FEATURED CASES

WITH LINKS TO THE OPINIONS

Prison officials use of pepper spray to quell a fight in a cell between two prisoners in which one threatened to kill the other did not constitute an excessive use of force, even if a second application of pepper spray was administered after the prisoners began to cough, but before they were restrained. Appeals court rules, however, that officials were not entitled to qualified immunity from a deliberate indifference to medical needs claim by other prisoners in the cell block that the vapors drifted into their cells and they were not given showers or medical attention for four hours.

     Three inmates in a California correctional facility sued the warden and other prison officials, contending that they were subjected to cruel and unusual punishment in violation of the Eighth Amendment when pepper spray was used in the general area they were housed in order to quell a fight between two other prisoners, and the pepper spray vapors drifted into their cells.

     The plaintiff prisoners essentially made two separate federal civil rights claims: 1) that the use of the pepper spray in this manner was excessive force, in that the pepper spray was applied even after the fight had allegedly subsided, and 2) that prison officials were deliberately indifferent to the medical needs of the neighboring inmates, such as themselves, who allegedly suffered harmful effects from migrating pepper spray vapors.

     The trial court denied the defendants summary judgment. A federal appeals court has ruled that the denial of summary judgment was proper on the deliberate indifference to medical needs claim, but that the prison officials were entitled to qualified immunity on the excessive force claim.

     Correctional officers involved in the incident observed a violent fight erupting inside a prison cell and saw that one of the prisoners had the other in a headlock and was punching him in the face and slamming his head against the wall, with the beaten prisoner's face "covered with blood." When the fighting prisoners did not respond to the officers' orders to stop, a pepper spray canister was obtained.

     After further commands, and after one of the prisoners threatened to kill the other, an officer administered a 2-5 second burst of pepper spray into the cell via a thin rubber hose through the foodport. This officer claimed that another application of the spray was required because the first spray was blocked by the bodies of the fighting prisoners. The fighting prisoners were then escorted out of the cell and attended to. For purposes of the lawsuit, the court assumed that there were two bursts of pepper spray, each lasting up to five seconds, and that the "second application was administered after the inmates had begun coughing and gagging but before they had cuffed up."

     Inmates in the neighboring cells claim that the pepper spray vapors drifted into their cells, which had a plexiglass wall separating them from the hallway, with one-inch openings at the top and bottom of these walls. Each cell had a circulation vent and a sink with running water and soap, but no windows.

     These bystander inmates claim that they suffered burning sensations in the eyes or on their skin, and that at least two of them suffered asthma attacks or difficulty in breathing. They later contended that they had called out for medical attention and to be taken from their cells and allowed to shower. One claimed that he attempted to alleviate his irritation by splashing water onto his face, but that this only aggravated his condition because the vapors in the air mixed with the water.

     The plaintiff prisoners claim that the use of the ventilation system and its fan to circulate the air "made matters worse because it blew the fumes into their cells, where the vapors became trapped by the plexiglass." The plaintiffs contend that it was only four hours after the incident that the bystander inmates were finally escorted out of their cells for showers. Defendant officials contended that they occupied these four hours "with writing reports, finding alternative housing for the fighting inmates, collecting evidence, cleaning the blood off the floors, and looking for weapons," as well as serving dinner in the unit before escorting the inmates out for showers.

     The appeals court ruled that the plaintiffs had failed to show that the application of the pepper spray was done "maliciously and sadistically for the very purpose of causing harm." Accordingly, the officials were entitled to qualified immunity, because there was no use of excessive force.

     The court also ruled, however, that if the officials were aware of the harmful effects of the pepper spray and of the inadequacy of their ventilation methods and "yet purposefully refused to provide showers, medical care, or combative instructions or to develop an adequate policy to address obvious risks," then this might constitute deliberate indifference to serious medical needs in denying showers and medical attention for the four hour period.

     The allegations that the officers themselves allegedly took turns stepping outside for fresh air, that the prisoners claim that they heard the officers coughing and gagging in the hall, and that the prisoners allegedly repeatedly requested attention, complaining of breathing problems, pain, and asthma attacks, with some coughing, gagging, or choking, if true, suggests that the pepper spray "did not entirely dissipate at once and that the officers may have been aware of this condition." This was further suggested by the officers' decision to open the yard door and place an industrial fan in the doorway.

     Clement v. Gomez, # 01-16088, 2002 U.S. App. Lexis 15659 (9th Cir.).

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Federal appeals court upholds award of $10,002 against a correctional officer who allegedly "orchestrated" an unnecessary soaking with pepper spray of two inmates confined to their cell five hours after a prison riot had been quelled. Officer allegedly instructed a co-worker to soak the cell with pepper spray after one of the inmates questioned his alleged calling out "Niggers get naked."

     After a riot broke out in a housing unit in a Missouri prison, officers quelled the disturbance and returned all inmates to their cells. They then proceeded to make a cell-by-cell search for weapons and contraband, using special units of correctional officers trained to handle riots, called Emergency Squads. The squads were instructed to impose "Temporary Administrative Segregation Confinement" or "TASC" on the inmates, with each inmate strip-searched, handcuffed, and having their cell searched for weapons and contraband.

     Approximately five hours after the riot, one of these search teams arrived at a cell occupied by two prisoners. They later contended that one of the officers called out, "Niggers get naked." One of the prisoners responded by asking, "What did you say?" The officer allegedly reacted to this question by calling for a "movement team" and another officer immediately sprayed both prisoners with pepper spray, using a device known as a MK-46, which consists of a 12 to 14-inch wand attached to a large canister, which resembles a fire extinguisher.

     This allegedly soaked both inmates, along with the entire interior of their cell, with pepper spray. They were removed from the cell and taken to the showers to clean up after approximately ten minutes of inhaling the chemical agents. One of them later testified that the incident resulted in intense burning on his skin for several days after the incident.

     The two prisoners sued the officer who sprayed them with the pepper spray and several other officers present at the time for allegedly being "deliberately indifferent" to their safety by failing to prevent the use of the spray. The complaint also contended that all the defendants were deliberately indifferent to the prisoners' serious medical needs by requiring them to return to their cell without first cleaning out the chemicals.

