FEATURED CASES

WITH LINKS TO THE OPINIONS

Because all of prison guards who allegedly "conspired" to seize prisoners' legal materials to interfere with their access to the courts worked for the same entity, no federal civil rights conspiracy claim could be pursued; appeals court also finds that two prisoners failed to show that the alleged seizure of their papers caused "actual injury" to their pending cases, while ordering further proceedings on a third plaintiff prisoner's claims.

     Three prisoners at a Wisconsin correctional facility claimed that a prison guard seized legal papers and materials from one of their cells. The prisoner from whom the materials were seized was allegedly acting as a "jailhouse lawyer" in helping the other two prisoners pursue various active court cases. The materials allegedly included complaints, transcripts, petitions, and affidavits, and the plaintiffs claimed that the guard who seized the materials also read them and acted on orders from other guards and prison staff as part of a "deliberate attempt to stymie" the plaintiffs' access to the court.

     The plaintiffs claimed that some of the papers were returned after more than a month of demands, but that other documents, including affidavits belonging to one of the plaintiffs, have never been returned. The defendants in the prisoners' federal civil rights lawsuit for denial of access to the courts at first, according to an appeals court, attempted to justify these actions by claiming reliance on a new prison regulation that required prisoners to use the U.S. mail system to send any legal materials to other prisoners within the same facility, but the court noted that, at the time of the alleged seizure, the regulation cited did not appear in the prison's published code and was not posted.

     The trial court dismissed the case, in two separate orders. In the first, relying on Federal Rule of Civil Procedures 12(b)(6), it held that the prison guards and staff, as employees of the same agency, were shielded from the plaintiffs' "conspiracy" claim by the "intracorporate conspiracy doctrine." It also concluded that two of the plaintiffs had not stated a claim for denial of access to the courts because they had not alleged that they had suffered "actual injury" to the outcome of their pending cases as required by Lewis v. Casey, 518 U.S. 343 (1996), but that the third prisoner had shown such injury, since he had lost two federal habeas corpus actions.

     It still dismissed the third prisoner's claims however, under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994), holding that a federal civil rights claim for money damages that would call into question a criminal conviction cannot be brought until the conviction has been invalidated. The trial court stated that there was an exception to Heck where a Sec. 1983 claim is the only possible route to attack a conviction, citing Spencer v. Kemna, 523 U.S. 1 (1998), but found that in this case, the prisoner could still seek a pardon that would invalidate his conviction, so he could not pursue his Sec. 1983 claim until he could allege that he had sought and been denied a pardon.

     A federal appeals court agreed completely with the trial court's application of the "intracorporate conspiracy doctrine" in the case. Under that doctrine, a "conspiracy cannot exist solely between members of the same entities. In this case, all of the alleged "conspirators" were members of the same entity, the Wisconsin Department of Corrections, and they were all allegedly working in the Department's interest, so no conspiracy lawsuit could be pursued under 42 U.S.C. Sec. 1985.

     The appeals court also agreed that two of the plaintiff inmates had shown no injury to their pending cases. Even if one of their cases suffered "delays" because of the seized papers, this did not suffice to constitute "actual injury." The appeals court swiftly rejected the claim, by one of the plaintiffs, that the guards' actions violated his "right" to provide legal assistance to other inmates, since there is no such right, as held in Shaw v. Murphy, 532 U.S. 2223 (2001).

     The appeals court ordered further proceedings, however, on the third plaintiff prisoner's claims. The court found that the record below was unclear as to what the alleged dismissed actions involved, or even whether there were two or three such actions. Without knowing for sure whether the actions in question involved the fact or duration of the prisoner's confinement, so that awarding damages for their disruption would call into question his underlying conviction, it could not be determined whether or not Heck actually barred his damage claims.

     Beese v. Todd, #01-3951, 35 Fed. Appx. 241 (7th Cir. 2002).

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Correctional employee was entitled to qualified immunity for keeping prisoner in custody one day longer than he otherwise would have been released, based on a verbal representation that there was an outstanding warrant for his arrest in another jurisdiction.

     A former prisoner in a Florida county correctional institution asserts that on the day he was entitled to be released, an employee at the institution call him to her office and informed him that he was being held on an arrest warrant issued by a Massachusetts court. She was unable, however, to produce the warrant when asked to do so, and the prisoner subsequently argued that there was no legal or proper warrant or other documents for his arrest or detention at the time, and that the correctional employee was fully aware of that and that he was entitled to be released.

     The prisoner claims that the employee then held him for one day without "any legal justification and without probable or reasonable cause." Rejecting a federal civil rights claim on this basis, a trial court found that the defendant was entitled to qualified immunity.

     The county employee, based on a phone call from officials in Massachusetts, but without a copy of the arrest warrant in her possession allegedly delayed the plaintiff's release from prison for a period of one day, and made arrangements for the county sheriff's office to pick up and hold the plaintiff for the Massachusetts State Police. Even assuming that the defendant's actions of holding the plaintiff without physical possession of a valid warrant constituted a violation of the prisoner's rights under the Fourteenth Amendment, the court stated, it was not clearly established at the time of these actions that it was a violation of the prisoner's rights to detain a prisoner for a period as short as one day based on an oral representation that there was an outstanding arrest warrant for the prisoner.

