FEATURED CASES

WITH LINKS TO THE OPINIONS

Firing of state correctional officer, allegedly for refusing to take a mandatory tuberculosis test, was not disability discrimination in violation of the federal Rehabilitation Act. Appeals court rejects the argument that the employer regarded him as disabled on the basis of his alleged sensitivity to the test.

     An Illinois correctional officer working for the state Department of Corrections had taken and passed a tuberculosis skin test as part of a pre-employment medical assessment, suffering no adverse reaction to the test. Two years later, as part of an annual screening, he took another tuberculosis test, called a "Mantoux test," the results of which were also negative. This time, however, he experienced weakness, dizziness, disorientation, aches in the arm and shoulder, and labored breathing.

     As a result, in the next two years, during annual screenings, he submitted chest x-rays in lieu of undergoing the Mantoux test. In a subsequent year, the employer required Mantoux testing for all employees who had not previously tested positive, and the officer refused to submit to it and was suspended from work for ten days.

     A medical examination was conducted, and the doctor found that the officer's symptoms previously in reaction to the test were more characteristic of a "hyperventilation reaction" than an allergic reaction, and he recommended that any future Mantoux test be administered in a hospital setting with a Heparin lock. [Heparin is an anti-coagulant, which prevents blood clotting]. The doctor stated that serial chest x-rays would be a last resort, because they can detect active tuberculosis but not exposure to or early onset of the disease.

     Following this, the employer demanded that the officer take the Mantoux test or be fired. He refused and was terminated, and filed a disability discrimination lawsuit under both the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794.

     While finding that the alleged sensitivity to the tuberculosis test did not qualify as an "actual disability" under either statute, the trial court allowed the plaintiff to proceed under the Rehabilitation Act based on the theory that the employer discriminated against him because of his "record of disability and its perception that he was disabled." After further proceedings, it ruled that the prior adverse reaction to the test did not constitute a record of disability. Additionally, based on the fact that the officer continued to work without restrictions for years after suffering the adverse reaction, the court concluded that a reasonable jury could not find that the Illinois Department of Corrections considered him to be disabled.

     A federal appeals court upheld this result. It noted that the employer's tuberculosis testing requirement is a blanket policy that applied to all correctional officers at the facility--not only those identified as disabled--and therefore "does not constitute an impermissible blanket policy." Such an impermissible blanket policy would be one which imposes testing automatically only on all disabled workers without any individualized assessment, but that was not the case here.

     The appeals court found no real evidence that the employer regarded the officer as disabled and acted with discriminatory intent in firing him.

     Patterson v. Illinois Department of Corrections, #01-3456, 37 Fed. Appx. 801 (7th Cir. 2002).

     »Click here to read the text of the decision on the AELE website.

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California sheriff acted on behalf of the county in establishing a policy segregating gang members in a special unit in the county jail, rather than on behalf of the state. The county, therefore, could be liable for his actions in continuing to hold a former gang member in the unit, which allegedly resulted in the prisoner being beaten to death by five of his cellmates. Eleventh Amendment immunity did not apply.

     The surviving family of a county jail prisoner who was beaten to death by five of his cellmates claimed that the decision to house him in a special gang unit was responsible for his death. He had previously been in a cell in the general population awaiting trial for armed robbery, but was transferred to the special gang unit when officials learned that he had a tattoo associated with a particular gang.

     The prisoner had, in fact, previously been associated with members of a gang, but had disavowed any relationship with the gang prior to his incarceration. Accordingly, once in the gang unit, he immediately became a target of threats and assaults by other inmates. According to the complaint in his family's federal civil rights lawsuit, both the prisoner and his family notified jail officials that he feared an attack and requested a transfer to another jail cell, but he remained in the gang unit where he was subsequently attacked and beaten to death.

     The lawsuit named the county as a defendant, but the county argued that it was not liable for the sheriff's actions because the sheriff was acting on behalf of the state in setting policies for the operation of the county jails. As a state actor, the county argued, the sheriff was immune from liability under 42 U.S.C. Sec. 1983 because of Eleventh Amendment immunity.

     A federal appeals court rejected this argument, upholding the trial court's denial of a motion to dismiss.

     The county sheriff acted as an official of the county, rather than the state of California, the court ruled, in establishing and implementing security procedures for the county jail. California's state constitution designates sheriffs as county officials and statutory provisions grant counties the "ultimate power over the jail," including the power to transfer control of the facilities from the sheriff to a county-created department. Further, the county, not the state, must indemnify sheriffs for any monetary judgments against them.

     As administrator of the county jail, the sheriff is responsible for developing and implementing policies pertaining to inmate housing, the court found, including the establishment of policies and procedures for the segregation of inmates who either pose a danger or are a target for assault, as is necessary "to obtain the objective of protecting the welfare of inmates and staff." Cal. Code Regs. tit. 15, Sec. 1053.

     In this case, the sheriff's decision to place the deceased prisoner in the gang unit was made "pursuant to his policy of segregating gang members from other inmates." While the circumstances surrounding the prisoners' transfer to the gang unit and the reasons why he remained there in the face of danger are "unclear," the court commented, "what is clear, however, is that the actions of the jail officials were guided, or at least governed, by the sheriff's policy." Since this policy was established and implemented by him as the jail administrator, he was acting on behalf of the county in placing the prisoner in the gang unit of the jail. "Therefore, the county is now subject to Sec. 1983 liability for his actions."

     Cortez v. County of Los Angeles, #00-56781, 294 F.3d 1186 (9th Cir. 2002).