     After claims against some officers were dismissed or dropped, a jury returned an award only against the officer who had allegedly called out "Niggers get naked," awarding both plaintiff prisoners one dollar each in nominal damages and punitive damages totaling $10,000. The jury found in favor of the remaining defendants on all other claims. The trial court refused to set aside the jury's award against the officer and awarded attorneys' fees of $15,000 and $4,397.40 in costs, in addition to the damage awards. The trial judge also awarded an additional $8,125 in attorneys' fees and $587.19 in expenses as discovery sanctions against the officer and several other defendants, for failing to comply with the court's earlier order to produce within ten days the original videotape of the spraying incident, as well as a list of each person involved in the use of force. (The original videotape was never produced, and the trial judge found that the defendants "continued to change their story" with regard to which officials were involved with the use of force).

     A federal appeals court upheld the jury's award against the officer, rejecting the argument that the plaintiff prisoners suffered only "de minimis injuries." The appeals court noted that the plaintiff prisoners were confined to their cells and that the evidence did not show that they disobeyed orders. Rather than just a small spray of pepper spray, the plaintiffs in this case were "doused with pepper spray," so that their faces and bodies were "soaked" in it and their entire cell was covered with. One of the plaintiffs claimed that he experienced spotting on his lower body for almost two years following the incident, and the other testified that he has suffered problems with his skin and eyes since then.

     The appeals court also found that the facts were sufficient to allow the jury to reasonably conclude that the officer "orchestrated a vicious attack on the inmates for no legitimate reason."

     The appeals court rejected the officer's argument that he was entitled to qualified immunity, since it was "well established at the time" of the incident that "failing to protect inmates from a foreseeable attack violates the Eighth Amendment when an official is 'deliberately indifferent to a substantial risk of serious harm.'"

     The appeals court also rejected the officer's argument that he should not be held liable for his conduct because the jury found against the inmates on their claim of excessive force against the defendant officer who actually sprayed them. The appeals court reasoned that "in all likelihood" the jury did not find this other officer liable simply because it felt that he was "simply following" orders and did not spray the inmates "maliciously and sadistically." The officer who used the spray testified that he was not even present when the first officer allegedly said, "Niggers get naked," but instead arrived at the cell with no knowledge of why he had been called for. The jury's finding that this officer was not liable for an excessive use of force "does not mean the jury concluded that the entire pepper spraying incident was a constitutional use of force." To the contrary, "orchestrating an unnecessary pepper spray shower violated clearly established rights of which a reasonable person should have known."

     The appeals court upheld the discovery sanctions. It called, however, for a recalculation of the attorneys' fees awarded to the plaintiffs as prevailing parties, noting that the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(2) requires the court to use a portion of the judgment, not to exceed 25%, to pay attorneys' fees.

     Lawrence v. Bowersox, #01-1813, 2002 U.S. App. Lexis 14657 (8th Cir.).

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Prisoners could not pursue their claim that convicting them of drug use in a disciplinary proceeding without a confirmatory drug test violated their right to due process when they had not previously had their disciplinary conviction set aside. Virginia state constitutional claim was barred by the statute of limitations, and states and their agencies and officials cannot be sued under the federal False Claims Act for allegedly obtaining federal funds for drug testing by falsely certifying that standards for testing were being followed.

     Two prisoners--one currently incarcerated and one formerly incarcerated in a Virginia state correctional facility--asserted various claims based on having faced prison discipline based on accusations of having engaged in drug use. They claimed that their convictions were based on drug tests which did not comply with a number of federal requirements that the state had certified that it complied with in order to obtain federal financing for drug use research. They also claimed that their constitutional due process rights had been violated because the correctional officials had refused to perform confirmatory drug tests before convicting them.

     They also sought to assert a claim against officials under the False Claims Act (FCA), 31 U.S.C. Sec. 3729(1), contending that prison authorities had obtained federal funding for drug testing by falsely certifying that requirements for testing and disposal of samples were being followed.

     Dismissing the case, a federal trial court found that a prisoner's claim that their federal constitutional rights to due process were violated when they lost good-time credits for being under the influence of drugs or intoxicants without being afforded a confirmation drug test was "not cognizable under 42 U.S.C. Sec. 1983" until the prisoner has succeeded in vacating his institutional conviction. The court cited Edwards v. Balisok, 520 U.S. 641 (1997) for this rule, and also found that one of the plaintiff's placement in segregation or isolation did not constitute a "sufficiently grave deprivation to state a claim for denial of due process or infliction of cruel and unusual punishment," citing In Re Long Term Segregation of Five Percenters, 174 F. 3d 464 (4th Cir. 1999) (concluding indefinite confinement in segregation did not violate the Eighth Amendment), and Beverati v. Smith, 1220 F.3d 500 (4th Cir. 1997) (finding no liberty interest implicated by an inmate's placement in segregation).

     The court also found that a Virginia state constitutional due process claim was barred by a statute of limitations requiring a prisoner to bring a lawsuit within one year of the incident or within six months after all administrative remedies are exhausted, whichever occurs later. Va. Code Sec. 8.01.

     The court also rejected the False Claims Act claim, noting that states, state agencies, and individuals acting in their official capacity are not persons for purposes of the False Claims Act, citing Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000). The court also rejected the argument that any of the defendants had acted in any way outside their official capacity in submitting the application for a grant of federal funds, so they were also not susceptible to lawsuit under the False Claims Act.

     Alexander v. Gilmore, 202 F. Supp. 2d 478 (E.D. Va. 2002).

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•••• EDITOR'S CASE ALERT ••••

Federal appeals court orders further proceedings on prisoners' challenge to policy preventing them from viewing movies rated R or NC-17. Trial court, in rejecting prisoners' First Amendment claim, could not just rely on "common sense," but instead needed to do a "thorough analysis" of the relevant penological interest and the prohibition's relationship to it.

     A class of federal prisoners challenged a prison policy that prevents them from viewing movies rated R or NC-17 (while not asserting any challenge to long-standing portion of the policy barring the showing of X-rated movies). The trial court granted the U.S. government's motion for judgment on the pleadings, reasoning that the prison policy met the requirement that restrictions on First Amendment rights of inmates be "reasonably related to legitimate penological interests," as set down in Turner v. Safley, 482 U.S. 78 (1987).