     Wilson v. Zellner, 200 F. Supp. 2d 1356 (M.D. Fla. 2002).

     EDITOR'S NOTE: In making this ruling, the trial court pointed to the decision of the U.S. Supreme Court in Baker v. McCollan, 443 U.S. 137 (1979), a case involving mistaken identity, that a detention of three days "does not and could not amount to" a constitutional deprivation of liberty. On the other hand, in Douthit v. Jones, 619 F.2d 527 (5th Cir. 1980), the court held that a detention of a prisoner thirty days beyond the expiration of his sentence in the "absence of a facially valid court order or warrant constitutes a deprivation of due process." The court reasoned that if the Baker court held that three days of alleged improper detention was not an unconstitutional deprivation of liberty, it "seems doubtful" that the plaintiff's detention "for only one day would constitutes such a violation.

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New York prisoner stated a claim for impermissible retaliation against him for protected First Amendment activity by alleging that he was disciplined because he circulated a petition requesting an investigation of a correctional officer's alleged "abusive conduct."

     A New York prisoner circulated a petition, which a number of other prisoners signed, asking for an official investigation into alleged "abusive conduct" by a correctional officer after prisoners complained that he was not allowing them adequate time to finish their breakfast. He was subsequently subjected to cell searches and searches of his work area, as a result of which he was disciplined for alleged misbehavior for possessing certain items found in his work area.

     The prisoner filed a federal civil rights lawsuit claiming that the discipline and searches were retaliatory against him for protected First Amendment activity. Rejecting defendants' motions for summary judgment, the federal trial court found that the plaintiff prisoner stated a possible claim.

     Despite the fact that the institution had a grievance process that the prisoner could have utilized to pursue his complaint about the correctional officer's conduct, the court noted that he was not disciplined directly for circulating the petition and that it appeared that at the time he did so, there was no regulation in effect barring the circulating of petitions. In the absence of a valid regulation against such activity, filing a petition is a constitutionally protected activity under the First Amendment, so that retaliation against a prisoner for doing so may violate the right to petition government for redress of grievances as guaranteed by the First and Fourteenth Amendment.

     The court found that there was a genuine issue of material fact, based in part on the timing of the searches and discipline, as to whether they were retaliatory for the petition circulating, and whether the plaintiff prisoner would have been disciplined even if he had not circulated the petition.

     Farid v. Goord, 200 F. Supp. 2d 220 (W.D.N.Y. 2002).

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County doctor's affidavit stating that all medical care provided to a prisoner who suffered a brain injury after an assault by another inmate was adequate was insufficient to support summary judgment for the county when the plaintiff 's claim involved the issue of whether county employees interfered with or delayed timely access of the prisoner to medical care.

     The legal guardian of a former inmate in a Nebraska county facility claimed that the prisoner was assaulted with a food tray while in custody, which caused a traumatic brain injury. The guardian's federal civil rights lawsuit, filed in state court, claimed that the county had then deprived the injured prisoner of his right to "timely and appropriate medical care" while in custody.

     The county filed a motion for summary judgment, supported by an affidavit from a doctor employed by the county who treated the prisoner while he was in custody. This doctor stated the opinion that all employees of the county had met the relevant standard of medical care. While the plaintiff presented an affidavit from an expert witness, a professor of criminal justice, this affidavit was rejected as evidence as a discovery sanction. The trial court then determined that, without expert testimony for the plaintiff, there was no issue of material fact, and entered judgment for the county.

     Disagreeing with that result, the Supreme Court of Nebraska found that the affidavit submitted by the county's doctor was insufficient to entitle the county to summary judgment. The county, as the moving party, had the burden of showing that no genuine issue existed as to any material fact. The plaintiff's claim was not, the court noted, negligence or medical malpractice, claims that the doctor's affidavit would have been sufficient to refute, but rather a violation of the constitutional right to medical treatment, and a claim that deliberate indifference to that right was shown.

     The plaintiff's claim was not that the quality of medical care provided by the county was inadequate, but rather that it did not make timely medical care available at all.

     "One type of deliberate indifference is evidenced when prison officials prevent an inmate from receiving treatment or deny the inmate access to medical personnel capable of evaluating the need for treatment." The doctor's affidavit only addressed the issue of the adequacy of the care eventually provided and did not establish that the county made this care available to the prisoner in a timely fashion, the court said.

     The court further noted that the record did not contain any of the prisoner's medical records, or any depositions, affidavits, or other testimony describing what happened to the prisoner on the date of his injury or how the county responded to the alleged assault on the prisoner. The court found that a review of such records was required before a determination is made against the plaintiff in this case.

     Not addressing the issue of whether or not the trial court acted erroneously in refusing to accept the affidavit of the plaintiff's expert witness, the court ruled that the plaintiff was not required to present expert testimony to rebut the evidence offered by the county.

     Rush v. Wilder, #S-00-929, 644 N.W.2d 151 (Neb. 2002).

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Correctional officers' failure to dispense medication in response to prisoner's complaints about pain was not deliberate indifference to serious medical needs as officers were simply not permitted to dispense medication, and officers did alert medical staff.

