FEATURED CASES

WITH LINKS TO THE OPINIONS

Federal appeals court upholds verdict for prison officials in lawsuit by HIV-positive prisoner who missed his medication for two periods of time. For Eighth Amendment purposes, the jury was free to consider the absence of concrete serious injuries resulting from the lack of medication as a relevant factor in whether a constitutional violation occurred.

     Agreeing that a prisoner's HIV-positive status constituted a serious medical condition, a federal appeals court nevertheless affirmed a trial court's denial of a new trial in his lawsuit over having been deprived of his medication for several days during two periods of time following a jury verdict for defendant prison officials.

     The prisoner was denied his medications for seven days the first time due to a delay in refilling the prescriptions, while he later was not provided with replacement medication for five days after his HIV medication was confiscated during a random search of his living quarters.

     While there was testimony in his case that strict compliance with his drug regimen was required to prevent deterioration of his immune system and to slow the progression of his HIV infection, a condition that can ultimately lead to death from full blown AIDS, the appeals court found that the jury was also entitled to consider evidence regarding the absence of actual medical injury resulted from these two brief denials of medication as relevant factors in determining whether prison officials had been deliberately indifferent to his serious medical needs.

     In this case, while the prisoner testified that he suffered temporary itching, severe headaches, and stress, he did not introduce any evidence that his HIV infection or overall health worsened as a result of the "two isolated episodes of missed medication." The court rejected the argument that the trial court, in determining whether to grant him a new trial, should have only required him to establish a "potential" for serious future injury in order to state an Eighth Amendment denial of medical care claim.

     It is the "particular risk of harm faced by a prisoner due to the challenged deprivation of care," the court stated, "rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Under the circumstances, the jury was entitled to find that the prisoner failed to demonstrate deprivation of  a serious medical need.

     Smith v. Carpenter, #01-0294, 316 F.3d 178 (2nd Cir. 2003).

      »Click here to read the text of the decision on the Internet.

     •Return to the Contents  menu.

Correctional officer's use of mace in the course of quelling disturbance among death row inmates was not malicious or sadistic. Genuine issues remained as to whether commander of special response team failed to adequately control and instruct subordinates in suppressing confrontational prisoners or allowed the excessive use of "lethal levels" of gas and other chemical agents before ordering entry into death row unit. Death row prisoners could not pursue claims against unidentified officers concerning the use of excessive force.

     After prisoners on a death row unit in an Ohio prison started a disturbance, special response teams from several institutions in the area were summoned to assist in quelling the disturbance and regaining control. The prisoners had barricaded the doors to the unit, painted the windows to obscure the view, and were in possession of security keys. Officers also received information that the prisoners had weapons such as broom and mop handles, and that there was prisoner-on-prisoner violence taking place, as well as considerable destruction of property.

     A lieutenant commanding the special response teams developed a tactical plan to regain control of the unit, which was reviewed and approved by the warden. He decided to use chemical agents prior to entry into the unit to help ensure staff and inmate safety and security. Once this was done, five hours after the disturbance had begun, the teams entered the unit through the front door, which had been chained and barricaded. Officers found the prisoners in the cells, although they were not in their assigned cells and at least one cell contained three inmates. Officers secured cell doors and food slots, and then went to each cell and handcuffed the inmates, escorting them out of the death row area and into a penal industries warehouse area, where the inmates were medically treated.

     Following the incident, a number of the prisoners sued correctional officials and officers, claiming excessive use of force.

     The trial court granted the defendant officials and officers motions to dismiss and for summary judgment. A federal appeals court upheld this result, with some exceptions.

     Ruling on an evidentiary matter, the court held that evidence of a report prepared by a committee appointed by the Department of Corrections, which was based on 123 interviews and the review of numerous documents should have been admitted by the trial court. While the committee members may have lacked personal knowledge of the disturbance at issue, the report compiled appeared to be based on the personal knowledge of those interviewed. Upon remand, if the trial court finds that the sources of information or other circumstances indicated a lack of trustworthiness, then it could still exclude the report.

     The appeals court upheld the trial court's determination that one officer's use of liquid mace to spray one plaintiff prisoner in the eyes and face was reasonable. The officer used the mace when the plaintiff placed his face near the broken window in his cell. The trial court had found that the prisoner had failed to establish that the officer acted in a malicious or sadistic manner. It noted that it had to be kept in mind that the officer was acting in the context of a prison disturbance in which prison officials had lost control of the death row unit, so that "substantial deference" must be given to the officer's decision to use mace, "which he made in haste and under significant pressure." 

     The appeals court also ruled that the prisoners could not pursue claims that unidentified officers used excessive force in removing them from their cells and escorting them to the warehouse area for medical treatment. "There is no way for a jury to determine whether the conduct was a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm, absent an allegation that certain individuals are responsible for the conduct."

     The appeals court rejected the argument that the plaintiff prisoners were entitled to "recover damages from some source, even if they cannot prove that any named defendants actually used force against them. Plaintiffs essentially seek to impose respondeat superior liability against the supervisory officers" and the agencies or state for the actions of these unidentified officers, but it is "well settled that Sec. 1983 liability will not be imposed solely" on the basis of an employer-employee relationship.

