FEATURED CASES

WITH LINKS TO THE OPINIONS

Prisoner's claim that officials' use of tear gas to enforce lockdown was an excessive use of force was contradicted by videotape showing that prisoners, including the plaintiff, did not return into their cells when the order to do so was initially given. Prisoner's claim that he "begged" for medical attention but that prison employees would not help him was also contradicted by videotape which showed officers asking him whether he needed medical attention and him replying that he did not.

     A federal prisoner was sitting in a cell block dayroom watching television when a Captain approached the inmates and ordered them to return to their cells for lockdown. As the prisoner proceeded to his cell, he claims that the Captain left and returned a few seconds later with personnel in riot gear, starting to release tear gas without warning. The prisoner further claims that he was locked in his cell, and that prison authorities then disconnected the water supply, and turned off the air conditioners, leaving him to "suffocate, choke and gasp" for eight hours until the water and air were restored.

     The prisoner, in a lawsuit, claims that he begged for medical treatment, but that prison employees refused to help him, and that since the incident he experiences severe headaches, dizziness, chest pain and "constant nosebleeds."

     Dismissing the lawsuit, a federal trial judge found the evidence insufficient to find that federal prison officials used excessive force in administering tear gas during the lockdown or were deliberately indifferent to the prisoner's serious medical needs.

     The court noted that the events of that evening began with a work stoppage in the prison kitchen which resulted in a limited institutional lockdown, restricting all inmates to the dayroom of their respective housing units. Later, when prisoners were ordered to go to their cells, "the inmates refused the order," following which the chemical agents were used to gain compliance with the orders. In a videotape, the plaintiff prisoner, despite his claim that he went into his cell, is only shown entering it some eight minutes after the order to do so was given.

     Under these circumstances, the use of force was a "good-faith attempt to maintain order and discipline," and the plaintiff did not comply with the orders given. Since there was no excessive use of force, the plaintiff's claim "should be dismissed with prejudice as frivolous."

     The court also noted that a videotape of the incident shows that corrections officers visually checked and verbally asked each inmate in the housing unit if he needed medical attention. A section of the tape even showed the plaintiff being interviewed late that evening and stating that he did not require medical assistance. "The court finds that Plaintiff's Complaint has no basis in fact or law."

Fairweather v. Giles Dalby Correctional Facility, 154 F. Supp. 2d 921 (N.D. Tex. 2001).

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U.S. Supreme Court to rule on the issue of whether punitive damages may be awarded against a municipality in a lawsuit for damages brought under Section 504 of the Rehabilitation Act or Section 202 of the Americans With Disabilities Act.

     A federal appeals court ruled that a jury properly awarded $1.034 million in compensatory damages to a wheelchair-bound arrestee who was injured while being transported in a van that was not equipped with wheelchair restraints. The appeals court also rejected, however, the trial court's setting aside of the jury's punitive damages award of $1.2 million, ruling that punitive damages are available in disability discrimination cases for denial of public services. Gorman v. Easley, #00-1029, 257 F.3d 738 (8th Cir. 2001). (Click here to read the decision on the court's website in .pdf format). (Click here to read a prior article on this case in the January 2002 issue of this publication).

     The U.S. Supreme Court has now decided to review this ruling, limited to the issue of whether punitive damages may be awarded against governmental entities under the federal disability discrimination statutes, rather than the issue of whether the plaintiff in the case was actually subjected to disability discrimination or whether the award of compensatory damages was correct.

Barnes v. Gorman, #01-682, cert. granted, 122 S. Ct. 864 (2002).

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Click here to read the text of federal regulations on denial of services by a public entity on the basis of disability, 28 C.F.R. Sec. 35.

Update: federal appeals court overturns trial court decision ruling that a convicted rapist had a constitutional due process right to DNA testing on evidence in his case in an attempt to prove his innocence.

     A federal appeals court panel has unanimously reversed a trial judge's ruling that felons have a constitutional right to DNA testing to attempt to prove their innocence. The trial judge had ordered Virginia state officials to allow the tests for a currently imprisoned convicted rapist who claims that he did not commit the crime for which he is incarcerated.

     The plaintiff prisoner had filed a federal civil rights lawsuit alleging that the refusal of officials to allow such testing on the evidence in his case denied his right to due process of law. The court granted the plaintiff prisoner summary judgment and ordered the prosecutor to release biological evidence in the case for DNA testing. Harvey v. Horan, 119 F. Supp. 2d 581 (E.D. Va. 2001), reported in the November 2001 Jail & Prisoner Law Bulletin. (Click here to read the previous article).