     Rejecting this ruling and ordering further proceedings, a federal appeals court found that the trial court did not conduct a "proper, thorough analysis under Turner in that it did not articulate the relevant penological interest or the prohibition's relationship to it." Further, it considered only the first part of the test required by Turner and found that it could rely on "common sense" in determining whether that part of the test had been satisfied, while the appeals court concluded that "this approach may not always 'fit' and an evidentiary showing may be required in certain situations."

     The policy in question was designed to implement the Zimmer Amendment, which prevents the expenditure of funds for the viewing of movies rated R, X, or NC-17 in federal prisons. Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, S 611, 110 Stat. 3009 (1996).

     Under Turner, the court stated, whether the policy imposes permissible limitations on the inmates' First Amendment rights depends on four factors set forth in the case:

There, the Supreme Court directed courts first to assess whether there is a " 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." If the interest is legitimate and neutral, and the connection is valid and rational, then courts should engage in the inquiries under the succeeding three prongs: whether "alternative means of exercising the right ... remain open to prison inmates," "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally, and, finally, whether there are 'ready alternatives" to the rule that would accommodate prisoners' rights at de minimus cost to penological interests

     The trial court however, ruled in a "conclusory fashion" that the Amendment and its implementing regulations were "neutral and reasonable, and rationally related to legitimate penological interests." In part, it relied on the endorsement of a "common sense" approach by the court in Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999), and concluded that "no evidentiary record was required."

     The appeals court found the trial court's opinion "deficient" because it never stated what the interest "purportedly served by the prison policy" was or determined whether the interest was "neutral and legitimate."

     The federal government "offered several theories in general terms at different times" to justify the policy, the court noted, but the trial court opinion "did not mention or discuss any such theories or interests." The appeals court stated that it could not tell, for instance, whether the trial court "credited the government's assertion that the movies posed security risks, or that the absence of such movies deterred people from committing crimes, or that denial of such movies fosters rehabilitation."

     The appeals court agreed that, in some cases, the relationship between a policy and the interests to be advanced could be established by "common sense" without specific evidence, but stated that whether that was so depended on the nature of the right, the nature of the interest asserted, the nature of the prohibition, and the obviousness of its connection to the alleged interest.

The showing required will vary depending on how close the court perceives the connection to be. A prohibition on inmate gatherings in prison common areas after 11-o'clock at night might have an obvious relationship to security concerns, as would a prohibition on publications that featured escape plans, or instructions on assembling weapons. Likewise, the connection between the goal of rehabilitation and a ban on distributing sexually explicit magazines to "repetitive and compulsive" sexual offenders may well be, as we stated in Waterman, sufficiently obvious to be evaluated as a matter of common sense. But is it a matter of common sense, as was argued here, that prohibiting movies rated R or NC-178 deters the general public from committing crimes, lest they be sent to prison where they are not permitted to watch R-rated movies? We are not so sure. On remand, the District Court must describe the interest served, consider whether the connection between the policy and the interest is obvious or attenuated -- and, thus, to what extent some foundation or evidentiary showing is necessary -- and, in light of this determination, evaluate what the government has offered.

    The appeals court also stated that the trial court must then consider the other three Turner factors on remand, which might require considering the factual basis "developed by affidavits or depositions."

     Wolf v. Ashcroft, #01-1869, 2002 U.S. App. Lexis 14852 (3rd Cir. 2002).

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California prisoner's role as chairman of an Inmate Advisory Council established by state regulations was a First Amendment protected activity; appeals court overturns summary judgment for officers accused of issuing false administrative warnings against prisoner in retaliation for his activities. Summary judgment upheld, however, for officers who filed disciplinary charges against prisoner and hearing officer who convicted prisoner, even though particular disciplinary finding was subsequently overturned by the warden.

     A California prisoner claimed that he was the victim of "unlawful harassment and retaliation" by correctional officers and employees because of his role as Executive Chairman of the Inmate Advisory Council (IAC) at the California Medical Facility in Vacaville, California. The trial court entered summary judgment against all of his claims, including claims of a racial conspiracy. The prisoner himself abandoned the racial conspiracy claim on appeal.

     A federal appeals court found that the plaintiff prisoner satisfied his initial burden of advancing "allegations with supporting evidence that he was targeted for retaliation on the basis of his participation in a constitutionally protected activity." There was no dispute that the defendants were aware of the plaintiff's status as chair of the IAC during the period in question, and the timing of various disciplinary actions against him could be properly considered "as circumstantial evidence of retaliatory intent."

     Under state regulations concerning the IAC, the plaintiff, as its chairman was chiefly responsible for "providing inmates of the institution with representation and a voice in administrative deliberations and decisions affecting the welfare and best interest of all inmates," and served in a limited capacity in the collection and administration of prisoner grievances at the facility, such as identifying and remanding to the warden grievances "of concern to the general inmate population." These activities, the court found, were protected activity under the First Amendment.

     The appeals court further stated that, when an individual guard or guards are alleged to have filed false disciplinary charges against a prisoner, a correctional officer's accusation is "not entitled to the 'some evidence' standard of review that we afford disciplinary administrative decisions." At the same time, the appeals court agreed that the trial court had properly entered summary judgment on the federal civil rights claim against a defendant who had acted as a hearing officer in the disciplinary action against the inmate. The disciplinary action was supported by "some evidence," and the fact that the disciplinary conviction was later overturned by the warden did not alter that result.

     The appeals court also found that two officers who filed charges against the prisoner accusing him of breaking prison rules by retaining and disclosing a complaint memorandum about actions of one officer who he criticized as racist and unprofessional had a sufficient basis to believe that the plaintiff had broken prison security rules, so they were entitled to summary judgment.

     The appeals court found, however, that there were genuine issues of material fact concerning whether several other officers had issued false administrative warnings against the prisoner in retaliation for his activities, so that these officers were not entitled to summary judgment.

     McQuillion v. McKenzie, #00-15505, 35 Fed. Appx. 547 (9th Cir. 2002).