     »Click here to read the text of the decision on the web. (.pdf format)

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•••• EDITOR'S CASE ALERT ••••

Segregation of male homosexual inmates was justified by legitimate penological interests in prison safety and security. Preventing homosexual and heterosexual inmates from sharing cells was a rational means of preventing violence between groups and preventing homosexual inmates from sharing cells was a rational means of preventing sexual activity and spread of sexually transmitted diseases. Appeals court also upholds disparate treatment between male homosexual and female homosexual prisoners.

     A prisoner in a jail in Virginia claimed that his equal protection rights were violated by correctional officials treating him different from other inmates because of his gender and sexual preference. Specifically, he claimed that the defendants denied his requests to move from his single-occupancy cell into a double-occupancy cell because he is a homosexual male.

     A federal appeals court, upholding the dismissal of the plaintiff prisoner's complaint, found that, even if all his allegations were true, his rights had not been violated.

     The plaintiff claimed that he was treated differently from similarly situated heterosexual males and homosexual females, both of whom are housed in double-occupancy cells. The appeals court assumed, for the purposes of the appeal, that the plaintiff was intentionally treated differently because he is a homosexual male.

     The appeals court found that the plaintiff's case did not involve a "fundamental right," and further that homosexual males are not a "suspect class." There is no fundamental right to be held in a double-occupancy cell, the court stated and "there also is no fundamental right to engage in homosexual acts generally." Further, even if a right to engage in homosexual acts existed, "it would not survive incarceration."

     Outside of the prison context, the court noted, discrimination on the basis of sexual preference is subject to rational basis review, citing Romer v. Evans, 517 U.S. 620 (1996). When equal protection challenges arise in a prison context, however, the court stated, "courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their facilities in a safe and secure manner."

     In a prison context, therefore, the court must determine whether the disparate treatment is "reasonably related to [any] legitimate penological interests," and the plaintiff, in order to prevail, must "allege facts sufficient to overcome the presumption of reasonableness applied to prison policies."

     The appeals court disagreed with the plaintiff's argument that there is "no legitimate penological interest for the segregation of homosexual, male inmates." Prison safety and security, the court noted, are legitimate penological interests that must be considered. Among the "many valid reasons" that support the conclusion that "homosexuals should not be assigned to double-occupancy cells," the court cited the following:

1. Housing homosexuals with other homosexuals could lead to sexual activity between cellmates, which would jeopardize prison security.

2. Sexual activity between cellmates also raises concerns about the transmission of diseases, such as HIV.

3. Housing homosexuals with heterosexuals might cause friction between cellmates that potentially could lead to violence. "In light of examples of anti-homosexual violence in our society, we cannot ignore the fact that homosexuals are subject to bias-motivated attacks from heterosexuals."

4. "Studies also have shown that inmates known to be homosexuals are at a greater risk of being sexually attacked in prison." [The court cited Robert Dumond, Inmate Sexual Assault: The Plague that Persists, 80 Prison J. 407 (2000)].

     The court concluded that not allowing heterosexuals to share cells with homosexuals is a rational means of preventing violence between the groups, and not allowing homosexuals to share cells with other homosexuals is a rational means of preventing sexual activity and the spread of sexually transmitted diseases. The defendant officials, therefore, are "not constitutionally precluded from limiting homosexuals to single-occupancy cells."

     The plaintiff in the case, however, also claimed that the facility discriminated against him because he is a male. "We must, therefore, consider whether the gender-based dimension of the alleged discrimination is rationally connected to safety and security concerns in prison, while again keeping in mind the differential standard applicable to decisions regarding day-to-day prison management."

     The court found that a difference in treatment between male homosexuals and female homosexuals was justified by the fact that "each gender faces unique safety and security concerns," with it being a "well-documented reality that institutions for females generally are much less violent than those for males." [The court cited Kimberly R. Greer, The Changing Nature of Interpersonal Relationship in a Women's Prison, 80 Prison J. 442 (2000); Klinger v. Dep't of Corr., 31 F.3d 727 (8th Cir. 1994) ("male inmates...are more likely to be violent and predatory than female inmates.")] Additionally, the court noted that studies show that "male inmates are more likely than female inmates to have homophobic attitudes. See Christopher Hensley, Attitudes Toward Homosexuality in a Male and Female Prison, 80 Prison J. 434 (2000).

     Because the "safety and security concerns that arise from housing homosexuals in double-occupancy cells are more significant with respect to males than they are with respect to females, we conclude that the complained of gender-related disparate treatment in the housing of homosexuals is rationally calibrated to address legitimate penological concerns," the court asserted.

     Veney v. Wyche, #01-6603, 293 F.3d 726 (4th Cir. 2002).

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Federal appeals court rules that seizure of funds in prisoner's account derived from his veteran's disability benefit check to pay a court-ordered fine violated his rights under a federal statute. Court also rules that doing so without a pre-deprivation hearing could violate due process and that the prisoner's rights were enforceable under a federal civil rights statute.

     A New Jersey prisoner claimed that prison officials violated his right to constitutional due process as well as his statutory rights by seizing money in his account which was derived from a veteran's disability benefits check to pay for a court-ordered fine without first providing him with a pre-deprivation hearing.

     The statute in question, 38 U.S.C. Sec. 5301(a) prohibits the attachment, levy or seizure of a veteran's disability benefit. Overturning the trial court's dismissal of the prisoner's lawsuit, a federal appeals court has found that this federal statute was in conflict with a state statute, N.J.S.A. Sec. 2C:43-3.1(a)(1, 3) which allowed the seizure of funds in inmate accounts to pay a mandatory assessment in favor of the state's crime victims compensation board.