     Reversing, the appeals court panel stated, among other things, that under the less precise scientific knowledge available at the time of the 1990 conviction, neither the plaintiff prisoner nor his co-defendant could have been excluded as the rapists, and there was "other substantial evidence" of guilt in the case.

     "There is no newly discovered evidence in this case," the court stated, "Instead, Harvey [the prisoner] seeks to subject existing biological evidence to new DNA testing. This evidence was already subjected to DNA testing using the best technology available" at the time the conviction became final.

     Accepting the prisoner's argument, and establishing a "due process" right to retest evidence with new advances in forensic science, the court reasoned, "would leave perfectly valid judgments in a perpetually unsettled state. This we cannot do."

Harvey v. Horan, #01-6703, 2002 U.S. App. Lexis 923 (4th Cir.).

»Click here to read the text of the decision on the court's website.

»Click here to download, in .pdf format a Reference Guide to DNA evidence which is a chapter in the Reference Manual on Scientific Evidence (2nd Edition 2000) published by the Federal Judicial Center.

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Texas statute requiring indigent prisoners to file an affidavit listing the prior lawsuits they have filed and their disposition, or else face dismissal of their lawsuit as frivolous or malicious, did not violate prisoner's rights under the U.S. or Texas constitution. Plaintiff whose lawsuit was dismissed for failure to file required affidavit was the "veritable poster child" for the rational basis of the statute, court comments, with over 175 prior lawsuits and 16 prior published appellate decisions in which he was the appellant.

     A Texas prisoner filed a lawsuit against prison employees, claiming that they violated his rights under both federal and state law by "interfering" with his mail. The lawsuit was filed in state court and the trial judge dismissed the lawsuit as frivolous or malicious under a state statute, Tex. Civ. Prac. & Rem. Code Ann Sec. 14003(a)(2).

     On appeal, the prisoner argued that the trial court abused its discretion by not providing a way for him to participate in or attend the hearing on the motion to dismiss, and that the Texas statute in question violated the U.S. and Texas constitutions.

     Rejecting the claim that the prisoner had a right to attend the hearing on the motion to dismiss, the appeals court noted that the trial court was not required to hold a hearing at all before dismissing a lawsuit as frivolous or malicious under the cited statute. Further, the prisoner did not point to any place in the record where he requested a bench warrant, the court noted,

     "Though a party may not be denied access to the courts merely because he is an inmate, there is no absolute right for an inmate to appear in court in a civil case," the court stated. The motion to dismiss raised the issue that the plaintiff prisoner failed to file an affidavit required under the cited statute, and that issue "was wholly determinable from the record," so that the prisoner "did not need to appear at the hearing to effectively present his case."

     Further, the prisoner could have avoided the dismissal by filing the required affidavit, so that his presence at the hearing, either in person or otherwise (such as participation via deposition or over the telephone, etc.) was unnecessary "because the only issue was whether he had complied with the statute."

     The statute provides that a trial court may dismiss a suit filed by an indigent inmate either before or after service of process if the court finds that the claim is frivolous or malicious. It requires that such an inmate must file a separate affidavit or unsworn declaration identifying every pro se lawsuit (except family matters) he has previously filed and a description of each suit. If such previous suits were dismissed as frivolous or malicious, then the affidavit must also provide the date of the final order affirming the dismissal.

     The appeals court found that the purpose of this requirement was to aid the trial court in determining whether the lawsuit is frivolous or malicious or whether the claims asserted have already been litigated.

     The plaintiff prisoner in this case, the court found, "is the veritable poster child" for the rational basis of the statute. There are currently sixteen published opinions, the court stated, in which the plaintiff appears as the appellant, and by his own admission in a previous case, he has filed over 175 lawsuits, in litigation dating from 1977. With that much prior litigation, the appeals court reasoned, the trial court was entitled to determine from the required affidavit whether the suit was related to a previous suit that may have already been dismissed as frivolous.

     The appeals court found no sound argument for the contention that the statute violated any provision of the federal or state constitution, such as equal protection. Prisoners, the court noted, are not a "suspect class," and the statute, far from barring prisoners' access to the courts, merely rationally attempts to control "the flood of frivolous lawsuits being filed in the courts of this State by prison inmates, consuming valuable judicial resources with little offsetting benefit."

Thomas v. Bilby, No. 06-00-00113-CV, 40 S.W.3d 166 (Tex. App. 2001).