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Prisoner could not pursue claim that alleged "tampering" with his legal mail concerning his ongoing lawsuit violated his right of access to the courts when it did not have an impact on the outcome of the case and he managed to receive a settlement that was satisfactory to him, but he could pursue claims as to whether prison officials had improperly opened his outgoing legal mail to the FBI and Justice Department without reason to do so, or had failed to deliver sixteen pieces of mail sent to him, returning them to senders without justification.

     A New York prisoner's federal civil rights lawsuit accused a number of correctional officials, including mailroom personnel, of having "tampered" with various items of his mail in violation of various First Amendment rights, including his right of access to the court.

     As for alleged interference with his legal mail and confiscation of legal papers by correctional officials, the court noted that the prisoner did not show that these alleged actions had caused him an "actual injury," since the prisoner was ultimately able to pursue his prior legal action and settle it on terms that were satisfactory to him. These actions, which included allegedly twice refusing to mail an envelope with 452 pages of legal mail to an attorney, and confiscating an affidavit as third party mail, since the affidavit was from another inmate, did not result in him "receiving a smaller settlement amount" in his pending lawsuit than he would have otherwise, or in any other way interfere with the outcome of the action. Accordingly, he could not pursue a claim for interference with his right of access to the courts.

     At the same time, the court found that there was a genuine issue of material fact as to whether correctional officials improperly opened the inmate's letter to an FBI agent and returned it to him, or opened a letter he sent to the Justice Department improperly. The court noted that prison officials can only open an inmate's outgoing legal mail if there is a rational justification for doing so, and the letters to the FBI and Justice Department could qualify as legal mail.

     The court further found that there were genuine issues of fact as to whether correctional officials improperly refused to deliver 16 pieces of mail sent to the inmate and instead returned them to the sender without justification, precluding summary judgment in the prisoner's lawsuit.

     The court also rejected claims against a senior mail clerk based on the return of the prisoner's catalog order to him, since he had not shown that this clerk was personally involved in the decision.

     Moore v. Gardner, 199 F. Supp. 2d 17 (W.D.N.Y. 2002).

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Physician and nurses at county detention facility were not liable for detainee's death, allegedly from alcohol withdrawal. Physician, far from exhibiting deliberate indifference, had trained the nurses concerning how to treat alcohol withdrawal, and nurse did not believe that detainee was suffering from such withdrawal, since he exhibited no signs of it other than shaking.

     A man arrested for driving under the influence of alcohol when his breath alcohol concentration tested at .317 after a traffic accident was taken to a county detention facility. Two nurses at the facility saw and observed the detainee. Some time during the night, but before 6 a.m. the following morning, the detainee died in his cell. An autopsy indicated that he died from an arrhythmia resulting from an electrolyte imbalanced caused by fatty liver.

     The detainee's estate sued a doctor who supervised medical care at the facility, as well as the two nurses, contending that they were responsible for the death on the basis of deliberate indifference towards the decedent's need for treatment for alcohol withdrawal.

     The Plaintiff argued that the doctor failed to train and supervise personnel under his direction and control with respect to the appropriate treatment of alcohol withdrawal and its severe danger to a person suffering from its effects, and that the nurses were deliberately indifferent to the decedent's serious medical needs.

     Granting summary judgment for these three defendants, a federal trial court found that the record showed that the doctor did conduct training of the nurses regarding alcohol withdrawal, providing them with protocols and policies to deal with it, and conducted monthly meetings during which these and other policies were discussed. This defeated any claim of "deliberate indifference" to the risk of harm from alcohol withdrawal.

     The court also found, in this particular case, that even if it were true that other prisoners told one of the nurses that they believed that the detainee was suffering from alcohol withdrawal, the nurse disagreed, based on her assessment that the detainee was exhibiting no signs of withdrawal other than "shaking." While her diagnosis might constitute negligence or malpractice, it did not rise to the level of deliberate indifference to a known risk of harm, and therefore could not be the basis for a federal civil rights lawsuit under 42 U.S.C. Sec. 1983.

     Further, during the other nurse's evaluation of the detainee, the detainee denied any history of suffering alcohol withdrawal and said that the shaking he was experiencing was "slight." There was no evidence of other symptoms of alcohol withdrawal, such as hallucination, nervousness, or seizures. While his eyelids were very puffy, the detainee stated that they had been that way "for a while," and he told the nurse that he had a blood disorder and hypertension, and that his medication had recently been changed. As with the other defendants, while this nurse's "actions may state a claim for medical malpractice or negligence," there was no basis for the assertion that she acted with deliberate indifference to the detainee's medical needs.

     Smith v. Lejeune, 203 F. Supp. 2d 1260 (D. Wyo. 2002).

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Correctional officers did not use excessive force in restraining a prisoner in his cell when he was obviously undergoing a mental breakdown of some sort and some level of force was needed to restore order, but deceased prisoner's estate could proceed with its claim that the officers were deliberately indifferent to his serious medical needs by failing to attempt to resuscitate him at once after they realized he was not breathing.

     A 17-year-old pretrial detainee was transferred to an Alabama county detention facility from the state Department of Youth Services facility to be held pending trial on escape charges. During intake, he told a nurse that he had a history of mental illness and was currently prescribed medications for "rest," but did not know the name of the medications. The nurse decided not to obtained the prisoner's medical records because it was the policy of the detention facility not to give medication for "rest."

     The nurse did not think that the detainee was a suicide risk, so no isolation or further evaluation was ordered. Unknown to the nurse, the detainee had been diagnosed as "psychotic" by a psychologist and placed on antipsychotic medication, based in part on his hyper-religious behavior. There were no procedures at the detention facility to determine upon intake whether a non-suicidal inmate should be referred for mental-health evaluation or treatment.

     Several months later, the detainee had what appeared to be a mental breakdown in his cell, stripping off his clothes, and flooding the area by stopping up the commode. He also started shouting phrases like "the blood of Jesus is on me," "Jesus come get me," and dipped his face and head in the water in the commode. He also tied a string around his neck in an apparent though futile attempt to strangle himself, as the string was not strong enough to support his weight.

     Correctional officers responding to the disturbance attempted unsuccessfully to calm him down from outside the cell, and made a decision to enter. A prisoner in an adjacent cell subsequently stated that the officers told the detainee that if they had to come into his cell, they were going to "kick his ass."