     A Maryland prisoner claimed that two correctional officers violated her constitutional rights and acted with deliberate indifference to her serious medical needs. She was incarcerated after having previously been in an accident that resulted in her having to wear a neck brace and suffering muscle spasms and had been prescribed medication for pain. She complained that the officers failed to dispense the medication to her in response to her complaints about experiencing pain.

     Rejecting this claim, a federal trial court noted that the officers simply were not permitted to dispense medication and that the determination about medication being dispensed was properly being made, under state correctional department policy, by medical personnel.

     The officers did, in response to the prisoner's complaints, notify the medical staff of the situation. "Because the situation was not an emergency," the medical staff "did not respond immediately." The court noted that the plaintiff was detained for less than six hours, and she did not receive medical attention in the meantime. Under these circumstances, the plaintiff failed to show that she had a serious medical need to begin with, much less that the officers were deliberately indifferent to her situation. To the contrary, they did what was "appropriate" for them to do--they notified medical personnel.

     Turner v. Kight, 192 F. Supp. 2d 391 (D. Md. 2002).

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Federal appeals court establishes legal standard for medicating criminal defendants involuntarily to enable them to be competent for trial.

     A federal appeals court has held that "heightened, but not strict scrutiny is the appropriate standard" for establishing when involuntarily medicating a defendant for the purposes of making them competent for trial should be ordered.

     The appeals court stated that the trial court, in order to order such involuntary medication, must explicitly find that the proposed medication is medically appropriate and also necessary to restore the defendant to competence for trial. It must also determine that the defendant can be fairly tried while under the medication and that imposing the medication on the defendant will be justified by the furtherance of an "essential" governmental interest.

     The case involved a prisoner charged with felony possession of a firearms and possession of illegal narcotics. Because of three other prior convictions, he was facing a mandatory minimum sentence of 15 years in prison if convicted again. He had refused, on a number of prior occasions, to cooperate with psychiatric evaluations. While in custody in a federal correctional facility, a doctor who examined him found that him suffered from an undefined psychotic disorder and was delusional.

     Medical personnel subsequently decided that the prisoner was in need of anti-psychotic medication, but the prisoner refused the treatment a number of times, before being brought before the trial judge, who held a hearing on whether he should be involuntarily subjected to the medication. The trial court rejected the argument that no such involuntary medication was possible in the absence of a showing that the prisoner was a danger to himself or others.

     The trial court found that the government's interest in enforcing criminal laws was an essential "overriding justification" for involuntary medication, and listed 13 facts for courts to consider in making decisions on involuntary medication. The federal appeals court found that the trial judge had issued a ruling which was too broad and did not adequately address the defendant's liberty interest in not being involuntarily medicated, and ordered further proceedings which would address that issue under the legal standard of "heightened, but not strict scrutiny."

     The appeals court rejected the prisoner's argument that the Bill of Rights for Mental Health Patients, 42 U.S.C. Sec. 9501 and 10841 et seq. banned involuntary medication of prisoners who were not dangerous to themselves and others.

     United States v. Gomes, No. 01-1143, 289 F.3d 71 (2nd Cir. 2002).

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Widow of manic depressive detainee who suffered a heart attack and died while in custody could pursue claim that county policy of delaying medical screening of combative inmates constituted a substantial risk of serious harm to the decedent.

     A detainee in custody at a county correctional facility was physically combative and verbally abusive when he was arrested, and refused to cooperate with booking processes. He was in possession of prescription medications that were used to stabilize someone who suffered from mental illness.

     A number of incidents occurred in which the prisoner took a combative stance, swore at officers, etc., and was restrained. During the last of these, while deputies restrained his arms and legs as he continued to struggle, he had a heart attack and died. A medical expert later stated that the entire situation of the prisoner's "uncontrolled manic state and the officers' efforts to restrain him 'resulted in a physiological stressful state'" which "essentially resulted in a heart attack."

     Rejecting summary judgment for the defendant county in a lawsuit brought by the prisoner's widow, a federal appeals court ruled that there were factual issues as to whether the county's alleged policy of delaying medical and suicide screening for inmates who were combative and uncooperative posed a substantial risk of harm to the deceased detainee. The plaintiff argued that, had the prisoner been medically screened, he might have been medicated appropriately or sent to a hospital for treatment, and the heart attack might not have transpired.

     The appeals court rejected, however, the argument that the deputies used any excessive force or that the deputies were deliberately indifferent to the detainee's medical needs, since they did not know about his mental condition, but only observed his combative behavior and verbal abuse. The court further allowed a claim to go forward concerning whether the nurse's failure to give the detainee his prescription medicine, which arguably might have resulted in him being less combative, etc. stemmed from an omission in the county's policy concerning the handling of prescription medicine.

     Gibson v. County of Washoe, Nevada, #99-17338, 2290 F.3d 1175 (9th Cir. 2002).

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Federal appeals court holds that prisoner's claims over his alleged denial of medication for high blood pressure, headaches, and a heart condition were properly dismissed for failure to exhaust administrative remedies. The burden was on the prisoner to specifically show, for each claim, the specific steps he had taken to pursue such remedies, and the result.

     A Tennessee prisoner claimed that he was subjected to inadequate medical care and treatment in a county correctional facility, and was denied medication for high blood pressure, headaches, and a heart condition. The prisoner alleged that he had sent approximately seven complaints to the "countys [sic] administration office" and sent approximately five slips to the medical department, and had received no response, and accordingly filed a lawsuit under 42 U.S.C. Sec. 1983 seeking money damages. The trial court dismissed the lawsuit in its entirety, ruling that the prisoner had failed to exhaust administrative remedies as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act (PLRA).

