th Cir. 2001).

     Prisoner who claimed that correctional officials had subjected him to a substantial risk of being attacked and sodomized by other prisoners by placing him in a particular prison unit without adequate security and protection had to exhaust available administrative remedies before bringing suit in federal court. Exhaustion requirement was intended to curtail frivolous prisoner litigation, and by 1995, prisoners filed more than 25% of the cases filed in federal trial courts, which Congress concluded included more frivolous lawsuits than suits pursued by "any other class of persons." Torres v. Alvarado, 143 F. Supp. 2d 172 (D. Puerto Rico 2001).

Prisoner Assault: By Inmates

     Prisoner did not show that correctional officer was deliberately indifferent to the risk of an assault by another inmate on the prisoner by including his name as the informant in a misconduct report introduced at a hearing against his cellmate. Cellmate did not have a violent history, and there was no evidence the officer was aware of a significant risk that he would attack the prisoner. Williams v. McGinnis, 192 F. Supp. 22d 757 (E.D. Mich. 2002).

Prisoner Assault: By Officers

     Prison guard's alleged actions of shoving prisoner against a wall, poking him in the chest, and yelling at him in a threatening manner, all in reaction to the prisoner writing him a threatening letter, did not violate the Eighth Amendment, since it involved "minimal force" intended to maintain or restore discipline. Rendelman v. U.S., #99-56858, 32 Fed. Appx. 804 (9th Cir. 2002).

Prisoner Transfers

     Correctional officials did not violate prisoner's constitutional rights by refusing to transfer him to a facility nearer to his home and by allegedly placing incorrect codes in his file that made him ineligible for a transfer. A "prisoner has no inherent constitutional right to be confined in a particular prison or to be held in a specific security classification." Nunez v. FCI Elkton, #01-3970, 32 Fed. Appx. 724 (6th Cir. 2002).

Religion

     Prison's refusal to accommodate an inmate's request for a special religious diet did not violate the First Amendment when the prisoner was provided with an adequate diet to maintain good health even if the items which violated his religious dietary restrictions were not eaten. The First Amendment requires that prison officials provide an inmate with food that is adequate without violating his religious dietary restrictions. Alexander v. Carrick, #00-1261, 31 Fed. Appx. 176 (6th Cir. 2002).

Segregation: Disciplinary

     Pretrial detainee cannot be put in segregation as a punishment for a disciplinary offense without notice and an opportunity to be heard, and an issue of fact existed as to whether the detainee was placed in lockdown segregation purposes for 34 days for punishment or preventive purposes. Further, the prisoner's claim that he was placed in lockdown segregation for 11 days in retaliation for pursuing his lawsuit sufficiently stated a possible claim for violation of his rights. Higgs v. Carver, #01-1559, 286 F.3d 437 (7th Cir. 2002).

Workers' Compensation

     Evidence supported administrative law judge's determination that an employee's work as a prison guard was a contributing factor to his fatal heart attack, entitling his widow to workers' compensation death benefits. Doctor's testimony indicated that employee would not have died when he did in the absence of the physical and mental stress he experienced at work on the day of his fatal heart attack. Phillips Correctional Inst. v. Yarbrough, No. A00A22265, 548 S.E.2d 424 (Ga. App. 2001).

     Arizona state statute exempting 50% of a debtor's disposable income from attachment to satisfy child support obligations did not apply to a prisoner's workers compensation disability benefits since these benefits were not wages or salary and the prisoner was not a debtor who needed a portion of his income for self-maintenance. Prisoner's ex-wife, therefore, was entitled to the full amount of the prisoner's benefits for child support in the absence of his successfully modifying the order of support and assignment of benefits. Hanley v. Industrial Commission of Arizona, #1 CA-IC 00-0085, 21 P.3d 856 (Ariz. App. 2001). (link is to .pdf file).