     An altercation of some kind occurred, during which the officers were able to subdue the detainee on his bunk and handcuff and shackle him, to remove him from his cell. Other inmates stated that he was not moving when he was removed, and looked "unconscious or dead."

    He was allegedly carried out, face-down and covered by a sheet, by four officers, with an officer on each arm and on each leg, using batons passed through the shackles and handcuffs, a method of carrying him which would have made his weight bear down on his upper body and chest, restricting his ability to breathe. The officers later stated that they had been trained to carry inmates in this manner, and none of them knew that this method of carrying him could cause him to asphyxiate or result in serious harm.

     The inmate was subsequently found to be not breathing, and all attempts to resuscitate him were unsuccessful, and he was pronounced dead. An autopsy indicated that the cause of death was asphyxia.

     The decedent's estate sued the officers and other defendants, alleging excessive use of force and deliberate indifference to serious medical needs. Despite the defendant officers' alleged threat to the decedent to "kick your ass" if they had to come into his cell, the court rejected the excessive force claim, noting that the decedent was obviously undergoing some sort of mental breakdown and that some use of force was needed to restore order.

     At the same time, the court found that the estate could proceed with its claim that the officers were deliberately indifferent to the decedent's serious medical needs by failing to resuscitate him after they realized he was not breathing. The plaintiff contended that the officers knew the prisoner was in this state before they left the cell or shortly thereafter. The court found "competent evidence to suggest that the officers knew" he was unconscious and not breathing when they took him from the cell. "Once the officers knew that they had applied force sufficient to render" the prisoner unconscious, they were "obligated to make sure that that force had not left him lifeless too."

     "Failing to resuscitate or immediately call medical personnel in response to an unconscious, non-breathing prisoner," the court stated, violates clearly established law.

     The trial court did find evidence that the detention facility had policies which included warnings on the dangers of positional asphyxia. Accordingly, there was no basis for supervisory liability, because the policies were in place, for any alleged individual wrongdoing of employees "in contravention of those standards."

     Bozeman v. Orum, 199 F. Supp. 2d 1216 (M.D. Ala. 2002).

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

     EDITOR'S NOTE: In a comment at the conclusion of his opinion, the trial judge in this case stated that "the ultimate source of the unfortunate outcome in this case was the lack of proper mental-health treatment" given to the detainee while in the county detention facility. He noted that a "significant percentage of inmates, 15 to 20%, according to several studies, suffer from mental illness when incarcerated." See e.g., Justice Resource and Statistics Association, Crime and Justice Atlas 2000, 15-16 (available online at http://www.jrsa.org/programs/crimeatlas.html). He suggested that it is a "grave and unfortunate lapse for a detention facility not to have a dedicated mental-health professional involved in screening new inmates or detainees and routinely checking, for all inmates, to see if there are past mental-health records available. However, according to binding law, this lapse does not amount to a constitutional deprivation; redress lies not with the courts but rather with the detention facilities themselves and those responsible for the facilities."

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The fact that a former inmate was no longer a prisoner when he appealed the dismissal of his federal civil rights lawsuit for a failure to exhaust administrative remedies was irrelevant--the dismissal was proper because he was still a prisoner when he initially brought the lawsuit, and the facts showed that he failed to pursue his grievances through every available administrative route.

     An Illinois prisoner brought a federal civil rights lawsuit contending that prison officials failed to adequately protect him from beatings and harassment by other inmates. He claimed that he was beaten up by three members of a gang who had a "hit" placed on him. He further claimed that he then made repeated requests for assistance and protection, but received none, subsequently being stabbed by a prisoner who was a member of the same gang, and had been placed in the cell with him. He also claimed that his request for a transfer to another facility for his protection was denied, and that he was also beaten by prison officials in retaliation for filing an administrative complaint against them.

     The trial court dismissed most of his complaints for failure to exhaust available administrative remedies prior to filing his lawsuit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(a).

     On appeal, the plaintiff prisoner claimed that he did not have to exhaust his administrative remedies because it would be futile for him to do so when he is seeking money damages and the Illinois administrative system does not provide for such awards. "However," the court noted, "this precise argument has been rejected" by the U.S. Supreme Court in its recent decision in Booth v. Churner, 532 U.S. 731 (2001), which was issued the day before the prisoner filed his appeal. "Booth held that administrative exhaustion was required even if the process would not result in a prisoner's desired form of relief."

     The appeals court also rejected the argument that the exhaustion requirement did not apply to the plaintiff prisoner because he had been released prior to pursuing his appeal. "A plaintiff's status as a 'prisoner' is to be determined as of the time he brought the lawsuit," the court stated. When the plaintiff filed his complaint, he was a prisoner, who had access to the prison's administrative grievance system. "That he is no longer a prisoner at the time of this appeal does not excuse him from the exhaustion requirement since exhaustion is a precondition to the filing of a complaint in federal court."

     The appeals court also rejected the argument that the prisoner had properly exhausted his administrative remedies when he "filed his many grievances in the administrative system." While he filed them, the court admitted, he failed to pursue them through to their conclusion in the Illinois Department of Corrections three-step grievance procedure. See 20 Ill. Admin. Code Sec. 504.800 et seq. The record showed that he filed four grievances concerning his failure to protect claim and was denied relief on all of them, but on three of them never appealed the denial of relief to the Director of the Department of Corrections, the next step in the process.

     On the fourth grievance, he did appeal to the Director, but did not do so until after he had filed his complaint in federal court, so he did not satisfy the exhaustion requirement on that one either.

     The prisoner did receive a trial on certain claims on which he had exhausted his administrative remedies and attempted to present to the appeals court a "sort of single source theory--that the exhaustion of those claims preserved the unexhausted claims" because all of his claims arise ultimately from the failure of the prison system to protect him from the gang. The court rejected this argument as having "no merit."

     The appeals court also upheld the dismissal of grievances concerning the alleged beating by prison officials and the request for a transfer, in both cases for failure to exhaust available administrative remedies.