     The appeals court found that the state statute was void to the extent that it conflicted with the federal statute, under the Supremacy Clause of the U.S. Constitution, Art. 6, cl. 2, making federal law and constitutional provisions the supreme law of the land. It further ruled that the federal statute did not have an implied exception allowing for the collection of veteran disability benefits to compensate crime victims simply because state law requires the Department of Corrections to provide for an inmate's care and maintenance. The court noted that the U.S. Supreme Court had rejected a similar argument in Bennett v. Arkansas, 485 U.S. 395 (1988), concerning the attempted attachment of Social Security benefits to defray the cost of incarceration.

     The appeals court also found that the federal statute created a right that is "enforceable" under 42 U.S.C. Sec. 1983. It additionally ruled that the claim that the state took the funds from the prisoner's account without a pre-deprivation notice or hearing supported a claim for violation of procedural due process.

     Finally, the appeals court held that the trial court erred in also dismissing the prisoner's claim that correctional employees retaliated against him because he exercised his federal constitutional right to seek access to the courts to assert his due process and statutory claims.

     Higgins v. Beyer, #99-5556, 293 F.3d 683 (3rd Cir. 2002).

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     Editors Note: The U.S. Supreme Court has not yet construed Sec. 5301(a) to determine whether prison officials can attach or seize funds in an inmate's account derived from a veteran's disability benefits check. In addition to the ruling reported above, however, another federal appeals court recently held that prison officials violated this federal statute protecting veteran's benefits from attachment by creditors by placing a hold on an inmate's trust account which was funded by such benefits, in order to pay for goods and services that prisoner had purchased at a time when the funds were not yet in the account. That court also ruled that the defendant officials were entitled to qualified immunity from damages because of the lack of prior court decisions on the subject. Nelson v. Heiss, No. 00-55523, 271 F.3d 891 (9th Cir. 2001), reported in 2002 JB Apr.

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•••• EDITOR'S CASE ALERT ••••

Correctional facility's policy requiring pregnant prisoner to obtain a court order for and pay all costs of a non-therapeutic abortion, which allegedly prevented a prisoner from obtaining a timely abortion while incarcerated did not violate her Fourteenth Amendment rights. Federal court rules that the prisoner's demand for a non-therapeutic abortion for financial and emotional reasons was not a "serious medical need" for purposes of an Eighth Amendment claim.

     A woman incarcerated in a Louisiana correctional facility was serving a sentence for battery following revocation of probation, and a routine physical exam conducted upon intake revealed that she was pregnant. She allegedly immediately told correctional personnel that she wished to terminate the pregnancy. She allegedly was informed that in order to obtain an abortion she would have to hire an attorney and obtain a court order authorizing the procedure. She was also told that medical personnel would not provide the abortion as a part of inmate medical care since the procedure was not medically necessary.

     She was subsequently also informed that under no circumstances would the Sheriff pay for the abortion and its attendant costs, since it was not medically required. She was over 15 weeks pregnant at the time. An attorney for the prisoner subsequently requested that she be excused from serving the rest of her sentence because she was pregnant, but did not inform the court that the prisoner wanted an abortion. The court denied the motion on the basis of insufficient evidence that the prisoner would not receive adequate prenatal care at the facility.

     The prisoner was ultimately released when she was slightly more than 25 weeks pregnant and was then unable to obtain an abortion in Louisiana. She then gave birth to the child and placed it for adoption. She filed a lawsuit under 42 U.S.C. Sec. 1983 claiming that her Fourteenth Amendment and Eighth Amendment rights were violated by the denial of a timely abortion while she was incarcerated.

     The federal trial court ruled that the alleged policy requiring a prisoner to hire an attorney, obtain a court order, and pay all costs in order to obtain a non-therapeutic abortion did not violate the inmate's rights under the Fourteenth Amendment. It found that there was a "valid, rational connection" between the policy, inmate security, and avoidance of liability. The trial court also found that accommodating the prisoner's abortion request would have an effect on the use of limited resources available, requiring one or more guards being assigned to accompany the prisoner to the nearest abortion facility.

     The court pointed out that the policy in question did not prohibit a prisoner from obtaining an abortion. Instead, the policy was a "clear recognition of the fact that Plaintiff was incarcerated and therefore not free to come and go as she pleased."

     The trial court expressed its disagreement with a federal appeals court decision in Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988), described as the only case to find a policy like the one at issue unconstitutional. In that case, the appeals court found that the right to terminate a pregnancy survives incarceration and that it required the prison to fund the procedure for inmates unable or unwilling to pay. That case also held that the Eighth Amendment required the county to provide abortions to the inmates because abortion is a serious medical need.

     The trial court noted that the Monmouth decision gave inmates "far greater protections of the abortion right in prison than they ever would have been entitled to in the free world," since it is established that the state has no obligation to fund, procure, or facilitate abortions for its citizens under Maher v. Roe, 432 U.S. 464 (1977).

     The trial court also rejected the argument that the prisoner's request for a non-therapeutic abortion for financial and emotional reasons was a "serious medical need." An "elective abortion sought for non-medical reasons," the court stated, "is simply lacking in similarity and intensity to the other medical conditions that have been found to be serious medical needs under the Eighth Amendment." The court acknowledged that the need for an abortion would be a serious medical need if it had been necessary to save the plaintiff prisoner's life, but that the "inconvenience and financial drain of an unwanted pregnancy are simply insufficient in terms of the type of egregious treatment that the Eighth Amendment proscribes."

     Victoria v. Larpenter, 205 F. Supp. 2d 580 (E.D. La. 2002).