     A federal appeals court has now upheld that result. It found that the prisoner had not met his "burden of demonstrating that he had exhausted his administrative remedies as to the claims raised in his complaint prior to filing suit in federal court." He "has clearly not pleaded his claims with specificity showing that each claim has been exhausted by attaching a copy of the applicable administrative dispositions or describing with specificity both the proceeding and its outcome."

     The appeals court also noted that the plaintiff prisoner now, in the appeals court, presented exhibits which purported to demonstrate that he exhausted his administrative remedies, but that these documents were not presented to the trial court and therefore were not part of the record reviewable on appeal. The dismissal of the prisoner's lawsuit, the appeals court noted, was "without prejudice," and if he had indeed exhausted his administrative remedies, he "can indeed refile his complaint."

     Smith v. Shelby County, #01-59399, 34 Fed. Appx. 188 (6th Cir. 2002).

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Prisoner was entitled to proceed on his claim that correctional officers "set him up" for an assault by another inmate, deliberately removing obstacles to the violent attack.

     An inmate in an Illinois correctional facility was injured in an attack by another prisoner, and claimed that the failure of the guards and officials at the prison to prevent the attack violated his Eighth Amendment right not to be subjected to "cruel and unusual punishment." The trial court granted the defendants summary judgment, but a federal appeals court has reversed, ruling that the prisoner alleged facts which, if true, would allow him to proceed forward with his lawsuit.

     "Of course the defendants were not the actual attackers," the appeals court stated, "but if they behaved with deliberate indifference to the plaintiff's safety, meaning that they knew of a serious danger to him (really knew -- not just should have known, which would be all that would be required in a negligence case) and could easily have prevented it from materializing but failed to do so, they are liable."

     The plaintiff prisoner and his alleged assailant were both in a "special management unit" which was for inmates who "cannot be adequately protected elsewhere because they have a lot of enemies in the prison population." The plaintiff was in the "labor pool," a group of prisoners not in segregation, but watched by guards whenever they are out of their cells. The alleged assailant was in a different wing of the unit.

     The alleged assailant had an "imposing record of violent behavior," the appeals court noted, including two convictions for armed violence, four for deviate sexual assault (homosexual), and one for forcible detention. He had assaulted fellow inmates on six prior occasions, and had repeatedly threatened to beat and rape the plaintiff, and once grabbed him and was beaten off with a pool cue in the gym.

     The plaintiff contended that, the month before the assault, the alleged assailant was issuing threats against him every couple of days, including threats to kill him. Because of his small stature and these threats, the plaintiff was classified by a prison psychologist as a "vulnerable victim." The plaintiff wrote to a prison official that the assailant had threatened to rape him when he could "access him" upon his release from segregation, which occurred shortly before the assault. He allegedly also wrote to other prison staff complaining that he was being "harassed," but did not identify the assailant in those letters.

     The plaintiff was leaving the prison dining room after breakfast by a hallway that led past the prison's print shop, the court summarized, "where, as it happened" the assailant was "assigned to work without supervision despite his terrible record." As the plaintiff passed by the door to the shop, approximately 50 minutes after the beginning of the assailant's working day, the assailant "leapt out and repeatedly hit" him with the head of a broom, inflicting injuries that included a permanent hearing loss. The broom, according to the plaintiff, was supposed to be locked away as a potential weapon, but was not.

     The plaintiffs theory is that the defendant guards and prison officials were out to "get" him, and knowing that the assailant would attack him if given a chance, released him from segregation so that he would pass by the print shop unescorted by guards, thus providing an opportunity for the assailant to attack him and "teach him a lesson."

     "It's as if the guards had placed a hungry lion in the print shop and opened the door" as the plaintiff passed by, the court commented. The plaintiff, the court noted, "was unloved by the guards, both because of frequent disciplinary problems and because he had agreed to testify in a drug case against a guard at a prison of which he had formerly been an inmate." Another prisoner stated that he overheard one of the defendant guards tell the assailant that if he did anything to the plaintiff he should be sure not to get caught "because I don't know if I could cover for you if it comes down to it."

     The appeals court ruled that even if the plaintiff could not sustain at trial his claim that the defendants used the assailant as "their instrument to assault him," the other evidence, if believed, "would establish a violation of the Eighth Amendment" because there was evidence that the defendants knew that the assailant posed a serious danger to the plaintiff and that they could have averted the danger easily either by leaving the plaintiff in segregation or by placing the "predator" assailant in segregation or "at least by assigning him to work in a part of the prison not traversed three times a day" by the plaintiff. "No more is necessary to establish deliberate indifference and so a violation of the Eighth Amendment," the court concluded.

     The appeals court also expressed that is was "not impressed by the repeated reminders by the defendants' lawyer that prisons are dangerous places, reminders he inconsistently bracketed with an assurance that none of the defendants were aware of there ever having been a fight between inmates in the special management unit -- an assurance grievously wanting in credibility." In this case, while prisons are dangerous, the plaintiff was "not a victim of the inherent, as it were the baseline, dangerousness of prison life, but, if his story is true, either of a plot by the guards to punish him or a failure of protection so egregious as to bring this case within the rare category of meritorious Eighth Amendment claims by prisoners."