     In an interesting twist, the appeals court noted that the plaintiff prisoner was formally provided the relief he sought on his grievance requesting a transfer. That is, he was granted a transfer by the decision, but was never actually transferred. The state argued that the prisoner did not exhaust remedies on this grievance because he could have appealed to the Director after waiting thirty days for his transfer, seeking to enforce the decision below. The appeals court agreed with this argument, stating that the state rules governing the grievance process "may be construed to require a direct appeal to the Director if relief was granted in theory but not promptly translated into practice."

     The appeals court also commented that requiring the plaintiff prisoner to appeal directly to the Director under these circumstances "would furnish the Director with an opportunity to learn of possible infirmities in the prison grievance system and to correct any such infirmities--one of the purposes of Sec. 1997e."

     Dixon v. Page, #01-1973, 291 F.3d 485 (7th Cir. 2002).

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County was not liable to detainee's suicide in jail on the basis of alleged inadequately staffing when it had an effective policy of checking on suicidal inmates every fifteen minutes and an officer saw and spoke to the detainee 15 to 20 minutes prior to the time he was found hanging in his cell.

     A man was arrested on charges of predatory sexual assault of a child and criminal sexual assault, based on accusations that he sexually assaulted his two step-daughters. In the county jail, a notation was made on the screening form that the detainee was suicidal, based on his statements to the intake officer that he had previously attempted suicide. As a result, he was placed in a special needs cell near the booking area.

     The cell in question was in a corridor with a lot of guard traffic and staff passing by, and with a small observation window in the steel door through which a guard could see into the cell. The policy at the jail was to check on inmates in that cell every fifteen minutes. A correctional officer found the prisoner hanging in his cell, approximately 15 to 20 minutes after having checked on him. He had braided a rope using stuffing from his mattress and had secured it in the ceiling with a stick that looked like a piece of wooden handle. Medical assistance was summoned, but the prisoner could not be revived and was pronounced dead shortly thereafter.

     The decedent's wife, as executor of his estate, sued the county for allegedly violating the prisoner's due process rights. The Complaint asserted that the county had been deliberately indifferent towards the risk that the prisoner would commit suicide, and also contended that it had failed to adequately staff the jail. The jail had originally been built to house 106 inmates in 1973, but by the date of the suicide, in 1999, because of the double bunking of cells and the use of other rooms, it had a capacity of 217 prisoners.

     The court noted that there were seven correctional officers on duty at the jail that day, and a total number of 129 inmates in custody. The trial court granted summary judgment to the defendant county. It found that the policy of placing potentially suicidal detainees in the special needs cell and checking on them every fifteen minutes, could reasonably be believed to be "an effective way to prevent suicide by detainees," particularly in light of the lack of any evidence that there had been a prior suicide problem at the jail.

     Rather than showing "deliberate indifference" to the risk of suicide, the county's actions showed that it had "implemented precautionary measures" to prevent it. The court also rejected the argument that understaffing had caused the suicide, in light of the seven people on duty on the day of the incident and testimony by the sheriff that he did not think having additional staff present on that day would have "made a tremendous difference."

     The court also placed some emphasis on the fact that an officer did speak to and see the prisoner 15 to 20 minutes prior to the time he was found hanging, so that the argument that additional staff at the jail could have prevented the suicide "is couched in terms of rather remote possibility, not substantial probability."

     Rapier v. Kankakee County, Illinois, 203 F. Supp. 2d 978 (C.D. Ill. 2002).

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Hand abrasion that prisoner suffered during frisk search was insufficient to support a claim for excessive use of force. Prison Litigation Reform Act requirement that a prisoner show a physical injury in order to recover damages for mental or emotional harm applied even though plaintiff was no longer a prisoner when he filed suit.

     A New York prisoner was subjected to a pat frisk by a correctional officer while exiting the mess hall. After the officer allegedly heard the prisoner state that he was going to "leave bodies all over the place," the officer ordered him to put his hands up against the wall. After initially complying, the prisoner tried to turn away from the wall towards the officer. The officer then placed his right hand between the prisoner's shoulder blades and pushed him back to the wall, completing the pat frisk without further incident.

     The prisoner subsequently filed a federal civil rights lawsuit against the officer, alleging excessive use of force. The plaintiff alleged that during the pat frisk, the officer pulled his jacket over his head and pushed him hard enough to "cause his face to hit the wall." The plaintiff subsequently admitted, however that his "face did not hit the wall as he turned to the right to avoid doing so." As a result, the only physical injury claimed was a "hand abrasion that occurred while he was pulling his jacket off and moving to the right to avoid hitting the wall." The prisoner himself admitted that this was a minor injury akin to a "zipper cut," and an examination and photograph taken by a nurse that same day found that he had "no obvious injuries."

     The plaintiff prisoner also complained that he was subsequently denied the right to call a witness at a disciplinary hearing over misbehavior charges brought against him by the correctional officer over the incident.

     The trial court granted summary judgment for the defendants in the lawsuit. The court found, first of all, that the fact that the plaintiff was no longer a prisoner at the time he filed his lawsuit did not excuse him from the requirement in the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e(e) that he had to first show a physical injury to seek damages for mental or emotional distress. "Because the plaintiff's suit alleges only emotional injuries," the court reasoned, "it is barred by the PLRA irrespective of his status as a parolee at the time of filing."

     As an alternative ground on which the plaintiff's excessive force claim could be dismissed, the court noted that the force used in this case was minimal. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." The prisoner had not shown that the single allegation of a scratched hand rose to the level of an excessive use of force sufficient to constitute an Eighth Amendment violation.

     Nor had he shown that the officer used the force maliciously to cause harm. Instead, he was acting in good faith to maintain order, when the prisoner was not cooperating in a pat frisk brought about by his own threatening statements." The amount of force used was what was "needed to make plaintiff comply with the search and no more."

     Finally, the court found that the prisoner had waived any claim over the alleged failure to call a requested witness at his disciplinary hearing by "acquiescing" in the hearing officer's decision to conclude the proceedings and failing to request there that the witness be interviewed or called to testify. The prisoner's "silence when he was given the opportunity to speak, implicitly ratified" the hearing officer's decision to close the hearing without the testimony of the witness.

     Cox v. Malone, 199 F. Supp. 2d 135 (S.D.N.Y. 2002).