     Correctional officials who were not present in the facility during the incident or were not involved in it could also not be held liable. The appeals court further upheld findings that there had been no misconduct of any sort by the warden.

     Further proceedings were ordered, however, on the possible liability of the Lieutenant who commanded the special response team, based in part on the investigation report which found that he had inadequately briefed team members prior to their entry into the unit, and that "no instructions" were given regarding the extraction of the inmates from their cells. The investigating committee had concluded that this led to team members "free lancing" as they encountered a situation and the onsite supervisors "losing control" of the team members' actions.

     Additionally, the report found that at least four explosive distraction devices, 113 explosive gas devices, and six canisters of pepper mace were used to quell the disturbance and that "it is believed that the air concentration level could have reached a lethal level. The committee found that the Lieutenant failed to "maintain fundamental control of the operation," and that the "use of gas, mace and distraction control devices was excessive, uncontrolled, and clearly compromised the safety of staff and inmates." This raised genuine issues of material fact as to the Lieutenant's liability, the court held.

     Lastly, the court held that the prisoners were not entitled to injunctive relief. The Plaintiffs had requested an order requiring correctional officers to wear name tags or other identification and to videotape cell extractions in order to avoid reoccurrence of the events surrounding the disturbance. "The failure to wear identification or use a video camera is not a constitutional violation itself but is a violation of departmental policies and regulations. "We are without authority to order defendants to conform their decisions to state law.

     Combs v. Wilkinson, #00-4270, 315 F.3d 548 (6th Cir. 2002).

      »Click here to read the text of the decision on the Internet.

     •Return to the Contents  menu.

Prison officials failed to meet their burden of showing that they would have imposed the same punishment on a prisoner regardless of their alleged retaliation against him for exercising his constitutionally protected right to use the prison grievance system to complain about alleged staff racism.

     An African-American inmate in New York correctional facilities completed a seventy-eight hour course in Legal Research and Law Library Management at one of the prisons, which qualified him to work as a clerk in the facility's law library. He was subsequently transferred to a number of other New York prisons. While at one of the prisons, correctional officials filed a misbehavior report against him and punished him with solitary confinement. He alleged, in a federal civil rights lawsuit, that this misbehavior report and his punishment were in retaliation for his exercising his constitutional right to file grievances.

     The trial court granted summary judgment for the defendant officials, but a federal appeals court has now reversed and remanded the case, finding that the prisoner, on the one hand, met his burden of showing that his conduct in filing grievances was constitutionally protected and that there was a genuine issue of fact as to whether retaliation for this conduct was a "substantial factor" in the decision to charge and punish him, while the defendant officials, on the other hand, failed to meet a burden of showing that they would have imposed the same punishment regardless of their alleged retaliation against him.

     The plaintiff prisoner had filed a formal complaint with a prison superintendent, complaining of an incident in which a prison vehicle ran over another inmate. The prisoner stated that he had overheard prison staff members praising the officer who had "used the van as a deadly weapon" and describing the incident "as a video game where Blacks and Hispanics are the targets." The superintendent interviewed the prisoner in response.

     In a misbehavior report that the superintendent subsequently filed, he described the interview by saying that the prisoner "told me he was an inmate advocate against staff racism and misconduct," had "admitted to me that he had no personal knowledge of the incident but he was telling other inmates in population to write complaints to Albany and the Superintendent on the matter," and stated that "inmate action would be the only way to make people aware of the problems with staff" at the prison. The superintendent, in his report, also alleged that the prisoner "threatened inmate unrest and people getting hurt," and stated that he advocated "inmates and officers taking off their shirts and fighting to solve their disagreements," as well as advising other inmates to "file law suits and write complaints against staff at this facility."

     The misbehavior report charged the prisoner with violating a prison rule prohibiting inmates from leading, organizing, participating, or urging other inmates to participate in action which may be "detrimental to the order of the facility" and another rule prohibiting engaging in conduct "which disturbs the order of the facility."

     At the disciplinary hearing, the prisoner explained that his statement about taking off shirts and fighting things out was a statement hypothetically made in order to support his theory that "racism is nothing but a coward afraid of himself," and he denied having threatened to become the facility's "biggest problem," explaining that he was merely reporting what he had heard prison officials saying about him. He also denied that he had threatened to instigate inmate unrest, explaining that he had only warned that the van incident would, in all likelihood, lead to inmate unrest he did not want to be a part of. He also said that one of the prisoners he talked to had allegedly witnessed the van incident and that he had recommended that he file a grievance, as well as mentioning the incident to two other inmates, both prisoner representatives to whom prisoners are supposed to turn to with their grievances.

     The superintendent testified at the hearing that the prisoner's making of statements that the officer had intentionally run into an inmate with a van, without having personal knowledge of the incident was "extremely dangerous" and the "fact that this incident did not take place and he is advocating that it did take place" could "definitely cause inmate unrest and that is the reason for his confinement, removing him from general population."