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Prisoner's lawsuit, over incident which occurred prior to the enactment of the Prison Litigation Reform Act, with its exhaustion of remedies requirement, but which was filed after the enactment of the law, was properly dismissed for failure to exhaust remedies by filing a written complaint with the prison.

     An inmate in a federal prison in Illinois claimed that he suffered "cruel and unusual punishment" at the hands of correctional officers who allegedly beat him in late October 1995 in retaliation for his involvement in a prison riot that occurred earlier in the month.

     The prisoner's alleged injuries occurred on October 26, 1995, and the Prison Litigation Reform Act (PLRA) was signed into law on April 26, 1996. The prisoner failed to follow the prison's grievance procedures, failing to file a written complaint within twenty days of the alleged offense.

     When he subsequently, on September 11, 1996, filed a federal civil rights lawsuit, that lawsuit was ultimately dismissed in its entirety for failure to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a) as amended by the Prison Litigation Reform Act.

     Upholding this result, a federal appeals court held that the plaintiff inmate's failure to file the required written complaint within 20 days of the alleged beating constituted a failure to exhaust remedies, even though the PLRA was enacted after expiration of the twenty-day deadline.

     The court acknowledged that "Congress never has stated that the PLRA's exhaustion requirements should be applied retroactively," and as a result, courts have "permitted non-exhausted lawsuits to proceed if they were filed before April 26, 1996," citing Mitchell v. Shomig, 969 F. Supp. 487 (N.D. Ill. 1997). In the immediate case, however, the plaintiff filed his lawsuit after the enactment of the PLRA, with its exhaustion requirement.

     The appeals court noted that the enactment of the PLRA plainly gave the plaintiff inmate notice that he could not enter federal court without exhausting the prison's grievance process, but he "attempted to make an end run around the statute by choosing to sue first," and then attempting to expand upon his complaint with an amendment three years later.

     "This is precisely the type of litigious behavior the PLRA was designed to prevent," the court stated. The court further pointed to the fact that the twenty-day deadline in the Bureau of Prison's regulations contained a "hardship exception" for inmates who are able to demonstrate a valid reason for not meeting the deadline, but the plaintiff did not attempt, even after the enactment of the PLRA, to seek to further pursue the possibility of administrative remedies.

     Further, while the prison knew that the plaintiff prisoner was "angered about the guards' conduct," he failed to "properly and adequately notify the prison that he sought monetary damages and intended to file suit," so that the "institution cannot be faulted for failing to address" his grievance "to his satisfaction."

McCoy v. Gilbert, No. 00-1354, 270 F.3d 503 (7th Cir. 2001).

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Prisoner who was reclassified into a classification in which he could not earn good time credits based on a disciplinary conviction for failing to obey prison's grooming policy could not pursue federal civil rights claim for damages when the disciplinary conviction had not previously been set aside.

     A California prisoner sued over a reclassification that was allegedly the result of his disciplinary conviction for a violation of the Department of Correction's grooming policy. Contending that the classification he was now placed in was one in which he cannot earn good time credits, he claimed that it violated his constitutional rights.

     A federal trial court ruled that the prisoner could not pursue his claim for damages when the disciplinary conviction on which his reclassification was based had not, at this point, been reversed or otherwise set aside.

     It held that this result was required by the U.S. Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994) (to recover damages for an allegedly unconstitutional conviction or imprisonment or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Sec. 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus).

     The court noted that Heck has been applied beyond cases which involve a challenge to the fact of conviction or to the sentence as imposed by a court, including application to disciplinary decisions that involve a loss of good time credits, citing Sheldon v. Hundley, 83 F.3d 231 (8th Cir. 1996).

     While the plaintiff prisoner in this case did not challenge the disciplinary decisions themselves, he did claim that his constitutional rights were violated in the prison authorities' calculation of his appropriate classification status, "which is analogous," the court reasoned.

     Far from alleging that the classification decision has been set aside and his good time credits restored in another forum, part of the relief he requested in his lawsuit "is that this Court order their restoration." As a result, the court concluded that dismissal of his lawsuit was appropriate. The prisoner can still assert his claims in a new case "if a cause of action ever accrues," i.e., if he is ever successful in having the disciplinary conviction set aside.

Diaz v. Terhune, 173 F. Supp. 2d 1026 (N.D. Cal. 2001).