     The appeals court also cautioned that this was all conditioned, of course, on "if his story is true," but that the trier of fact "may disbelieve his evidence, all or most of which comes from inmates, who tend not to be highly credible witnesses."

     Case v. Ahitow, #01-3564, 2002 U.S. App. Lexis 17277 (7th Cir.).

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Georgia prisoner was appropriately awarded $25,000 in compensatory damages on claim that correctional officers used excessive force against him, but punitive damage awards were limited by the provisions of the Prison Litigation Reform Act, and further proceedings were required to determine whether they were appropriately necessary to deter future misconduct. Reduction of attorneys' fees also required to reflect only hours expended on successful claims.

     A Georgia prisoner claimed that a number of correctional officers engaged in an altercation with him when he allegedly improperly brought food items from the prison store back to his cell on a day which was not his "store day." Following the altercation, he claimed that the officers escorted him into his cell, and that one of them choked him while a number of the others punched him, kicked him, threw him to the floor and beat him with batons until he lost consciousness and started convulsing, requiring medical treatment.

     Injuries included a closed head injury with swelling of the left posterior parietal region of his head and seizure, as well as left eyebrow laceration, and multiple contusions to his face, shoulders, and upper back. The officers argued, to the contrary, that the prisoner attacked one of them, and that they only responded with necessary force.

     After hearing conflicting evidence, a jury returned a verdict in the prisoner's favor against two officers, awarding him $25,000 in compensatory damages, as well as a total of $45,000 in punitive damages ($30,000 against one officer and $15,000 from the other).

     A federal appeals court upheld the award of compensatory damages and ruled that the jury instructions given were sufficient to inform the jury that, to award damages for excessive force, it had to find that the officers had acted with specific intent to cause harm. It ordered further proceedings, however, on the punitive damages award. It noted that punitive damages are "prospective relief" designed to deter future harm under the Prison Litigation Reform Act (PLRA), 18 U.S.C. Sec. 3626(g)(7) and that the statute further provides that such awards must be no larger than reasonably necessary to deter the kind of violation of federal rights that occurred and should be imposed against no more defendants than necessary to serve the function of deterrence and must also be the "least intrusive" way of doing so. Accordingly, further proceedings were required to determine whether it was reasonably necessary to impose punitive damages in order to deter future excessive uses of force against prisoners.

     The court also found that the trial court's award of $73,137 in attorneys' fees and $12,131.80 in costs and expenses was improper and an abuse of discretion, because it failed to restrict the award, as required by 1997e(d)(1)(A) to only those hours directly and reasonably incurred in proving a violation of the plaintiff's rights by the two defendants found liable. The plaintiff prisoner did not prevail on some of his claims against other defendants, so further proceedings were required to reduce the attorneys' fees award.

     Johnson v. Breeden, #00-14090, 280 F.3d 1308 (11th Cir. 2002).

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Prison medical personnel were not deliberately indifferent to the needs of an inmate who committed suicide, when prisoner's condition was changeable and he sometimes appeared able to interact appropriately with others.

     A prisoner in a Maine correctional facility committed suicide and his estate claimed that a number of prison medical personnel, including a doctor, a social worker, a psychiatrist, and the regional supervisor of medical services were deliberately indifferent to the prisoner's serious medical needs.

     Granting summary judgment to each of the defendants, a federal trial court noted, in ruling in favor of the social worker, that the inmate's condition was "changeable," and on some days, he appeared to "interact appropriately." The social worker, further, possessed "undisputed" "good intentions" to attempt to assist the prisoner and she lacked any personal knowledge about his condition in the last two days of his life, during which his condition may have deteriorated.

     The psychiatrist only saw the prisoner for a limited period of time, and the decision to scale down the inmate's care was made by a treatment team. The medical doctor named as a defendant, the court found, had no significant role in the prisoner's mental health treatment decisions, and accordingly was not deliberately indifferent to the risk that he would commit suicide.

     The court also found that the regional supervisor of medical services did not apply any pressure on the psychiatrist or anyone else regarding treatment decisions. There was no evidence, the court ruled, to support the argument that any of the defendants acted as they did or reduced the prisoner's treatments because of financial considerations. Instead, the decisions, while they may have ultimately proved to have been "ill advised and professionally unsound," were based on the prisoner's "generally improving, or at least stable, condition," and therefore were not the result of "deliberate indifference" to a known risk of harm.

     Pelletier v. Magnusson, 201 F. Supp. 2d 148 (D. Maine 2002).

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Policy under which Muslim splinter group was designated as a Security Threat Group (STG) subject to special security measures, including the transfer of core group members to a special unit where they must participate in a behavior modification program did not violate prisoners' constitutional rights to free exercise of their religion, their right to equal protection, or deprive them of a protected liberty interest.

     Because of increasing gang violence in state correctional facilities, the New Jersey Department of Corrections promulgated a new policy in 1998 designed to isolate and rehabilitate gang members. Under this policy, prison officials can designate "STGs" (Security Threat Groups) and transfer the "core" members of these groups to a special "Security Threat Group Management Unit." The goal of the policy is to limit Security Threat Group activities and therefore minimize the occurrence of assaults on staff and inmates. Once the group members are in the special housing unit, they are required to participate in a behavior modification program before returning to the general prison population.