     The prisoner was found guilty of urging other inmates to participate in action detrimental to the order of the facility, but not guilty of creating a disturbance. He received a penalty of ninety days' keeplock and was subsequently transferred to another facility.

     The appeals court found that these facts adequately met the prisoner's burden of showing that he was engaged in constitutionally protected activity in filing a grievance or complaint, and that there was "circumstantial, but sufficient, evidence to create a genuine issue of material fact as to whether retaliation was a substantial factor" in the decision to charge and punish him. "Not only was the July 9th misbehavior report written shortly after the July 3rd grievance, it arose from statements" that the superintendent says the prisoner made to him during their discussion of the July 3rd grievance. Additionally, the prisoners assertions "gain additional support" from the fact that the hearing at which he was found guilty of violating prison rules was eventually administratively reversed.

     The court noted that the superintendent charged the prisoner with "organizing other inmates," but could not point to any inmate action, let alone inmate action connected to the prisoner, that had occurred that day. The prisoner's comments could be interpreted by a finder of fact as merely meaning that in "some vague sense," he was "planning to be a pain in the neck" by "further and more frequent protected activity rather than any violation of prison rules," and could find that the superintendent's real motive was to "prevent such additional protected activity."

     The court also found that the defendant officials had not met the burden of showing that the prisoner would have been punished to the same extent regardless of the alleged retaliation. The prisoner had denied making some of the inflammatory statements attributed to him by the superintendent, and had also explained that two of his three discussions of the van incident with other inmates were "fully within the prison's grievance policy, leaving only one occasion where he responded to an inmate's firsthand account of the incident by suggesting that he file a grievance."

It is therefore disputed whether Gayle [the prisoner] committed all of the prohibited conduct, and, more important, whether he committed the most serious of the conduct--threatening to instigate inmate unrest.

     The appeals court found, therefore, that the trial court erred in granting summary judgment to the defendants.

     Gayle v. Gonyea, No. 01-0218, 313 F.3d 677 (2nd Cir. 2002).

      »Click here to read the text of the decision on the Internet.

     •Return to the Contents  menu.

Alleged confinement of prisoner to a cell with another inmate for 23-24 hours a day, without access to work, educational, vocational, or rehabilitation programs did not violate the Eighth Amendment prohibition against cruel and unusual punishment, even if he had not committed disciplinary infractions. Rhode Island officials, however, could potentially be liable for deliberate indifference to the alleged risk to the prisoner from threats of harm by Virginia prison guards.

     A Rhode Island inmate was transferred to a Virginia state correctional facility, and he sued Rhode Island officials for his conditions of confinement.

     He claimed that he had not committed disciplinary infractions while imprisoned in that state, but nonetheless was confined to a cell with another prisoner for 23-24 hours a day, without "any opportunity to work or participate in educational, vocational, or rehabilitation programs." He also claimed that he had been denied medical, dental, and mental health care.

     The medical claims "being completely conclusory," were properly dismissed, a federal appeals court held. It also upheld the dismissal of the Eighth Amendment claim concerning the prisoner's general living conditions at the Virginia facility.

     These conditions, the court found, "even viewed in totality," fail to establish the kind of "extreme deprivation" that might violate the Eighth Amendment's prohibition on cruel and unusual punishment. "Routine discomfort" is part of the penalty inmates pay for their crimes.

     The appeals court did hold, however, that the prisoner should be allowed to proceed with his claim that Rhode Island officials were deliberately indifferent to the risk that he had and will "continue to suffer serious physical injury or death at the hands of Virginia prison guards." He claimed that when he was transferred to a super-maximum facility in Virginia, correctional officers "repeatedly and unnecessarily restrained" and "threatened" him "with injury from electroshock weapons, chemical weapons, shot-guns, and police dogs," and that he wrote to the Associate Director/Chief of Classification at the Rhode Island Department of Corrections to explain these "serious problems," but that this official declined to intervene.

     The appeals court rejected the trial court's ruling that the prisoner's only recourse was against Virginia prison authorities, which was apparently the basis of its dismissal of claims against the Rhode Island official concerning this. The prisoner's Rhode Island conviction "gave this state custody over him until he was legally discharged or had served his sentence," the court stated. It was Rhode Island that had arranged for him to serve a portion of his sentence in Virginia, and if he was subjected to unconstitutional conditions of confinement in Virginia on a continuing basis and "Rhode Island knows of these conditions but refuses to relocate" him, then Rhode Island officials might be held responsible.

     The court therefore ordered further proceedings on this claim, but also noted:

We recognize that [the prisoner] has offered only marginally defensible allegations. Guns, chemical spray and even guard dogs are employed at prisons; and conclusory or unspecific references to "threats," "unreasonable" behavior by guards, and unspecified physical or mental harm may be viewed with some skepticism, especially when buried in a "kitchen sink" complaint. The district court is entitled to make [the prisoner] specify in detail the underlying factual allegations before proceeding with this claim.

     Figueroa v. Dinitto, #02-1428, 52 Fed. Appx. 522 (1st Cir. 2002).