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Female prisoner who reported that she had been raped by a supervising deputy in the county jail failed to show that the county had a policy of ignoring sexual harassment and sexual assault complaints. While accused deputy was not disciplined following the county's own investigation, he was suspended when a subsequent state police investigation resulted in criminal charges against him, and the record showed three other cases in which a deputy had been disciplined for alleged sexual misconduct.

     A 19-year-old female prisoner at a county jail claimed that she had been raped by the male deputy who was supervising her. The prisoner was incarcerated for possession of a controlled substance, and had a severe mental impairment and a history of mental illness. The deputy she accused of raping her was a supervisor, and she contended that he had vaginal intercourse with her in her cell after ordering a lock-down of all cells except hers following a dinner break.

     When she reported the incident several weeks later to a female corrections officer at the jail, an incident report was filed and an investigation was begun. The result of the investigation was allegedly exoneration of the accused deputy and the prosecution of the prisoner and two other inmates for filing a false felony police report. A subsequent investigation was launched by the Michigan State Police after the sister of another inmate filed a complaint.

     The 19-year-old female prisoner had allegedly had another inmate store the deputy's semen in a plastic bag, and DNA testing of the sperm sample during the state investigation confirmed that it belonged to the deputy, with some of the prisoner's DNA also present. The prisoner also passed a polygraph test regarding the incident. Following that, the deputy was suspended without pay pending the resolution of criminal charges against him. He ultimately pled guilty to a lesser included offense.

     The assaulted prisoner filed a federal civil rights lawsuit against the county and the county sheriff. The Complaint asserted that the county jail had a custom and policy of ignoring sexual harassment and sexual assault claims by prisoners and had created an atmosphere that "facilitated" the prisoner's rape.

     During the discovery phase of the lawsuit, another inmate claimed that it was commonplace at the jail for deputies to have sex with inmates. In response, the sheriff's office produced four complaints of alleged sexual misconduct on the part of deputy sheriffs for the three years prior to the incident at issue. Of these cases, three of the deputy sheriffs received disciplinary action after an internal investigation, and one allegation was determined to be unfounded. The county also contended that it had a "strict policy" against sexual harassment and sexual misconduct on the part of any deputy sheriff. The trial court granted the county's motion for summary judgment on the federal civil rights municipal liability claim.

     Upholding that result, a federal appeals court agreed that the county had a "special duty of protection" towards persons in custody." But it also emphasized that liability for the sexual assault on the prisoner could not be based solely on the employer-employee relationship between the county and the deputy.

     While the plaintiff prisoner could easily show that her fundamental substantive due process right to "personal security and to bodily integrity" was violated by the sexual assault, and that she was owed a duty of protection from this harm, she did not show that there was any county policy or custom that caused the harm.

     The court noted that the county did discipline the deputy after the results of the state police report investigating the incident became available, and it did show that there were other cases in which officers were disciplined for sexual harassment and assault at the county jail.

     The plaintiff prisoner's only evidence for her claims was the fact that the deputy was not suspended from duty after the sheriff's office had completed its own investigation and that further action did not take place until the state police had completed their investigation. The plaintiff prisoner, the appeals court commented, "may not be responsible for the fact that other inmates gave alternate accounts of assault that conflicted" with her version in order to "garner their own settlement" with the county, but this did make the county's investigation "much more difficult and less likely a cover-up."

     Ford v. County of Oakland, #00-2140, 35 Fed. Appx. 393 (6th Cir. 2002).

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Deputy could not be held liable for negligence in the use of force against a visitor during an argument among visitors over "cutting" in line, since his actions were intentional. Court also holds that county, sheriff's department, and sheriff were not responsible for visitor's alleged injuries.

     A woman was waiting in line to sign in as a visitor at a county detention facility when an argument broke out concerning whether other visitors were cutting in line. A deputy sheriff who was present intervened and, according to the visitor, grabbed her and threw her to the ground with excessive force. According to the deputy, he grabbed her arm because she was about to strike another visitor, and then he lost his balance and fell to the ground along with the visitor. She was arrested on a charge of disorderly conduct that was later dismissed. The visitor filed a lawsuit asserting claims for negligence, false arrest, and malicious prosecution, naming the deputy, the sheriff, the sheriff's department, and the county as defendants.

     The state trial court granted summary judgment for the defendants on all claims except false arrest.

     A New York intermediate appellate court upheld the dismissal of the negligence claim against the deputy. "New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently." In this case, the court noted, it was undisputed that the deputy intended to "grab" the visitor, so that the trial court properly dismissed the negligence claim against the deputy based on his alleged use of unnecessary force.

     The court also concluded that the claims against the county, sheriff, and the sheriff's department were properly rejected, because there was no showing that anything they did was a proximate cause of the visitor's injuries. These defendants had assumed no special duty to protect the plaintiff and the plaintiff failed to raise an issue of fact whether the conduct of these defendants "actually lulled" her into a "false sense of security," induced her "to either relax her own vigilance or forego other avenues of protection, and thereby placed her in a worse position than she would have been in had they never assumed the duty."

     Smith v. County of Erie, 743 N.Y.S.2d 649 (A.D. 2002).

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Death Penalty

     Prisoner sentenced to death was not entitled to a temporary restraining order based on his claim that prison officials planned to violate his right to privacy by permitting an "excessive number" of  his victim's family members to view his execution and by improperly allowing recording equipment in the execution chamber. Prisoner did not show a substantial likelihood of success on his underlying federal civil rights claim. Coleman v. Wilkinson, No. 02AP-456, 770 N.E.2d 637 (Ohio App. 2002).

Defenses: Absolute Immunity

     Sheriff's investigator who prepared felony complaint and arrest report for county jail inmate accused of assaulting another prisoner was entitled to absolute prosecutorial immunity from the prisoner's false arrest claim, even though he was not an employee of the prosecutor's office, but rather of the sheriff's department, because the decision to file a criminal complaint and seek an arrest warrant were quasi-judicial and prosecutorial in nature. Goncalves v. Reynolds, 198 F. Supp. 2d 273 (W.D.N.Y. 22001).