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Jail officials were not liable for pretrial detainee's death from ingestion of cocaine when he denied that he had done so and refused medical attention. Arresting officers and intake personnel at the jail all offered to get him medical assistance if he required it and all asked him whether he had swallowed drugs.

     Officers who arrested a man in an apartment in which crack cocaine was found observed him licking his lips with a pink foamy drool coming from his mouth. They offered to take him to the hospital if he had swallowed drugs, but he denied doing so, explaining that he had knocked his teeth against the bed while being handcuffed. At the jail to which he was taken, several sheriff's employees asked him if he had swallowed any drugs or alcohol and promised to provide him with medical attention if he needed it. They also assured him that he would not face additional charges if he had swallowed drugs.

     The detainee continued to deny swallowing any drugs, stating that his stomach was upset from drinking alcohol and smoking marijuana. Jail employees checked his mouth more than once for injury and to be sure that he did not have anything in it. The prisoner was later put in an observation cell through which he could be seen from the intake desk. He was observed at various intervals, but at one point was found behind a "privacy" wall, without a pulse and not breathing. CPR was administered, but the detainee was subsequently pronounced dead.

     His estate filed a federal civil rights lawsuit seeking damages for the prisoner's death. Upholding the rejection of this claim, a federal appeals court found that there had been no deliberate indifference to the detainee's rights in violation of the Fourteenth Amendment, and no punishment in violation of the Fifth Amendment.

     Far from being "deliberately indifferent" to the detainee's health, the defendants repeatedly asked him if he had swallowed drugs, warned him of the possible dire consequences of having done so, and offered to provide him medical assistance. He consistently denied drug ingestion and consistently refused medical treatment, offering alternative explanations for his symptoms.

     It was the decedent who "swallowed the cocaine, concealed that he had done so, and refused medical treatment by denying that he had swallowed any drugs."

Watkins v. City of Battle Creek, No. 00-1502, 273 F.3d 682 (6th Cir. 2001).

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Correctional officers were not entitled to qualified immunity in lawsuit alleging that they watched television all evening while on duty and, as a result, failed to break up a fight between two cellmates which resulted in the death of one of them. Two cellmates allegedly belonged to rival gangs, but Commissioner of Corrections and warden lacked sufficient knowledge of the two gangs and their purported rivalry to be liable for failing to change a practice of allowing members of the two gangs to be housed in the same cell.

     A woman whose son was allegedly murdered in a Connecticut prison by his cellmate sued correctional officials for their failure to prevent the murder. The decedent was a member of the "Latin Kings" gang and his cellmate was a member of the "Nation" gang. The lawsuit claims that correctional officials denied her son his constitutional rights by allowing him to be imprisoned with a "dangerous person" without any protection, leading to his death. It also asserted a state law negligence claim.

     On claims against the Commissioner of Corrections and the warden of the prison, the court found that there was no evidence that either of them were personally involved in the incidents at the prison on the night of the murder, or that they were personally aware of problems between the two inmates and failed to act to separate them. There was, however, testimony from two inmates that members of the Nation and the Latin King gangs should not have been placed in the same cell because they are members of "rival gangs," and that this placement resulted in the death of the plaintiff's son.

     The defendant officials contended that the two gangs were "compatible" and not rivals. The court found that there was a "material issue of fact whether members of the gangs are rivals," and that "therefore, members should not be placed together in the same cells." While the Commissioner and warden were not directly responsible for cell assignments, the gang unit at the prison allegedly had the practice of placing rival gang members of the Nation and Latin Kings in the same cell. The Commissioner and warden, therefore, could be found to be personally involved in the alleged constitutional violation in so far as they allowed the "continuance of such a policy or custom."

     Ultimately, however, the court ruled that no viable Eighth Amendment claim was set forth against these two defendants, in the absence of evidence that they possessed enough knowledge concerning the two gangs to make them liable for failing to change the policy about housing them together.

     Three correctional officers on duty on the night of the incident allegedly waited between 20 minutes to a half hour before responding to sounds of an altercation between the two cellmates that resulted in the decedent's death, and allegedly had been watching television all night in violation of their duties, with the sound of the tv possibly masking the sound of the fight. The officers deny watching television, and also claim that one of them conducted regular rounds that evening and observed the decedent and his cellmate "getting along well."

     The court denied qualified immunity to the three officers, therefore. If the plaintiff's version of the events of that evening was true, it could not be concluded, as a matter of law, that it was objectively reasonable for the officers on duty " to believe that watching television on duty for extended periods of time" was lawful "given their duty to take reasonable measures to insure the health and safety of prisoners."