     A federal civil rights lawsuit was filed challenging the policy on behalf of three prisoners who were identified as members of a splinter Muslim group known as the "Five Percent Nation" which originated in New York City in the 1960s as a break away from the Nation of Islam.

     The group's name stems from the group's belief in "Supreme Mathematics" which breaks down the population of the world into three groups: the Ten Percent, the Eighty Five Percent, and the Five Percent. The group believes that the "Ten Percent" are those who have "subjugated most of the world," including "white people and others who propagate the myth of a nonexistent 'mystery God.'" The Eighty Five Percent are "those who are subjugated and deceived." And finally, the "Five Percent" are "African Americans who have achieved self-knowledge" and "know the black man's true nature and that God is within himself." Male members of the group are referred to by themselves as "Gods," while female members are called "Earths," and the group often refers to itself as "The Nation of Gods and Earths."

     The group claims that it does not promote or advocate violence, but a federal appeals court decision on the challenge to the New Jersey policy notes that "evidence links the group with numerous incidents of prison violence." A report prepared by Roland Holvey of the New Jersey Department of Corrections Internal Affairs Office states that the Five Percent Nation "became such a strong presence in New York prisons that Hispanic inmates were prompted to form their own gang, known as the Latin Kings, to protect themselves from attacks by Five Percenters." The Five Percent Nation allegedly became active in the early 1980s in the New Jersey prisons and has since become the "largest group in the state's prison system." It also allegedly is known to exist in Connecticut, Delaware, Georgia, Maryland, Massachusetts, North Carolina, Pennsylvania, South Carolina, Virginia, and the District of Columbia.

     The Holvey report states that many in the law enforcement community consider the Five Percent Nation to be "one of the greatest threats to the social fabric" of the prisons, and it cites a number of instances in which members of the group in New Jersey prisons have been involved in individual or group incidents of violence against officers and other inmates.

     Based on this report and other evidence, the Commissioner designated the Five Percent Nation as an STG, as well as two Hispanic gangs, the Latin Kings and the NETAS, and two white gangs, the Prison Bikers Brotherhood and the Aryan Brothers. The three plaintiffs, along with others, were identified as members of the Five Percent Nation and transferred to the special unit. Two of them admit membership in the group, while the third plaintiff asserts that he is actually a Rastafarian who studies other religions to understand them and received a letter from a friend who is a member of the group.

     The three plaintiffs claim that the policy violates their right to freely exercise their religion, as guaranteed by the First Amendment, and also deprives them of liberty and violates their right to equal protection of law.

     A federal appeals court has upheld summary judgment for the defendant correctional officials. It rejected the free exercise of religion claim, finding that the regulation was rationally connected with legitimate and neutral objectives of maintaining order and security within the prison system. There was adequate evidence and grounds for concluding that inmates who were core members of the specified STG posed a serious security threat. Further, while the policy imposed restrictions on the ability of members to engage in activities related to the group, it did not "foreclose all alternative avenues of practice."

     Additionally, while persons in the special housing unit were asked to sign a form renouncing "affiliation with all Security Threat Groups," the court rejected an argument that this meant they were being asked to renounce their religious beliefs. What was required, the court reasoned, was "renunciation of affiliation with a particular group of inmates who belong to a STG, "not a renunciation of beliefs." The policy "requires the end of any form of gang membership or participation," but even core members of the Five Percent Nation "retain alternative avenues of practicing their religion, including possessing and studying the Bible and Koran, even though possession of distinctively Five Percent Nation literature is forbidden by the policy.

     The court also found that there was no violation of equal protection since religion did not play any role in making the decision whether to treat any group as an STG. Any disparate treatment of the group in question was reasonably related to legitimate penological interests, since the particular inmate group demonstrated a "greater propensity for violence" than other groups.

     Finally, the court found that the plaintiffs were not deprived of a protected liberty interest. They were not subjected to confinement that exceeded the sentences imposed upon them and the court found that the transfer to the special unit did not impose an "atypical and significant hardship in relation to ordinary incidents of prison life." The procedures used to determine whether a particular inmate was a "core" STG member satisfied procedural due process requirements, since they received notice and a hearing, and could appeal an adverse decision.

     Fraise v. Terhune, #00-5062, 283 F.3d 506 (3rd Cir. 2002).

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Persons civilly committed to state custody as "sexual predators" stated a claim for denial of due process based on purported "punitive" conditions of confinement and lack of mental health treatment.

     Illinois, as well as other states, recognizing a high rate of recidivism exists among sex offenders, has adopted a statute for the involuntary commitment of persons found to be "sexually dangerous" or a "sexual predator." See 725 ILCS 207/1. The statute in question applies to convicted sex offenders who have completed their criminal sentences as well as persons found not guilty of sexually violent offenses by reason of insanity. By following the procedures spelled out in the statute, such persons can be committed to a "sexually violent persons unit" operated by the Illinois Department of Human Services at a correctional center. Persons committed in this manner remain in custody until a determination that they are "no longer sexually violent."