     »Click here to read the text of the decision on the AELE website.

EDITOR'S NOTE: In a footnote, the trial court acknowledged that there was actually one additional case, Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999), which adopted the ruling in Monmouth, although doing so without any analysis in the process of granting the plaintiff a temporary restraining order. Cases denying relief to prisoners in cases concerning access to abortion include Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991) (mere negligence in denying an inmate access to an abortion does not state a claim for a constitutional violation) and Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991) (finding that a prisoner's right to an abortion was not clearly established).

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North Dakota inmate's claim that he was denied treatment altogether for his hepatitis C, and that the correctional facility's medical director prevented him from seeing doctors because of his prior lawsuits against her adequately alleged a violation of his Eighth Amendment rights.

     A North Dakota inmate claimed that he was denied treatment for his hepatitis C, and that the correctional facility's director of medical services prevented him from seeing doctors for his ailment as a result of the prisoner's prior lawsuits against her.

     The trial court, acting under 28 U.S.C. Sec. 1915A dismissed the lawsuit for failure to state a claim. A federal appeals court disagreed with this decision. It noted that the prisoner alleged "more than a disagreement over the proper course of treatment for his hepatitis C: he alleged that he was denied treatment entirely," and that the medical director was using her position to block his treatment because of his prior lawsuits against her.

     The appeals court found that this stated a claim for deliberate indifference to serious medical needs. The Complaint also adequately stated a federal civil rights claim against Medcenter One, the correctional department's medical services contractor, by alleging that its hepatitis C treatment protocol and its doctors' complicity with the actions of the medical director were damaging his health in violation of his Eighth Amendment rights.

     Burke v. North Dakota Corrections and Rehabilit., No. 02-1922, 294 F.3d 1043 (8th Cir. 2002).

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County jail inmate who was transferred to a state facility before he commenced his federal civil rights lawsuit claiming that correctional officers assaulted him had no available administrative remedies to exhaust before filing suit, since the county jail's administrative remedies were only available to facility residents.

     A New York federal trial court has rejected the argument of defendant correctional officers who sought to have a prisoner's lawsuit against them for allegedly assaulting him dismissed for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a).

     The court found that the prisoner, who had been transferred from the county jail where the incident occurred to a state facility before he began his federal civil rights lawsuit, had no administrative remedies available to him. While the county jail had a "resident grievance and complaint procedure," the rules provided that this procedure for addressing prisoner complaints was only available to current residents of the jail.

     The court noted that plaintiffs who are not in custody at the time of the commencement of an action challenging prison conditions are not considered "prisoners" under section 1997e(a) and therefore "are not subject to the exhaustion requirement under this provision," citing Greig v. Goord, 169 F.3d 165 (2d Cir. 1999). "It makes no sense to apply this procedural requirement to former inmates who can no longer avail themselves of prison grievance procedures."

     The court found that the "same reasoning should apply here. Even though the plaintiff remained an inmate, and therefore was a 'prisoner' under section 1997e(a), when the action was commenced he was not a prisoner at the correctional facility where the incident allegedly occurred, having been transferred to an upstate facility maintained by the State of New York."

     Accordingly, no administrative remedies were available to the plaintiff, based on the facility's own rules, which stated that "the availability of these procedures is limited to 'complaints while you are a resident of this Facility.'"

     In making this determination, the court relied on the New York state prison system's website where a prisoner's whereabouts in the New York State prison system may be tracked, www.docs.state.ny.us at Inmate Information--Location/Status Legal Dates/etc. The court took judicial notice of the records posted there as to the date of the plaintiff prisoner's transfer to the state facility.

     Ligon v. Doherty, 208 F. Supp. 2d 384 (E.D.N.Y. 2002).

     »Click here to read the text of the decision on the AELE website.

     EDITOR'S NOTE: A similar issue was raised in Thomas v. Capt. Henry, No. 02-2584, 2002 WL 922388 (S.D.N.Y. May 7, 2002). The plaintiff in that case had been transferred from a New York City facility (Rikers Island) to a state facility. The complained of incident occurred at the city facility and at the time the lawsuit was commenced, the plaintiff had been transferred to the state correctional facility. In that case, the court held that the transfer did not relieve the plaintiff of the administrative grievance procedure since, in the facility involved, the plaintiff was able to use the mail to avail himself of the administrative procedures available there.

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Prisoner's claim that corrections officer returned a weapon (a laundry bag filled with rocks and cement) to his fellow-inmate assailant and thereby facilitated a second assault on him by a fellow inmate adequately stated a claim for deliberate indifference by the officer to the risk of such a second attack.

     An Indiana prisoner sued a corrections officer for alleged violations of his Eighth and Fourteenth Amendment rights for "facilitating" and failing to break up a prison fight in which he was attacked by a fellow prisoner a second time, following a prior assault. The lawsuit did not attempt to blame any prison officials or employees for the first attack, but contended that the officer acted with deliberate indifference to the plaintiff's safety in connection with the second attack.

     The trial court granted summary judgment to the defendant officer after allowing only limited discovery. A federal appeals court has now ruled that this action was erroneous, ordering further proceedings.

     The two prisoners were in the facility's recreation yard on an afternoon, and the assailant allegedly "crept up behind" the plaintiff, and "thwacked him with a mesh laundry bag loaded with rocks, dirt, bricks, and cement" that he had gathered in the yard." The corrections officer present had summoned assistance, calmed the assailant down, and taken the laundry-bag weapon from him, and then escorted the assailant away from the plaintiff and toward the recreation gate.