Rodriguez v. Connecticut, 169 F. Supp. 2d 39 (D. Conn. 2001).

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     EDITOR'S NOTE:  Some useful information about gangs, including about particular gangs, appears on the website of the National Alliance of Gang Investigators Associations.

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Correctional officials and employees who allegedly had knowledge of prisoners' death threats against inmate subsequently murdered at his prison print shop workplace yet took no protective actions were not entitled to qualified immunity from liability.

     The estate of a Kentucky prisoner murdered in the prison print shop by another inmate filed a federal civil rights lawsuit against various correctional officials and employees for failure to protect him against the attack.

     The record in the case showed that the murdered inmate was believed, by three prisoners fired from their print shop jobs, to have reported various alleged misconduct there, including the print shop manager, himself a former inmate, allowing his inmate friends to make phone calls from his office in violation of prison rules.

     A number of the other inmates allegedly made threats against the decedent, blaming him for their loss of the print shop jobs, and for an investigation that resulted in one of them being placed in administrative segregation. The prisoner placed in segregation wrote a letter to one of the other two fired prisoners, blaming the decedent for his detention and making a threat against him. This letter was obtained by prison officials as was a second letter he wrote a week later stating that "I want to kill them so bad," with the "them" referring to the decedent and another individual.

    The alleged killer of the decedent, despite having been fired from the print shop and barred from the workplace there, was allegedly allowed to enter. A new supervisor there went to the back, leaving the shop without any supervision, and with a door unlocked. It was then that the alleged killed entered the print shop, walked into the tool room, grabbed a hammer and allegedly bludgeoned the decedent to death.

     Upholding the rejection of qualified immunity for seven correctional officials or employees named as defendants, a federal appeals court found that there was evidence from which it could be found that state corrections officials acted in an "objectively unreasonable fashion" by taking no action to protect the decedent in the face of a known substantial risk of harm from another inmate. If the plaintiff's version of the facts were shown to be true, this would mean that the defendants had actual knowledge of and disregarded the risk to the decedent's safety from death threats expressed by other prisoners, including some that were in writing.

     Such failure to take protective action under those circumstances would be deliberate indifference to a prisoner's health and safety.

Flint v. Kentucky Department of Corrections, No. 00-5129, 270 F.3d 340 (6th Cir. 2001).

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Federal trial court rules that prison officers did not necessarily violate the Eighth Amendment by beating a prisoner while he was handcuffed and that defendant officers were entitled to qualified immunity in prisoner's federal civil rights lawsuit.

     A prisoner in a federal penitentiary attempted to assault prison staff members with a telephone, and also barricaded his cell by securing a bed sheet to the cell bars. When officers entered his cell, they found a half gallon of homemade wine. They handcuffed him and took him from his cell to a special housing unit. The prisoner, in a federal civil rights lawsuit he subsequently filed against several officers, claims that while he was handcuffed, the officers beat him and kicked him in the face.

     While the officers admit that they used force during the walk to the special housing unit, they state that they did so to restrain the prisoner because, even though handcuffed, he continued to display "disruptive behavior, including kicking them, spitting at them, and verbally assaulting them." Indeed, once he arrived at the special housing unit, he allegedly continued to struggle and was placed in ambulatory restraints.

     The plaintiff prisoner received a laceration on his left eyelid which required stitches, and also claimed that he had lacerations "all over" his body, but medical records only indicate a bruise on his left shoulder. He also claimed that his vision was permanently damaged.

     A federal trial court ruled that the plaintiff "has failed to show that the officers were not acting in a good-faith effort to restore discipline." The mere fact that the prisoner was handcuffed at the time that the officers used force was not enough, standing alone, to show an Eighth Amendment violation.

     Additionally, the court ruled that even if it were to conclude that the plaintiff had established a constitutional violation, the officers would still be entitled to qualified immunity from liability. The court found that it is "not clear that prison officers may not use force on a combative inmate even after that inmate is handcuffed. A reasonable officer could have believed that plaintiff remained a threat to his or others' safety, particularly since the officers' affidavits state that plaintiff remained combative even as they escorted him down the hall."

     "The law is clearly established," the court concluded, "that officers may use more force than necessary when they reasonably expect that a prisoner will fight back," citing Saucier v. Katz, 121 S. Ct. 2151 (2001). (Click here for a prior article on Saucier in AELE's Liability Reporter).