     A federal trial court has declined to dismiss a lawsuit filed on behalf of all such persons at the center, claiming that their substantive due process rights were violated by punitive conditions of confinement there, and that they were not being provided with treatment, including mental health treatment, which would give them any "realistic" opportunity to win their eventual release.

     The trial court rejected the argument that the issue of whether such persons were entitled to mental health treatment was negatively answered by the U.S. Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997). The court found that the case did not definitively resolve that issue. Additionally, the court found that the Kansas statute upheld in that decision was different from the Illinois statute in its purposes. Prior case law, such as People v. Trainor, 752 N.E.2d 1055 (Ill. 2001) held that the primary objective of the Illinois legislature was to provide for individual treatment of sexually violent persons to effect recovery, while in Hendricks, the Kansas Supreme Court found that the Kansas legislature was primarily attempting to continue the segregation of sexually violent offenders from the public.

     "When, as in Illinois, treatment is used as a primary justification for civil confinement, fundamental fairness requires that the involuntarily civilly committed person receive such individual treatment as will provide him a meaningful chance to improve and win his eventual release."

     Additionally, "for civil commitment of Sexually Violent Persons to operate within the bounds of the Constitution, a purpose of that confinement, even if it is only an ancillary purpose, must be treatment as opposed to continuing punishment for past crimes," the court found, citing Hendricks at pgs. 366-68. The court noted that the U.S. Supreme Court, in an earlier challenge to a prior version of the Illinois' Sexually Dangerous Persons Act, found that the conditions imposed at that time "bore a reasonable relationship to the state's interest in treatment," Allen v. Illinois, 478 U.S. 364 (1986), but also said that "had petitioner shown, for example that the confinement of such persons imposes on them a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case."

     The court concluded, therefore, that the plaintiffs could proceed with their complaint challenging the conditions of the confinement and their alleged lack of treatment.

     Hargett v. Baker, 2002 U.S. Dist Lexis 13721, 2002 WL 1732911 (July 26, N.D. Ill.).

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Damages: Punitive

     Oregon statute requiring that 60% of any punitive damage award go to a state fund benefiting crime victims does not violate the state constitution. Oregon Supreme Court finds that the statute, Ore. Stat. 18:540 unambiguously applies to federal cases arising from state law. While the case did not involve correctional or law enforcement parties, the reasoning would apply in such cases. DeMendoza v. Huffman, No. SC S48430, 51 P.3d 12232 (Ore. 2002).

Death Penalty

     A prisoner on death row was not entitled to an injunction preventing the state Department of Corrections from executing him until his possible "unnecessary" pain and suffering during the process was minimized. A federal appeals court upheld the finding that the plaintiff's claim, filed as a federal civil rights lawsuit, was properly construed to be a second habeas petition, which he had improperly filed with the trial court without seeking prior permission from the appeals court to file an additional application, so that the trial court had no jurisdiction to hear the claim. (The ruling came on August 14, 2002, the prisoner's execution date). Fugate v. Department of Corrections, No. 02-14400, 2002 U.S. App. Lexis 164611 (11th Cir.).

Defamation

     A police officer's report that a correctional officer was "disorderly" was insufficient to state a federal civil rights claim for injury to the correctional officer's reputation, based on the village's communication to the plaintiff's employer of the report. Defamation alone is insufficient to state a federal civil rights claim and a cause of action would only exist if the plaintiff could show stigma to his reputation, plus other injury. In this case, injury to reputation was all that was shown. Ruggiero v. Phillips, 739 N.Y.S.2d 797 (A.D. 2002).

Disability Discrimination: Employees

     Sick leave policy of New York state Department of Corrections requiring an employee to provide a diagnosis of her medical condition each time she was absent from work violated provisions of the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., prohibiting medical inquiries likely to cause an employee to reveal disabilities or perceived disabilities. Fountain v. N.Y. State Department of Correctional Services, 190 F. Supp. 2d 335 (N.D.N.Y. 2002).

Employment Issues

     An employee hired to staff an Ohio community-based correctional facility, who was subject to a 120-day initial review period, was entitled to due process in the termination of her employment, the Supreme Court of Ohio ruled in response to a question certified by a federal district court. The court declined, however, to answer a second certified issue of whether the employee was an "at-will employee." McClain v. Northwest Community Corrections Center, Judicial Corrections Board, No. 2001-1312 (Ohio 2002).

Freedom of Information

     Sheriff's department failed to show that information related to excessive force complaints concerning alleged excessive use of force against prisoners were exempt from release under Texas Public Information Act, T.C.A. Government Code Sec. 552.006 on the basis of either a litigation or a law enforcement exemption. Trial court erred, however, in limiting the amount of reimbursement that the sheriff could charge a newspaper for the cost of copying the requested information. Thomas v. Corny, No. 03-01-00099-CV, 71 S.W.3d 473 (Tex. App. --Austin, 2002).

Governmental Liability: Policy/Custom

     Sheriff could not be held liable for alleged deliberate indifference by county jail medical personnel when there was no evidence that he had authorized, approved, or even knowingly acquiesced in any failure by the personnel to dispense treatment to the plaintiff. County was also not liable, despite criticized sick call policy, in the absence of any showing that the policy somehow caused the alleged problem. Warren v. Shelby County, Tenn., 191 F. Supp. 2d 980 (W.D. Tenn. 2001).