     The plaintiff and defendant disputed what occurred next. What was undisputed was that the assailant regained his laundry-bag weapon from the officer, while it was disputed "how he managed to do this." Some witnesses claimed that the assailant grabbed the bag from the officer, while others said that after a conversation, the officer gave the bag back to him. Still other witnesses recalled that the officer handed the bag off to the assailant as the plaintiff was charging at both the officer and the assailant.

     With the bag weapon restored to him, the assailant broke away from the officer and attacked the plaintiff again with his make-shift weapon. The plaintiff also had a "weapon of sorts," a golf club from the recreation yard's miniature golf course. This proved, however, to be no match for the assailant's bag, and the plaintiff ended up on the "losing side of the fight, bleeding profusely." The second fight continued until three other officers arrived and restrained the plaintiff while the first officer restrained the assailant. The plaintiff claimed that, until the three additional officers arrived on the scene, the first officer "stood by and watched" the assailant "continuously beat him." He suffered a dislocated finger and nerve damage in his left hand.

     The appeals court found that there was a genuine issue of material fact as to whether the defendant officer acted with deliberate indifference to the substantial risk of harm from the second attack. Accepting the plaintiff prisoner's version of the events, which was supported by affidavits stating that the officer "re-armed" the assailant by returning the laundry bag to him, there was sufficient evidence to permit a trier of fact to find that he acted with deliberate indifference. Even if he was somehow unaware of the fact that a laundry bag loaded with rocks and bricks could be a weapon before the events of that afternoon, "he witnessed the first fight, and that alone was sufficient notice."

     The defendant officer further argued that even if a factfinder found that he actually returned the bag to the assailant, this was a "reasonable response and possibly his only option, given the type of weapon--a laundry bag filled with rocks." The appeals court rejected this argument, because "it is not clear why arming one of the two participants in the earlier fight was either the only option, or even a reasonable option," if, as the officer asserted, it was the plaintiff who tried to resume fighting. The defendant officer, therefore, could not avoid "a trial based on his alleged lack of other options."

     The appeals court also ruled that the plaintiff was not entitled to a copy of a prison investigation file concerning the fight, since the file had information that the prison had valid security reasons to maintain in a confidential manner. "We recognize," the court stated, "that the government has an interest in maintaining the confidentiality of files containing sensitive information regarding on-going investigations." The trial court's withholding of the file was "not unreasonable" given the plaintiff's seeking of information regarding his assailant's potential affiliation with the Aryan Nation, "information that the prison had valid security reasons to maintain in a confidential manner."

     Peate v. McCann, #00-2937, 294 F.3d 879 (7th Cir. 2002).

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Jury properly awarded $22,500 to ex-gang member slashed with razor by another prisoner. Evidence was sufficient for jury to conclude that prison employees acted with deliberate indifference to safety of the prisoner, who had previously complained about officers at the facility, and allegedly left the door to the assailant's cell open, facilitating the assault.

     A Texas prisoner claimed that three prison employees acted with deliberate indifference in allegedly leaving the door to another prisoner's cell open, thereby facilitating this prisoner's escape from his cell to slash the plaintiff with a razor blade. A jury returned a verdict for the plaintiff prisoner, awarding $22,500 in damages against two officers.

     A federal appeals court has upheld the jury award and rejected the officers' claim that they were entitled to qualified immunity.

     The plaintiff in the case had joined a prison gang known as the "Mexican Mafia" upon arriving at the facility, but allegedly quit the group ten years later. Despite this, he continued to be classified as a member of the group by prison authorities. His assailant was a member of the gang. While the defendants argued that the attack was part of the gang's "blood-out" policy of murdering ex-gang members, the plaintiff stated his belief that the assault was "orchestrated" by officers.

     On the day of the attack, the assailant was removed from his cell and provided recreation and a shower, and then allegedly strip-searched and placed back in his cell. While the officer accompanying him claims to have then closed the cell door and pulled on it to make sure it was locked, the door was not secure. The section door was not locked. Subsequently, the plaintiff was taken to recreation "out of turn," and placed in handcuffs to be escorted there. The assailant then escaped from his cell and passed through the unlocked section gate, attacking the plaintiff prisoner from behind, knocking him down, and then slashing his face and neck with a razor blade.

     While the officer escorting the plaintiff claimed to have attempted to help, the plaintiff claims that the only thing the officer said was "stop that, you are going to get us into trouble." He also stated that the attack did not cease until a second officer arrived. The plaintiff required 52 stitches for his injuries. He also claims that the next day a captain asked him if he was feeling any better and then told him, "You know what? I don't like a snitch. Consider yourself lucky that you are still alive."

     The plaintiff had previously complained about various officers allegedly mistreating and threatening him, and stating that one of the officers had threatened to have him assaulted, and that he felt that his life was in danger. His letters of complaint were seen by the captain, who was in charge of the administrative segregation unit in which the plaintiff was housed.

     The plaintiff's argued theory was that the captain conspired with two officers to allow an inmate to escape so that he would be attacked.

     In upholding the jury's award, the appeals court stated that "though the present case involves an extraordinary set of circumstances, we do not believe that there was insufficient evidence on which the jury could base its decision. The jury was offered more than a scintilla of evidence and was free to make credibility determinations based on that evidence." While the defendants claimed that the case was "nothing more than a colossal coincidence," the jury "obviously disagreed," and the trial judge did not err in refusing to set the jury's determination aside.