Piedra v. True, 169 F. Supp. 2d 1239 (D. Kan. 2001).

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Year-long delay in building a sweat lodge to allow Native American inmates to practice their religion at a newly opened prison violated their First Amendment free exercise rights, but did not violate their right to equal protection. Court rules, however, that prison officials were entitled to qualified immunity from liability for money damages for the First Amendment claim as the law on the subject was not previously clearly established.

     Prison officials at a newly opened prison in Iowa were sued by inmates who practice the Native American religion, with the plaintiffs claiming that a year-long delay in the construction of a sweat lodge, used for conducting their religion's ceremonies, violated their right to freely exercise their religion under the First Amendment and their right to equal protection of law under the Fourteenth Amendment.

     A federal trial court agreed that the one-year delay was improper and not reasonably related to valid penological interests. Prison officials made the decision to wait for a Native American religion consultant to be hired before proceeding to construct the sweat lodge, but the court found that the state Department of Corrections had a Native American consultant available at "all relevant times." Further, those responsible for the decisions had reason to know that they could anticipate having Native American prisoners at the facilities.

     For practitioners of the Native American religion, the court further found, there was "no alternative" to the presence of a sweat lodge which allowed for performing a "central tenet" of the Native American religion. Additionally, accommodating the Native American prisoners by proceeding to build the sweat lodge would have had "negligible impact" on guards and other inmates and would have been at minimal cost to valid penological interests.

     At the same time, the court found that the plaintiff prisoners' equal protection rights had not been violated, as the defendants were not engaged in "purposeful religious discrimination. Two Native American religious consultants did "not perform as expected," and the hiring of a third one took longer than anticipated, which was the result of "mischance," rather that the product of "discriminatory intent."

     Finally, the court ruled that the defendant officials were entitled to qualified immunity from liability on the First Amendment claims. "As of September of 1998, there was a paucity of case law on the question of the speed by which state officials were required to respond to legitimate requests for a sweat lodge." Accordingly, the court could not say that a "reasonable official" would have understood at that time "that what was done in the present case violated the Free Exercise Clause."

Youngbear v. Thalacker, 174 F. Supp. 2d 902 (N.D. Iowa 2001).

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Mother of juvenile detainee allegedly sexually assaulted and abused by warden in juvenile detention facility did not show that alleged assault was caused by the failure of state employees to mention warden's prior marijuana conviction when writing letters of reference to obtain warden position. Warden had previously received a pardon on that conviction from the governor and the conviction had been effectively expunged, with a criminal records search not revealing it.

     The mother of a juvenile detainee in a Louisiana juvenile facility sued the state, the Department of Public Safety and Corrections, the parish Juvenile Justice District, and the warden of the facility, contending that the warden sexually assaulted and abused her son while he was in custody.

     The lawsuit contended that the warden, while the principal of an elementary school, had previously been arrested and pled guilty to possession with intent to distribute marijuana, a felony. He was then alleged fired for dishonesty and willful neglect, and imprisoned for six months, as well as serving two years of probation. Shortly after that time, he was hired by the state as a teacher at a juvenile training institute, then performed work for the juvenile parole board, and finally, in 1992, was appointed superintendent (warden) of the juvenile detention facility.

     The Plaintiff claimed that the state was negligent in failing to conduct a background check on the warden prior to his being employed in various capacities involving work with juveniles, negligent per se as a result of employing a convicted felon, negligent in failing to properly supervise the warden, negligent in permitting the warden to remove the plaintiff's son from the juvenile center premises, and vicariously liable for the warden's actions.

     The state argued, however, that the warden had received a pardon from the governor for his prior conviction, and the conviction was later also set aside to have the same effect as an acquittal, except for purposes of sentencing in a similar subsequent prosecution. Further, a criminal background check was run before he was hired, which included a state check, a state police check and a national check with the FBI. A National Crime Information Center criminal background report said that there were no matching reports.

     A Louisiana intermediate appeals court found that the plaintiff failed to show that the sexual assault was caused because of "negligent referral" based on the failure of employees of a juvenile training institute to reveal the warden's former drug conviction when writing letters of recommendation for him to be hired for the detention center. The court also noted that the warden made no secret of this prior conviction around juvenile justice district employees or even detainees, and that the district did not remove the warden once the 13-year-old conviction came to light.

     A state statute barring convicted felons from working in a juvenile detention center, LSA-R.S. 15:825.3 "had no application," the court ruled, since it became effective after the warden was hired by the state, it did not apply to the juvenile justice commission, which was the warden's employer at the time of the alleged assault, and the statute also did not require the retroactive removal of current state employees.