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

     •Return to the Contents  menu.

Federal appeals court rules that prisoner pursuing claims against Louisiana correctional officials and employees for inadequacies in his medical treatment had to exhaust available administrative remedies, despite recent decision by the Louisiana Supreme Court finding the state's prison grievance system unconstitutional in part, since that system nevertheless remained in place.

     A Louisiana prisoner filed a federal civil rights lawsuit against the state Department of Corrections and various employees, asserting deprivations of his right to medical treatment in violation of the Eighth Amendment. His claims arose from allegedly faulty treatment he received at a detention center after a corneal transplant, and he asserted that the defendant's actions had resulted in his near blindness.

     The plaintiff prisoner also asserted that he declined to file prison grievance complaints because his blindness exempted him from the procedures, the prison had not posted a grievance policy, and a recent decision of the Louisiana Supreme Court had ruled that the state grievance procedure was unconstitutional, citing Pope v. State, 792 So.2d 713 (La. 2001). [PDF]. He contended that this excused him from the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust "available" administrative remedies prior to pursuing litigation, arguing that these three factors resulting in no administrative remedies being actually "available."

     A federal appeals court rejected all of these arguments. The federal court concluded that, although Pope  held Louisiana's statutory prison grievance system unconstitutional "to the extent that it purported to deprive state courts of original jurisdiction over prisoner cases," it did not "obliterate the prison grievance remedy." The Louisiana Supreme Court found that because La. Rev. Stat. Sec. 15:1177 confined judicial review in state court to the administrative record only, permitting review only of issues raised at the agency level, and limits the grounds for reversal, the state trial courts "have been deprived of original jurisdiction in violation of La. Const. Art. V, Sec. 16(A)." The decision therefore held that the state statutory scheme pertaining to prison administrative procedures were unconstitutional "to the extent that the statutes are applied to tort actions."

     The federal court also acknowledged that, following Pope, an intermediate Louisiana appellate court had held that prisoners no longer needed to exhaust prison administrative remedies before filing lawsuits for recovery for injuries in state court. Creppel v. Dixon Corr. Inst., 822 So. 2d 769 (La. App. 1st Cir. 2002). [PDF]

     The prisoner, however, "is proceeding in federal, not state court, and his claim is procedurally governed by federal law." Under the PLRA, the court held, all "available" remedies must be exhausted, "regardless of the nature of the relief offered." It "remains to be seen," the court reasoned, whether Pope will "be held to declare the entire prison administrative grievance system which had been in effect since 1985, unconstitutional." The Louisiana Supreme Court decision only address the "impact on the constitutional jurisdiction of the Louisiana state courts of that aspect of the grievance system that purported to determine the evidentiary weight of the results of the grievance proceedings and the nature of post-exhaustion judicial proceedings."

     This, the court reasoned, was a different issue from whether the "mere existence of the administrative grievance system is constitutional and whether the legislature may require a prisoner's exhaustion of administrative remedies" prior to filing suit even in state court. Additionally, the decision and state court rulings following it have "no impact on the necessity of exhaustion prior to the filing of a Sec. 1983 claim in federal court."

     As long as a prison administrative grievance system "remains in force," the plaintiff prisoner must exhaust it prior to pursuing a claim in federal court, the court held.

     The federal appeals court was also unimpressed with the prisoner's argument that he should be excused from the exhaustion requirement because he is blind, noting that his "alleged blindness" clearly did not prevent him from filing his federal civil rights lawsuit, from appealing a disciplinary hearing, or from filing prison grievances after his transfer to another facility, as reflected by the record.

     As for his argument that he should be excused from the exhaustion requirement because the detention center did not post a grievance procedure, the court found this irrelevant as "he never attempted to utilize the procedure and was well aware of the general procedural requirements described in the inmate handbook."

     The appeals court therefore upheld the trial court's dismissal, without prejudice, of the prisoner's lawsuit for failure to exhaust administrative remedies.

     Ferrington v. Louisiana Dept. of Corrections, #02-30256, 315 F.3d 529 (5th Cir. 2002).

    »Click here to read the text of the decision on the Internet.

     •Return to the Contents  menu.

Past prison officials failed to protect inmates from violence by other prisoners, creating an excessive risk to prisoner safety, as demonstrated by evidence of inadequate supervision and training of subordinates in how to investigate and abate dangerous conditions, and failing to discipline "malfeasant" employees. While successor officials instituted new policies, this did not make the prisoners' claims for injunctive and declaratory relief moot.

     A class action lawsuit on behalf of prisoners at a Wyoming State Penitentiary claimed that prison officials failed to reasonably protect them from assault by other inmates.

     Examining evidence of a variety of incidents, the federal trial court found that there was sufficient evidence to show that prior prison officials had failed to adequately supervisor and train subordinates in how to investigate and abate dangerous conditions. In six years, there were "between one hundred and three hundred inmate assaults" at the prison, but only three investigations, "all revealing serious institutional deficiencies and staff error." There was testimony that there was repeated violation of a policy in failing to conduct investigations in the "overwhelming majority of serious incidents." One defendant even admitted that the "practice of ignoring the regulation has overruled the policy."