     The appeals court also rejected the argument that the defendants were entitled to qualified immunity. All of the defendants' arguments rely "on the assumption that" they were "never aware that the attack was going to happen and that they acted reasonably after the events started to unfold." The claim against them, however, was based on deliberate indifference on their part, and the "jury found that" the defendants "essentially orchestrated the attack. This is in no way reasonable behavior for a prison official," and therefore no qualified immunity was available.

     Cantu v. Jones, #01-50905, 293 F.3d 839 (5th Cir. 2002).

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Trial court's interim order requiring prison officials to make weekly deposits of $15 in Jewish prisoner's inmate account to allow him to buy kosher foods from the commissary at cost was not violative of the Eleventh Amendment since it addressed the ongoing alleged violation of denial of a religious diet, rather than representing an award of damages for past injuries.

     A Jewish prisoner in Arkansas prisoner sought an injunction directing prison officials to furnish him with a kosher diet. The trial court held that the prisoner was entitled to relief under the Religious Land Use and Institutionalized Person Act of 2000, 42 U.S.C. Sec. 2000cc et seq. and the First Amendment, and ordered the parties to "confer, negotiate in good-faith and report back to the Court" on a proposal consistent with the court's opinion.

     The parties failed to reach an agreement. The prison officials argued for a kosher-meal plan with food items processed through the prison kitchen, while the prisoner sought prepackaged items, "fearing that the food prepared in defendants' non-kosher kitchen could easily become non-kosher." While the trial court ordered the officials to come forward with detailed information on its food resources and its efforts to find kosher food, it also ordered the defendants to supply the prisoner, in the interim, with various kosher food items and weekly deposits of $15 in his prison account to be used only to buy kosher food from the commissary at cost.

     The Defendants appealed that portion of the order requiring the deposit of the cash payments, arguing that the Eleventh Amendment barred such relief. They relied on Campbell v. Arkansas Dept. of Corr., 155 F.3d 950 (8th Cir. 1998), overturning on Eleventh Amendment grounds, an award of $74,000 in front pay to a demoted warden based on his First Amendment claim against correctional officials. Such front pay, the court in that case found, would necessarily be paid from public funds in the state treasury, so the Eleventh Amendment immunity of states applied.

     Rejecting this argument, a federal appeals court reasoned that Campbell involved compensation for a "static, past constitutional violation--his demotion." In the immediate case, the trial court's remedy "targets a continuing constitutional violation," rather than seeking to make the plaintiff prisoner whole based on a past wrong. Accordingly, the appeals court  viewed the $15 weekly deposits, despite requiring the expenditure of funds, as "providing only prospective relief," such as an injunction does, which is not barred under the Eleventh Amendment according to Edelman v. Jordan, 415 U.S. 651 (1974). Under Edelman, the issuance of such an injunction may "affect" a state treasury without violating the Eleventh Amendment if the fiscal consequences are the "necessary result of compliance with decrees which by their terms were prospective in nature."

     Love v. McCown, #02-1155, 38 Fed. Appx. 355 (8th Cir. 2002)

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Manual search of prisoner's rectal cavity for the purposes of preventing drugs from entering an administrative segregation unit did not violate his Fourth Amendment or Eighth Amendment rights when carried out in prison infirmary's emergency room by medical personnel. Alleged violation of prison regulation requiring the exhaustion of other search methods first did not establish a constitutional violation.

     A California prisoner contends that a manual search of his rectal cavity violated the Fourth Amendment prohibition on unreasonable searches and seizures as well as his Eighth Amendment rights against cruel and unusual punishment.

     A federal appeals court has rejected both of these claims.

     As for the Fourth Amendment claim, the appeals court ruled that the defendants had a valid penological objective of preventing drugs from entering the administrative segregation unit where the plaintiff prisoner and others being searched were about to be transferred. Further, while the plaintiff complained that the search "caused pain," the undisputed facts show that the search was "conducted in a reasonable manner," according to the court.

     "It was performed in the infirmary's emergency room, by a doctor who was assisted by a registered nurse and a medical technical assistant. The doctor used a lubricated plastic scope to conduct the search, which lasted a minute or less." The plaintiff did not complain of pain during the search, and he also received a medical evaluation from a medical technical assistant following the search.

     While the plaintiff argued that the defendants must show, in addition to the foregoing, that they complied with prison regulations requiring that prison officials exhaust all "less intrusive search methods" before performing a manual rectal cavity search, the fact that prison regulations set "higher standards for searches of inmates than does the Fourth Amendment does not mean that prison officials must comply with those standards to comply with the Fourth Amendment."

     The appeals court held that no Eighth Amendment violation was present since the prisoner did not show either that the prison officials inflicted pain on him "maliciously and sadistically for the very purpose of causing harm," or that they were deliberately indifferent to his medical needs. The search was for a legitimate purpose of ensuring that drugs were not brought into administrative segregation, and the plaintiff was offered medical assistance immediately after the search, and again a few days later, "belying any claim that defendants were indifferent, let alone deliberately so, to plaintiff's medical needs."

     Wiley v. Serrano, #00-55997, 37 Fed. Appx. 252, 2002 U.S. App. Lexis 9736 (9th Cir. 2002).

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New York female prisoner adequately alleged that correctional officials knew of prior sexual misconduct of correctional officers with female inmates, including the one she said sexually assaulted her, but failed to take action to prevent it. Defendant officials were not entitled to qualified immunity.

     A New York federal trial court, denying the defendant officials' motion to dismiss, ruled that a former prisoner adequately alleged that a correctional superintendent and other supervisory personnel were grossly negligent in supervising their subordinates, and knew or should have known of complaints of sexual misconduct by correctional officers with female inmates. The plaintiff claimed that a correctional officer at the facility sexually assaulted her in her cell at night, awakening her from sleep and restraining her before compelling sexual activity.