Employee Injury/Death

     Former employee of Texas correctional facility could pursue claim for occupational disability benefits for back injuries allegedly suffered when he slipped and fell on a wet floor as it was being mopped by an inmate. The risk of such an injury was a "risk or hazard" that was "peculiar to unique duties" as a food-service manager at the facility, for purposes of showing an entitlement to the claimed benefits. Langford v. Employees Retirement System of Texas, No. 03-01-0081-CV, 73 S.W.3d 560 (Tex. App.--Austin, 2002).

False Imprisonment

     Prisoner's claim contending that seventy days were unlawfully added to his Missouri state court sentence involved only interpretations of state law and therefore could not be pursued as a federal civil rights lawsuit under 42 U.S.C. Sec. 1983. Donaldson v. Purkett, #01-3262, 33 Fed. Appx. 233, 2002 U.S. App. Lexis 7393, 2002 WL 655549. (8th Cir.).

Inmate Property

     Federal civil rights claim over damage to television set mailed to inmate was properly dismissed because the plaintiff had an adequate state remedy available to him to address this alleged deprivation. The plaintiff prisoner's claim was also properly dismissed as frivolous for seeking $1.4 billion for the loss. Plaintiff prisoner also failed to show that he had exhausted available administrative remedies. Dunlap v. Fulghum, #01-6373, 35 Fed. Appx. 163 (6th Cir. 2002).

Jail Conditions: General

     County jail inmate's claim that he was forced to sleep on a mattress on the floor in a cold cell for six days that was regularly sprayed with insecticides was not sufficiently serious to state a claim for a violation of his constitutional rights. Wells v. Jefferson County Sheriff Department, #01-3575, 35 Fed. Appx. 142 (6th Cir. 2002).

Medical Care

     Prisoner who suffered a stroke after allegedly being deprived of his hypertension medication for a month could not recover for alleged violation of his Eighth Amendment rights in the absence of any expert medical testimony showing that the deprivation of the medication had anything to do with causing his stroke. Robinson v. Hager, #s. 01-2388, 01-3388, 292 F.3d 560 (8th Cir. 2002). (.pdf format).

     Prisoner could not recover damages for sheriff's alleged denial of medical care for a spider bite or sheriff's alleged negligence in failing to adequately fumigate the facility. The record showed that the prisoner filed numerous grievances during the period in question, including one filed two days after the alleged spider bite, but never mentioned the bite or the need for medical treatment for it. Hardy v. Foti, No. 2001-CA-1257, 812 So. 2d 792 (La. App. 4th Cir. 2002).

     Prisoner was properly awarded $174,178 in damages for asserted delays in his treatment for glaucoma and skin cancer. Evidence showed that, despite his repeated grievances, treatment was delayed and required surgical removal of a lesion rather than cryosurgery and increased the future risk of skin cancer. Delay in treating glaucoma resulted in corneal swelling and might result in the loss of his eye. Caldwell v. District of Columbia, 201 F. Supp. 2d 27 (D.D.C. 2001).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner's initiation of an "informal" grievance concerning his alleged wrongful transfer from one facility to another was insufficient to meet his burden of exhausting available administrative remedies before pursuing a federal civil rights lawsuit when he did not complete the formal grievance procedure, but instead signed a form indicating that he was satisfied with the outcome of the informal process. Williams v. Jefferson County Circuit Court Clerk, #01-5885, 33 Fed. Appx. 763 (6th Cir. 2002).

     Inmate's failure to pursue a grievance against a particular prison official for allegedly filing a retaliatory report against him because of the prisoner's complaints about other officials results in a requirement that his federal civil rights claim against that official must be dismissed for failure to exhaust available administrative remedies. Richardson v. Hillman, 201 F. Supp. 2d 222 (S.D.N.Y. 2002).

     The U.S. Supreme Court's decision in Porter v. Nussle, 122 S. Ct. 983 (2002), ruling that claims of every sort relating to prison life--including claims for excessive force against an individual inmate--must satisfy the exhaustion of remedies requirement of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e, applies retroactively to a case in which the complained of incident occurred before Porter was decided. Hemphill v. New York, 198 F. Supp. 22d 546 (S.D.N.Y. 2002).

Procedural: Appeal

     Members of a class who are not named class representatives may still appeal settlements of federal class action lawsuits. Devlin v. Scardelletti, #01-417, 122 S. Ct. 2005 (2002).

Procedural: Jurisdiction

     Sheriff properly removed federal civil rights lawsuit filed by prisoner's estate in state court to federal court even when other defendants objected to removal when he did so before the other defendants had been served. Deputy's right to object to sheriff's removal of case to federal court was limited by statute, 28 U.S.C. Secs. 1146, 1147(c), and 1148. Schmude v. Sheahan, 198 F. Supp. 2d 964 (N.D. Ill. 2002).

Racial Discrimination

     Correctional officer's use of racial slur to prisoners was insufficient to support a federal civil rights claim for racial discrimination. His alleged comment that "all you black prisoners do is sit around trying to get out of prison," while not "polite," was not accompanied by "brutal or cruel acts that would have caused" the prisoners "legitimate concern for their personal safety or well-being," and therefore, while not condoned, failed to rise to the level of a constitutional claim. Pendelton v. Mills, 73 S.W.3d 115 (Tenn. App. 2001), permission to appeal denied by Tenn. Supreme Court, Feb. 11, 2002.

Religion

     Prison officials' designation of Saturday as cell cleanup day violated a Jewish inmate's First Amendment right to practice his religion, and no rational connection existed between the policy of designating Saturday-only cell-cleaning and the prison's interest in efficiency, safety, and security. Prison officials were, nevertheless, entitled to qualified immunity from liability as there was, at the time of the violation, prior to 1999, "virtually no guidance" in case law regarding the observance of the Jewish Sabbath in the context of prison work. Murphy v. Carroll, 202 F. Supp. 2d 421 (D. Md. 2002).

Article: "Blunt and penetrating injuries caused by rubber bullets during the Israeli-Arab conflict in October, 2000: a retrospective study," The Lancet, 25 May 2002. The article is online, but free registration is required at http://www.thelancet.com/ -- then access the article at: http://pdf.thelancet.com/pdfdownload?uid=llan.359.9320.original