     There was also evidence of failure to develop an effective internal review process for the reporting of policy violations, which the plaintiffs argued amounted to a "code of silence" regarding staff wrongdoing in connection with inmate-on-inmate assaults. The trial court agreed that there had been an effective "code of silence" adopted by the administration of the prison, which "prevents supervisors from discovering and abating dangerous prison conditions," amounting to "deliberate indifference" to the risk of prisoner assaults.

     Additionally, the court found, there was testimony by some of the defendants admitting that "no officer has been disciplined" for violating any prison policy involving inmate assaults. In one investigation report that was filed, four officers were identified who had violated the half-hourly walk-through policy in connection with the murder of an inmate by other prisoners. None of these officers were disciplined, despite an admission by one defendant that all four of these officers as well as their supervisors should have been disciplined. This failure to discipline, the court found, also amounted to deliberate indifference.

     The Court can only conclude that Defendant prison officials have failed to protect prisoners, and particularly Plaintiff [the named Plaintiff in the class action] from violence at the hands of other prisoners, and that such officials have demonstrated deliberate indifference to serious and excessive risks to the health and safety of the inmates of [the prison], all of which is contrary to the protection afforded them under the Eighth Amendment to our Constitution.

     The court rejected the argument that the lawsuit's claims for injunctive and declaratory relief were moot because successors to two Defendants "have instituted new policies and that Plaintiff cannot show a likelihood of a continuing violation, which is necessary for declaratory and injunctive relief." Voluntary cessation of allegedly illegal conduct, the court stated, does not deprive the court of the power to hear and determine the case, i.e., make it moot. The burden is on the defendant to demonstrate that there is "no reasonable expectation that the wrong will be repeated," and the defendants "in this case clearly have not met this heavy burden."

     The court ordered both the plaintiff and defendants to file proposed remedial plans with the court which, when implemented, would remedy the noted Eighth Amendment violations, following which the court would fashion an appropriate order. It granted summary judgment to the plaintiff on the asserted Eighth Amendment claims.

     Skinner v. Uphoff, 234 F. Supp. 2d 1208 (D. Wyoming 2002).

     »Click here to read the text of the decision on the Internet.

     •Return to the Contents  menu.

Even if officer's actions in punching a handcuffed prisoner could be considered "inappropriate," federal appeals court states, his alleged single punch to the prisoner's shoulder to avoid being spit on was a minimal use of physical force which did not violate the prisoner's Eighth Amendment rights.

     A New Jersey prisoner sued a correctional officer, contending that he engaged in an excessive use of force in punching him in the shoulder while he was handcuffed. The prisoner was confined, at the time, in a "behavioral adjustment unit" in the disciplinary block of a county jail, the "most restricted unit in the jail," where prisoners spend 23 hours a day in single occupancy cells and exercise for one hour a day in the prison yard.

     For the safety of officers and prisoners, these prisoners are handcuffed from behind whenever officers move them outside of their cells. The plaintiff prisoner was in this unit because he and his brother, also a prisoner in the jail, had assaulted an officer as part of an escape attempt. As a result of this, this particular prisoner was required to exercise alone, his cell was searches daily for weapons, and he was accompanied by two officers whenever he went out of his cell.

     On the day of the incident in question, one of the officers had previously told the prisoner that if he spit on him, he was "going down." Upon arrival at the cell in returning from exercise, the prisoner turned towards this officer and pursued his lips as if to spit on him. In response, the officer struck the prisoner's right shoulder. The prisoner claims that this was a punch, while the officer stated that he merely made contact with an open hand. After the incident, the prisoner was put back in his cell. He requested to see the nurse for shoulder swelling, and she gave him pills to take, determining that the shoulder would be "sore for a few days." 

     Upholding summary judgment in favor of the defendant correctional officer, a federal appeals court noted that the plaintiff prisoner admitted to attempting to spit on the officer and provoked the officer by attempting to do so. The purpose of the officer's reaction was to avoid being spit on, and the resulting injury was "minor and temporary." The appeals court quoted approvingly the trial court's comment that it "certainly is unreasonable and would undermine institutional discipline to expect a corrections officer to simply allow himself to be spit upon."

     The appeals court rejected the argument that punching a handcuffed prisoner "can never be an acceptable use of force." Regardless of whether or not the officer's action was "appropriate," the court stated, there is no constitutional violation for a minimal use of physical force, "provided that the use of force is not of a sort repugnant to the conscience of mankind."

     The appeals court also found that the degree of injury was a factor that could be taken into account in granting summary judgment. Under the circumstances of the case, there could be no reasonable inference that the officer "unnecessarily and wantonly inflicted pain on" the prisoner or acted "maliciously or sadistically to cause him harm." 

     Reyes v. Chinnici, #01-2142, 54 Fed. Appx. 44 (3rd Cir. 2002).

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

     •Return to the Contents  menu.