     The court also found that the plaintiff inmate had exhausted available administrative remedies, having brought her complaint to the officer's supervisor, at which point the superintendent of the facility was required to determine whether the harassment was bona fide and deliver a decision within twelve working days, which he failed to do. Her allegations were also brought to the attention of the Inspector General's office, Attorney General's office and District Attorney's office.

     The court rejected the argument that the defendants were entitled to qualified immunity. New York state law provides that a person is deemed incapable of consent to a sexual act when they are committed to the care and custody of the state department of correctional services. New York Penal Law Sec. 130.05. If the plaintiff prisoner's allegations are true, the court found, no "officers of reasonable competence could disagree" that the defendants' actions were unlawful, the court stated.

     The plaintiff alleged that the defendants knew that corrections officers at the prison engaged in sexual contact with female prisoners but failed to act--allowing the abusive practice to continue. She stated that the defendants previously received complaints from female prisoners regarding sexual abuse by male guards, including the one she said assaulted her. "These complaints were purportedly corroborated by the incidence of pregnancies among inmates," so that the defendants knew or should have known of the illegal conduct, but failed to adequately act to prevent the alleged assault on the plaintiff.

     Morris v. Eversley, 205 F. Supp. 2d 234 (S.D.N.Y. 2002).

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Federal appeals court overturns dismissal of  federal civil rights claim that prison policy prohibiting same-sex kissing and hugging during visits, except for family members, violated the right to equal protection of the homosexual partner of an inmate.

     The Arizona Department of Corrections prohibits same-sex kissing and hugging during prison visits, unless the visitors are members of the inmate's family. This policy was challenged in a federal civil rights lawsuit by the homosexual partner of a inmate who claimed that the policy violated his right to equal protection.

     The Department of Corrections asserted, without corroborating evidence, that the visitation policy furthered a legitimate penological interest of correctional safety, and the trial court agreed, dismissing the lawsuit for failure to state a claim. A federal appeals court has reversed, reinstating the lawsuit.

     The challenged regulation on inmate visitation provides: "Kissing and embracing shall be permitted only at the beginning and end of each visit and shall not be prolonged." These same regulations, however, further provide that "same-sex kissing, embracing (with the exception of relatives or immediate family) or petting" is prohibited.

     Whitmire, the plaintiff, and William Lyster, the incarcerated prisoner, are an openly gay couple. Lyster was instructed by prison staff that he was not permitted to hug or kiss Whitmire during visits, and after Lyster briefly hugged Whitmire during a visit, Lyster was told by ADOC officials that "if that happens again it will be a long time before you see him again."

     The appeals court stated that:

A dismissal on the pleadings, without requiring any evidence corroborating that a rational connection exists between the visitation policy and correctional safety, is appropriate only when a common-sense connection exists between the prison regulation and the asserted, legitimate governmental interest. Here, the ADOC asserts that its visitation policy protects inmates from being labeled as homosexuals and from being targeted for physical, sexual, or verbal abuse on account of such labeling. The ADOC's visitation policy, however, does not possess a common-sense connection to the concern against homosexual labeling; thus, the district court erred when it upheld the ADOC policy without requiring any corroboration.

Common sense indicates that an inmate who intends to hide his homosexual sexual orientation from other inmates would not openly display affection with his homosexual partner during a prison visit. Rather, prisoners who are willing to display affection toward their same-sex partner during a prison visit likely are already open about their sexual orientation. Whitmire's and Lyster's situation is illustrative. Lyster openly told other prisoners that he was gay. In situations like this, Arizona's policy prohibiting same-sex displays of affection during visitation does nothing to prevent the marking of homosexual prisoners. See Espinoza v. Wilson, 814 F.2d 1093, 1098 (6th Cir. 1987) (finding the homosexual "marking" justification unbelievable when "'neither [plaintiff] tried to hide the fact that they were homosexual'").

     The court therefore remanded for further proceedings, including the development of a factual record, including, as a concurring judge on the panel noted, "how prison visits are arranged or structured, where they take place, whether inmates from several cell blocks enjoy visitation rights at the same time, how homosexual inmates other than Lyster might behave in the absence of the challenged policy, whether an open display of physical affection between Whitmire and Lyster might affect other prisoners' behavior even though Lyster's sexual orientation were already known," and "other facts that may bear upon why prison officials, exercising their discretion, decided to implement the challenged policy."

     Whitmire v. State of Arizona, #00-16896, 298 F.3d 1134 (9th Cir. 2002).

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Access to Courts/Legal Info

     Prison officials' alleged actions of opening prisoner's legal mail outside his presence, failing to forward legal filing fees, and requiring prisoner to surrender his word processor did not deny him access to the courts since he did not show that it resulted in prejudice to a non-frivolous legal claim. Baker v. Wells, No. 01-2532, 39 Fed. Appx. 150 (6th Cir. 2002).

Extradition

     Prisoner's claim against officers that they carried out an extradition order which they knew was invalid was not so frivolous as to justify summary dismissal of his federal civil rights lawsuit. Judge and prosecutor, however, were entitled to absolute immunity for their actions resulting in issuance of order to extradite prisoner to another state allegedly based on a criminal charge that had already been dismissed. Burrows v. Cherokee County Sheriff's Office, #01-3281, 38 Fed. Appx. 504 (10th Cir. 2002).