Medical Care

     Prisoner's allegation that he was misdiagnosed with tuberculosis and then forced to take a medication for its treatment which made him sick was insufficient to state a constitutional Eighth Amendment claim for deliberate indifference to his serious medical needs, since this, at most, indicated a possible claim for negligence or medical malpractice. Parks v. McCoy, #01-3630, 35 Fed. Appx. 239 (7th Cir. 2002).

     Prisoner failed to show that prison officials were deliberately indifferent to his need for timely and adequate medical care for his knee either prior to surgery or during post-operative care, in the absence of showing that any alleged delay caused any further harm. Lindsay v. Terhune, #01-16813, 35 Fed. Appx. 677 (9th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Plaintiff inmates' failure to demonstrate that they had exhausted their available administrative remedies prior to bringing their federal civil rights case over prison conditions did not deprive the federal court of the jurisdiction to consider their case. A dismissal of the inmates' appeal of the dismissal of their complaint on the basis that a notice of appeal only had the signature of one of the seven inmate plaintiffs was improper, as the signature requirement was also not jurisdictional. Casanova v. DuBois, #99-1838, 289 F.3d 142 (1st Cir. 2002).

Prisoner Suicide

     Federal civil rights lawsuit brought by inmate's estate more than two years after his suicide in a county jail was time-barred by a Kansas two year statute of limitations. The time period began to run after the sheriff showed the administrators an air vent similar to that from which the inmate hanged himself and told them that two other similar deaths had occurred, which had led him to consider placing covers over the vents, which he did not do. The court rejected the argument that the grief of the inmate's parents over his death tolled (extended) the two year time limit. Hanchett v. Saline County Board of Commissioners, 194 F. Supp. 2d 1150 (D. Kan. 2001).

Procedural: Appeal

     An order dismissing a prisoner's medical malpractice claim against a doctor who allegedly improperly treated him with anti-psychotic drugs did not also dismiss his federal constitutional claim and his claim for intentional infliction of emotional distress, so that a certification of his case for immediate appeal was improper, requiring dismissal of the appeal for absence of appellate jurisdiction. Mack v. Maloney, #01-1888, 34 Fed. Appx. 1 (1st Cir. 2002).

Procedural: Evidence

     Federal trial court would not take "judicial notice" of information contained on Internet websites offered by defendant correctional officials to demonstrate their claim that they had adopted appropriate treatment procedures for the plaintiff prisoner's hepatitis C condition. In addition to the accuracy of the website information being questionable, because the website could be modified at will by the webmaster, and perhaps other persons, the prisoner, acting as his own lawyer, did not have access to the sites, and no foundation was presented for the "expert" opinion the website information represented. Fenner v. Suthers, 194 F. Supp. 2d 1146 (D. Colo. 2002).

Procedural: Jurisdiction

     Prisoner's course of conduct in failing to object to trial of his federal civil rights claim for alleged inadequate medical care by a federal magistrate judge, and purported post-trial consent, could not cure the jurisdictional defect "inherent" in the failure to obtain express consent from all parties prior to a trial conducted by a magistrate judge, as required by 28 U.S.C. Sec. 636(c)(1). Accordingly, a federal appeals court vacated and remanded the jury's verdict for the defendants in the case. Withrow v. Roell, #00-40627, 288 F.3d 199 (5th Cir. 2002).

     A private individual and a federal public defender did not have a "significant relationship" with an accused U.S.-born al-Quaeda suspect being held in a naval brig which would allow them to act as his "next friend" and file a petition for a writ of habeas corpus on his behalf. Both persons admitted having no prior relationship with the prisoner but claimed that they should be able to act on his behalf anyway because they could demonstrate that they were dedicated to acting in his "best interest." Rejecting this line of reasoning, the appeals court stated that granting standing to act in this manner in the absence of a "significant relationship" with the prisoner would "be opening the flood gates of  federal litigation" to "intruders or uninvited meddlers, styling themselves next friends." Hamdi v. Rumsfeld, No. 02-6827, 294 F.3d 598 (4th Cir. 2002).

Sexual Assault

     Supreme Court of Indiana summarily affirms intermediate appeals court decision [(Robins v. Harris, 740 N.E.2d 914 (Ind. App. 200), aff'd on rehearing, 743 N.E.2d 11422 (Ind. App. 2001)] that sheriff was liable for sexual assault allegedly committed on female jail inmate but that the county commissioners were not, following settlement of the case, except for a portion of the opinion stating that consent by the inmate was not available as a defense in the civil lawsuit, just as it was not available, under state law, I.C. Sec. 35-44-1-5(b) to a criminal charge of sexual assault arising out of the same incident. Robins v. Harris, No. 84S01-0106-CV-00315, 769 N.E.2d 586 (Ind. 2002).

Youthful Prisoners

     Settlement for confidential amount reached in wrongful death lawsuit by mother of child who died at reformatory camp when the 80-pound boy was allegedly crushed by a 300-pound counselor laying on top of him for five to ten minutes to restrain him after he got into a fight with another child. The 12-year-old had been ordered to attend the camp by juvenile courts. Ibarra v. Eckerd Youth Alternative Inc., No. 00-1159-CA (Marion County, Fla. Circuit Court), reported in The National Law Journal, p. B4 (July 15, 2002).