Federal jury awards $1.75 million to the family of county jail detainee who hung himself after telling jail medical workers that he was suicidal. Jury award imposes liability on company that contracted with county to provide medical services at facility, as well as against social worker. County settled claims against it for $60,000 prior to trial.

     An Illinois federal jury awarded $1.75 million to the family of a man who hung himself in the Lake County, Illinois county jail. Prior to his death he allegedly had manifested symptoms of bipolar disorder as well as severe depression and had directly expressed to medical workers that he was feeling suicidal. The prisoner also had cerebral palsy and had a history that showed approximately ten prior hospitalizations in psychiatric facilities, as well as prior time in jail on arson charges involving setting a fire to a couch in his stepfather's apartment.

     The jury's award was made against a private company that contracted with the county to provide medical care at the facility, as well as a social worker who was involved in an intake interview for the prisoner. The award included $250,000 in compensatory damages and $1.5 million in punitive damages. The award of punitive damages was solely against the company, while both defendants were found responsible for the compensatory damages.

     While the county had originally been a defendant in the lawsuit, it settled claims directly against it for $60,000 prior to the beginning of the three-week trial. A jail correctional technician also reached a $60,000 settlement, while the jury found in favor of two additional defendants, a psychiatrist and a nurse.

     The decedent, who was 23, hanged himself with a bedsheet approximately 2-1/2 weeks after he was incarcerated on charges of aggravated criminal sexual abuse and armed assault. Written documents, including the intake summary, the social worker evaluation, and a psychiatric evaluation introduced into evidence all indicated that the prisoner complained about being suicidal, but he was not placed on suicide watch.

     The defendants argued that those evaluating the prisoner did not believe that he was actually suicidal and noted that a correctional officer had checked on the inmate nine minutes before he was found dead.

     Woodward v. Correctional Medical Services, No. 00C6010, U.S. District Ct. N.D. Ill., Feb. 24, 2003, reported in Chicago Tribune, Sec. 2, page 3 (Feb. 25, 2003) and Chicago Daily Law Bulletin, p. 3 (Feb. 25, 2003).

     »Click here to read the case's docket entries on the AELE website.

     •Return to the Contents  menu.

The fact that a city's policy on monitoring suicidal pre-trial detainees allowed the clerk doing so to perform other duties at the same time did not, by itself, demonstrate deliberate indifference to the risk of harm, nor did the fact that the video equipment used for monitoring in this particular instance turned out to be defective.

     A pretrial detainee in a city detention facility, along with his mother, sued the city and its chief of police seeking damages resulting from his suicide attempt after he was incarcerated while intoxicated. He claimed that the city had a policy of deliberate indifference to the risk of harm to suicidal detainees.

     The claims in the lawsuit focused on the fact that the city's policy on monitoring detainees believed to be suicidal allowed the clerk doing the monitoring, through the use of video equipment, to perform other duties at the same time, rather than focusing all his constant attention on the monitoring, and on the fact that the particular equipment used to monitor this plaintiff detainee's cell turned out to be defective and had a history of problems.

     A federal appeals court upheld summary judgment for the defendants. It found that the records clerk's failure to intervene in a more timely fashion to the suicide attempt did not show deliberate indifference. There was no evidence that the jail officials had considered and rejected other "more effective" measures of suicide prevention or that there was any pattern of past suicide attempts which would demonstrate that the measures taken would not work.

     Further, despite the fact that there were problems with the video equipment used, the city had repeatedly repaired the monitor in question in responding to complaints about it, and the monitor "still functioned adequately" in order for the clerk to observe "most signs of distress."

     Finally, while the clerk doing the monitoring allegedly was "untrained," this did not create any "great and obvious" risk of harm or show the city's indifference, when the city did have a practice that clerks were alerted to those detainees believed to be at risk for suicide or of the need for continuous monitoring. In the case of this detainee, the records clerk was in fact told to "keep a careful eye on him," because he was suicidal.

     Indeed, the clerk did switch the channel of the monitor to look at the detainee's cell in time to see him hanging by his neck, and immediately called for help, so that a passing officer was inside his cell within a minute trying to revive him. The detainee survived, but suffered brain damage.

     Serafin v. City of Johnstown, #02-1281, 53 Fed. Appx. 211 (3rd Cir. 2002).

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

     •Return to the Contents  menu.

Federal appeals court rejects correctional officials' multiple constitutional attacks on federal statute establishing restrictive test for the imposition of burdens on prisoner religious practices, holding that Congress did not exceed its powers under the spending clause of the Constitution, or violate the establishment of religion clause of the First Amendment, the rights of the states under the Tenth Amendment, the immunity of the states under the Eleventh Amendment, or the doctrine of separation of powers.

     California state prison officials filed an appeal in federal court asserting facial challenges to the constitutionality of a federal statute, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc et seq. (RLUIPA) on a variety of grounds. The appeal arose in the context of a series of preliminary injunctions issued by the trial court under the RLUIPA, which allowed Muslim prisoners to attend Friday afternoon religious services.