First Amendment

     Prisoner stated a claim for unlawful retaliation in violation of his First Amendment rights by asserting that he was told that he was removed from the prison laundry because he wrote to his congressional representative. He also stated a possible equal protection claim by asserting that he had received more severe discipline for a sexual incident because of his sexual orientation. Federal appeals court orders further proceedings as to whether plaintiff prisoner exhausted available administrative remedies on those claims. Feaster v. U.S. Bureau of Prisons, No. 00-0118, 37 Fed. Appx. 15 (2nd Cir. 2002).

Medical Care

     Prisoner's kidney stones and stress disorder constituted serious medical needs, but prison doctors were not deliberately indifferent to those needs, since they treated the kidney stone condition with pain relievers and a medication to reduce calcium levels, as well as catheterization and diet management, and a psychiatrist encouraged the prisoner to get counseling for his stress. Thomas v. Webb, #01-6257, 39 Fed. Appx. 255 (6th Cir. 2002).

     Prisoner's alleged "flat feet" (or "fallen arches") did not constitute a serious medical condition sufficient to support a claim for deliberate indifference in violation of the Eighth Amendment. Johnson v. Medford, 208 F. Supp. 2d 590 (W.D.N.C. 2002).

Parole

     State of Massachusetts was not liable for released parolee's shooting of police officer eight years after his release. Parole decision was "too remote as a matter of law" from the incident in question to serve as a basis for liability. Kent v. Commonwealth, 437 Mass. 312, 771 N.E.2d 770 (2002).

Prison Conditions: General

     Prisoner's claim that he was confined for four nights and five days in a stripped basement intake cell with no personal hygiene items, no cleaning supplies, and minimal clothing and bedding did not suffice to show a violation of his Eighth Amendment rights against cruel and unusual punishment. Estrada v. Kruse, No. 01-1381 38 Fed. Appx. 498 (10th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's failure to file a timely appeal from a disciplinary board's decision denying his grievance was a failure to exhaust administrative remedies, requiring dismissal of his lawsuit under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). African-American bi-sexual prisoner could not pursue claim that he was treated differently than white heterosexual prisoner involved in the same incident of alleged sexual conduct. Thomas v. Doyle, #01-1773, 39 Fed. Appx. 373 (7th Cir. 2002).

     Prisoner failed to completely exhaust available administration remedies as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) before filing his federal civil rights lawsuit claiming that officers used excessive force against him and that a prison doctor subsequently denied him medical care for resulting injuries. Rodriguez v. Hahn, 209 F. Supp. 2d 344 (S.D.N.Y. 2002).

     HIV-positive prisoner who allegedly suffered from AIDS failed to exhaust his available administrative remedies under New York state law as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a) before filing his federal civil rights lawsuit claiming inadequate medical care. Dismissal of the lawsuit without prejudice was required when prisoner submitted an initial grievance, but took no additional steps when he received no response. Reyes v. Punzal, 206 F. Supp. 2d 431 (W.D.N.Y. 2002).

Prison Litigation Reform Act: Filing Fees

     The filing fee provision of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915, does not require several prisoners who joined together to file a single lawsuit as paupers to each pay the full filing fee. Burke v. Helman, 208 F.R.D. 246 (C.D. Ill. 2002).

Prisoner Assault: By Staff

     Medical personnel did not use excessive force in taking blood and urine samples from a pretrial detainee for the purpose of evaluating his competency to stand trial. Personnel merely insisted that he cooperate. Lawsuit challenging actions was dismissed for failure to exhaust available administrative remedies, but prisoner's appeal focused on the merits of his claims rather than on this issue. Cuesta v. Wates, #01-2452, 39 Fed. Appx. 358 (7th Cir. 2002).

Prisoner Assault: By Inmates

     A prisoner's assertion that a prison official deliberately exposed him to the risk of assault by other inmates by telling another inmate that the prisoner had tried to "set him up" for disciplinary charges by planting a knife in his cell stated a claim for violation of the Eighth Amendment right to be free of cruel and unusual punishment. Johnson-Bey v. Ray, #01-3382, 38 Fed. Appx. 507 (10th Cir. 2002).

Sexual Assault

     Under Illinois state law, sheriff could not be held vicariously liable for the alleged sexual misconduct of a correctional officer with a female prisoner. Dorsey v. Givens, 209 F. Supp. 2d 849 (N.D. Ill. 2001). In a related decision, the court held that the officer's alleged sexual misconduct was not within the scope of his employment, so that he was not entitled to indemnification from his employer under state law. Dorsey v. Givens, 209 F. Supp. 2d 850 (N.D. Ill. 2001).

Sexual Offenders Programs

     Illinois Sexually Violent Persons Commitment Act did not violate a parolee's due process right. In re: Detention of William Allen, No. 2-00-1379, 772 N.E.2d 354 (Ill. App. 2nd Dist. 2002).

Smoking

     Prisoner failed to show that the level of his forced exposure to second hand smoke violated his right to be free from cruel and unusual punishment when the facts showed that he had been housed in a smoke-free facility, and that prison officials enforced a no-smoking policy with disciplinary sanctions imposed on prisoners who smoked. This showed that, whatever levels of second-hand smoke the prisoner was exposed to, prison officials were not "deliberately indifferent" to the risk of harm that second-hand smoke posed to him.  White v. Caruso, #00-2257, 39 Fed. Appx. 75 (6th Cir. 2002).

Workers' Compensation

     Workers' compensation total disability benefits under Connecticut law could not be discontinued while claimant was incarcerated. Laliberte v. United Security, Inc., No. 16631, 801 A.2d 783 (Conn. 2002).

     Web document: U.S. Dept. of Justice findings of an investigation of conditions at the Baltimore City Detention Center.