K.S., v. Summers, No. 2001 CW 0794, 799 So. 2d 510 (La. App. 2001).

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Policy of county jail which subjected all incoming prisoners to strip searches and delousing procedure without any suspicion of possession of contraband or weapons was unreasonable and county jail officials were not entitled to qualified immunity. Provision of Prison Litigation Reform Act prohibiting awards for mental distress without evidence of physical injury did not apply when plaintiffs were former, as opposed to current, prisoners.

     Prisoners at a county jail in Indiana were subjected to intake searches and delousing procedures before entering the general population. Jail officials would take incoming prisoners to a room where they were instructed to remove their clothing. A written policy instructed personnel, without touching the prisoners, to examine "their entire body to make certain they are not hiding any contraband or weapons on or in their body. Pay particular attention the mouth, ears, hair, armpits, genital area and anal area."

     Following this examination, prisoners were escorted to the shower room, sprayed with a delousing solution, and told to shampoo the solution in and then rinse it off before dressing in orange uniforms. This policy was in place between 1997 and 1999, but in 1999, a new policy regarding admission strip searches was adopted, limiting the circumstances in which strip searches would be permitted, based on facts such as a prisoner's prior convictions, the nature of the charged offense, and reasonable suspicion that prisoner might be hiding weapons or contraband.

     A class action lawsuit challenged the former policy as violative of  prisoner's rights. Granting partial summary judgment for the plaintiffs, a federal court found that the policy was "in effect" a blanket strip search "initiated without justification," and therefore unreasonable under the Fourth Amendment. While the defendants correctly identified their duty to safeguard the jail environment, they "have not demonstrated any factual basis to relate the blanket strip search policy to legitimate security interests."

     The court also rejected the argument that the defendants were entitled to qualified immunity, as the rights at issue were "clearly established at the time of the alleged violation." Additionally, the revised policy adopted in 1999, the court stated, "demonstrates that defendants either had knowledge or reasonably should have been aware of" the need for individualized suspicion to support such searches.

     The court also ruled that the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e), did not require the plaintiffs, former inmates, to produce evidence of physical injury in order to pursue their federal civil rights claims. The provisions of that statute, prohibiting an award of damages for mental or emotional injury suffered while in custody without a prior showing of physical injury does not apply to former prisoners, the court found.

Doan v. Watson, 168 F. Supp. 2d 932 (S.D. Ind. 2001).

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Defenses: Eleventh Amendment Immunity

     Inmate's claims that state department of corrections violated state labor laws by failing to compensate inmates adequately for work assignments and refusal to allow them to bargain collectively were barred by Eleventh Amendment immunity, as were his claim that his rights were violated when he was locked in his cell for twenty days under keep-lock conditions when ammunition was found in several areas of the prison accessible to inmates. Bryant v. N.Y. State Department of Correction Services, 146 F. Supp. 2d 422 (S.D.N.Y. 2001).

Exercise

     Further proceedings were required to determine factually whether plaintiff prisoner was actually deprived of meaningful exercise opportunities for twenty eight days while under a restraint order following his verbal harassment of a correctional officer. Issues included whether the handcuffs and waist chain restraints kept on him prevented him from "meaningfully exercising" in an exercise area, and whether he had any meaningful opportunity for in-cell exercise, as well as the question of whether prison officials' actions were justified under the circumstances. Williams v. Goord, 142 F. Supp. 2d 416 (S.D.N.Y. 2001).

Insurance

     The existence of a surety bond removed the protection of governmental immunity from the sheriff and jailer in a prisoner's suit under North Carolina law alleging negligence and neglect in medical treatment of his hemophilia. Lawsuit alleged failure to properly respond to plaintiff's nose bleed, causing him to ultimately require ten days of hospital treatment. Summey v. Barker, No. COA00-106, 544 S.E.2d 262 (N.C. App. 2001).

Medical Care

     Prisoner could not demonstrate that prison doctor was "deliberately indifferent" to his serious medical needs when all he alleged amounted to inadvertent failure to provide medical care, or, at worst, negligence (ordinary medical malpractice). Additionally, prison doctor relied on specialist's recommendation in determining treatment for avascular necrosis of the femoral head. Palermo v. Correctional Medical Services, Inc., 148 F. Supp. 2d 1340 (S.D. Fla. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner may have sufficiently exhausted "available" administrative remedies if, as he claimed, prison officials failed to comply with his requests to be furnished with grievance forms. Miller v. Norris, #00-1053, 247 F.3d 736 (8th Cir. 2001).