     The statute reimposed on correctional institutions a burden of showing that restrictions on prisoners' religious freedoms are justified by a "compelling" governmental interest is unconstitutional as an "establishment of religion" under the First Amendment. It was passed by Congress in reaction to the U.S. Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997) striking down the Religious Freedom Restoration Act (RFRA) as unconstitutional as applied to the states because it exceeded Congress's powers under Sec. 5 of the Fourteenth Amendment.

     The RLUIPA, therefore, avoided Sec. 5 of the Fourteenth Amendment as the source of its authority to act, instead relying on the Spending Power and the Commerce Clause of the U.S. Constitution. Under RLUIPA, as under the RFRA, the test applicable to a correctional institution's attempt to take action that imposes a burden on a prisoner's exercise of religious freedom is:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

     This is a much heavier burden than is usually required to uphold correctional policies or practices which must only be rationally related to a legitimate penological interest.

     The state correctional officials, in the trial court, moved to dismiss the RLUIPA claim, arguing that the statute exceeded Congressional authority under the Spending Clause, the Commerce Clause, and the Fourteenth Amendment. They also attacked the statute as violative of the Establishment Clause of the First Amendment, the Tenth and Eleventh Amendments, and the principal of separation of powers. The U.S. government intervened in the case to defend RLUIPA as constitutional. The trial court rejected these motions to dismiss, and granted the plaintiff prisoners various preliminary injunctions barring prison officials from punishing prisoners for attending Jumu'ah prayer services on Fridays and prohibiting officials from withholding good time credits from inmates who did so while the case proceeds.

     The federal appeals court has also rejected each of the arguments that California correctional officials raised against the enforceability and constitutionality of the statute.

     The court held that Congress did not exceed its power under the Spending Clause to further policy objectives by conditioning the receipt of federal funds on compliance with federal mandates, including, in this case, compliance with the designated legal standard for prisoners' religious rights. It noted that Congress has "great leeway" to determine which statutory aims "advance the general welfare," and that "protection religious worship in institutions from substantial and illegitimate burdens does promote the general welfare."

     The court also found that the statute's conditions did "bear some relationship to the purpose of the federal spending," since "Congress has a strong interest in making certain that federal funds do not subsidize conduct that infringes individual liberties, such as the free practice of one's religion."

     The appeals court rejected the argument that Congress violated the Establishment of Religion clause of the First Amendment in enacting the statute, as recently held by  Madison v. Riter, 2003 U.S. Dist. Lexis 1094 (W.D. Va.) (which accepted the argument that the statute "established" religion by giving it preference over other individual liberties, such as free speech, by imposing more stringent protections only for religious liberty).

     The Ninth Circuit found that the "primary effect" of the statute "neither advances nor inhibits religion," since it does not "impose affirmative duties on states that would require them to facilitate or subsidize the exercise of religion," but rather merely forbids them from "imposing impermissible burdens on religious worship so that prisoners may practice their religion free from unlawful interference." Unlike the court in Madison, the appeals court found that there was no Establishment Clause violation just because the statute "seeks to lift burdens on religious worship in institutions without affording corresponding protection to secular activities or to non-religious prisoners." RLUIPA, the court held, "merely accommodates and protects the free exercise of religion, which the Constitution allows."

     Rejecting the argument that the statute somehow "usurps" the regulation of a "core state function" in violation of the Tenth Amendment (reserving to the states or the people those powers not expressly delegated to the federal government), the court acknowledged that "the prosecution and punishment of crime remains a basic police power," but found that the RLUIPA "does not regulate the operation of prisons." Under the RLUIPA, the court stated, "prison officials remain free to run their prisons as they see fit," but are prohibited from "unduly burdening inmates' free exercise of religion in the process." While Congress may not have the authority to "commandeer the management of state prisons," it does have the power to fix the terms upon which its allotments of money will be disbursed.

     "If states disagree with the requirements of RLUIPA," the court reasoned, "they remain free to forgo federal funding and opt out of its mandates." The court noted, in a footnote, that federal funding "comprises less than one percent of California's annual prison operating budget."

     The appeals court rejected the argument that the plaintiff prisoners' lawsuit against California state prison officials under RLUIPA was barred by Eleventh Amendment immunity. The Eleventh Amendment, the court found, prohibits lawsuits against the state itself. "This case, by contrast, involves a suit by citizens of California against officials of the state of California for prospective injunctive relief," and therefore "falls squarely within the Ex Parte Young exception to sovereign immunity and does not violate the Eleventh Amendment."

     Finally, the appeals court rejected the argument that the statute violates the principal of separation of powers. The correctional officials had argued that Congress, in passing the statute, was attempting to interfere with U.S. Supreme Court decisions interpreting the requirements of the First Amendment in the area of religion. The appeals court found that the RLUIPA "does not erroneously review or revise a specific ruling of the Supreme Court because the statute does not overturn the Court's constitutional interpretation," but rather "provides additional protection for religious worship," respecting that the Court's decisions "set only a constitutional floor--not a ceiling--for the protection of personal liberty." Indeed, the court found that the U.S. Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990), which held that laws of general applicability that incidentally burden religious conduct do not offend the First Amendment, "explicitly left heightened legislative protection for religious worship to the political branches."