     Further proceedings ordered to determine whether prisoner exhausted available administrative remedies in lawsuit alleging denial of his right to practice his Jewish religion. Plaintiff alleged that prison officials prevented him from pursuing administrative remedies further by either stating or implying that no further avenues were available for him. Lyon v. Krol, #00-3283, 270 F.3d 563 (8th Cir. 2001).

Prisoner Assault: By Inmates

     Prisoner's allegations of negligence against sheriff, county, and detention guard were insufficient to support a federal civil rights lawsuit against them for failure to prevent an assault by another inmate which resulted in a broken jaw. Further, federal court would not hear state law negligence claim, since an identical claim had already been resolved in state court. Lawson v. Toney, 169 F. Supp. 2d 456 (M.D.N.C. 2001).

Prisoner Assault: By Officers

     Prisoner who claimed she was assaulted by jail personnel during her incarceration could not amend her lawsuit to seek damages against individual officers when her initial complaint appeared to name them as defendants only in their official capacity, officer asserted in his answer that he was being sued in his official capacity, and discovery in the case had closed. Lopez-Buric v. Notch, 168 F. Supp. 2d 1046 (D. Minn. 2001).

     Prisoner's claim that a corrections officer intentionally slammed a cell door on a prisoner's hand and then waited an hour before allowing him to get medical attention for serious injuries to his hand, (including two cuts, swollen fingers, and loss of power and feeling in fingers and hand), stated a claim for violation of the Eighth Amendment. Ducally v. Rhode Island Department of Corrections, 160 F. Supp. 2d 220 (D.R.I. 2001).

Prisoner Suicide

     Texas county juvenile detention facility reaches $100,000 settlement in lawsuit brought by family of 15-year-old who hung himself in his cell with a sheet. The week prior to the suicide attempt, another teenager there had succeeded in being transferred to a less restrictive situation by engaging in self-harm, and the surviving family of the decedent argued that he had believed that a correctional employee would be coming by shortly to check on him, would find him hanging, and would have him moved. The officer on duty was late in completing his rounds on the day of the death. Creel v. Denton County, Denton Co., Texas, Cir. Ct., October 5, 2001, reported in The National Law Journal, p. B5 (Jan. 7, 2002).

     County sheriff's statement to the media that a jailor was watching a tv monitor and saw a pretrial detainee put a sheet around his neck was not admissible evidence in a lawsuit over the detainee's suicide. The statement did not come under a public records and reports exception to the hearsay rule, since it was not the result of the jail's investigation. Additionally, the sheriff did not have personal knowledge of the incident. In the absence of any evidence supporting the claim against the jailor, the lawsuit was dismissed. Ellis v. Jamerson, 174 F. Supp. 2d 747 (E.D. Tenn. 2001).

     Police dispatcher/jailer on duty when arrestee committed suicide was not liable, in the absence of subjective knowledge that there was a strong likelihood that arrestee would make the attempt at that time. Arrestee's prior alleged history of suicide attempts, drug abuse and mental problems did not, by themselves, show such knowledge when she did not exhibit suicidal threats or actions on the day of her most recent incarceration. Bowens v. City of Atmore, 171 F. Supp. 2d 1244 (S.D. Ala. 2001).

Private Prisons

     Private company and individual employee defendants who operated a correctional facility under a contract with the state were "state actors" for purposes of a federal civil rights claim under 42 U.S.C. Sec. 1983. Operation of a prison system has traditionally been the exclusive prerogative of the state, so that the state's delegation of its duties to private entities resulted in them acting under color of state law. Lawsuit was ultimately ruled frivolous, however, since the record showed prompt attention to plaintiff's medical needs. Palm v. Marr, 174 F. Supp. 2d 484 (N.D. Tex. 2001).

Sexual Assault

     Prisoner stated an Eighth Amendment claim for sexual assault against private medical service employees brought into correctional facilities. Prisoner, who was pregnant at the time, claimed that two nurses sexually assaulted her by conducting an internal exam without gloves, asking if she was HIV positive, giving her hugs and kisses, and giving her one of their home phone numbers. Prisoner claimed that this caused light bleeding and resulted in her beginning labor four weeks early. Goode v. Correctional Medical Services, Inc., 168 F. Supp. 2d 289 (D. Del. 2001).