     Mayweathers v. Newland, #0-16505, 314 F.3d 1062 (9th Cir. 2002).

     »Click here to read the text of the decision on the Internet. [PDF]

     •Return to the Contents  menu.

Requiring a prisoner to answer questions about particular past sexual offenses which he might still be prosecuted for would violate his Fifth Amendment right to be free from compelled self-incrimination, and he could not be denied good time and work credits for refusal to answer such questions in the course of a sex offenders' treatment program, but he also could not avoid participating in and cooperating with an otherwise non-incriminating treatment program merely because he asserted this privilege to answering some questions.

     A New Jersey prisoner convicted of several sexual offenses, including sexual offenses involving minors appealed a decision of the Department of Corrections which deprived him of commutation ("good time") and work credits for his failure to participate in or fully cooperate with a required sex offenders' treatment program. Among other claims, he asserted that the treatment program compelled his self-incrimination in violation of the Fifth Amendment of the U.S. Constitution.

    This, he argued, was the case because the treatment program may require an inmate to disclose information about crimes for which he may be prosecuted, upon penalty of loss of institutional credits for good time and work. A New Jersey reviewing court agreed with this claim, and ruled that, without providing some kind of use immunity for information provided in the treatment program about prior crimes, the state could not compel incriminating disclosures "at the expense of loss of freedom through a longer prison term."

     At the same time, the court also held that the prisoner could not avoid participating in and cooperating with an otherwise non-incriminatory treatment program for sexual offenders simply because he had a claim of privilege which could be asserted to avoid answering particular questions or supplying particular information.

     The court noted that the state Department of Corrections assured it that the inmate could "opt out" of answering questions about the particulars of past unprosecuted crimes, such as the ages of victims, what the prisoner did, when the offenses occurred.

     Bender v. New Jersey Dept. of Corrections, 812 A.2d 1154 (N.J. Super. A.D. 2003).

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

     •Return to the Contents  menu.

Delaware state prison officials were not entitled to qualified immunity from claims that inmate's Eighth Amendment rights were violated by exposure to environmental tobacco smoke that created current serious medical needs as well as posing an unreasonable risk of future harm. The right not to be exposed to such risks was "clearly established."

     A blind diabetic prisoner in a Delaware state correctional facility, while formerly a one-pack-per-day smoker, had quit in 1995 after receiving surgery for a pituitary disorder. He subsequently filed a federal civil rights lawsuit against state correctional officials, claiming that from November 1998 until November 1999, he was subjected to cruel and unusual punishment in violation of the Eighth Amendment by exposure to high-levels of second-hand smoke, which forced him to endure severe allergic reactions to the smoke and posed an unreasonable risk of future harm to his health.

     The prisoner claimed that during a seven-month incarceration at one facility, he shared a cell with two inmates, both of whom smoked "constantly" while in the cell. He then shared another cell with a constant smoker for six weeks, and later had a cellmate who smoked ten cigarettes per day, as well as experiencing other exposure to smoking cellmates on various occasions.

     Shortly after being exposed to this second-hand smoke, and suffering symptoms from it, he allegedly complained to the medical staff and a correctional sergeant. He states that a nurse who treated him responded that she was unable to transfer him to a cell with a nonsmoking roommate. He further claims that while the sergeant did move him to a smoke-free area, another correctional officer later returned him to a smoking environment, and he then wrote letters to various officials, but that the exposure to smoking did not end.

     His current symptoms included nausea, an inability to eat, headaches, chest pains, difficulty breathing, numbness in his limbs, teary eyes, itching, burning skin, dizziness, a sore throat, coughing and production of sputum, according to his complaint. Additionally, a pulmonary specialist who examined him concluded that there was a "reasonable medical probability" that these symptoms were "precipitated by second-hand smoke." Another prison physician, however, disputed this, and contended that the symptoms arose from "seasonal allergies." An expert for the plaintiff prisoner stated that for the prisoner "to continue in a smoke filled cell would increase his risk of death or non-fatal heart attack or stroke."

     The plaintiff also claimed that he was subjected to various retaliation for his complaints about second-hand smoke, including placement in administrative segregation, reading of his personal mail over the prison's intercom system, derogatory remarks about his blindness, denial of recreation, and threats of physical retaliation for having filed his lawsuit, along with a purported physical attack later investigated by the FBI, and an additional strip search "for no reason."

     A federal appeals court rejected the argument that defendant officials were entitled to qualified immunity in the lawsuit. It found that the prisoner's rights to be free of unreasonable exposure to second-hand smoke which caused current injury, or which constituted an unreasonable risk of future harm to his health was "clearly established." The court also found that the facts alleged stated a possible claim for unlawful retaliation against the plaintiff prisoner for filing a civil rights lawsuit against the defendants.

     The appeals court noted that it was expressing no view as to whether the prisoner would ultimately be able to establish either the objective or subjective elements of his claims concerning his exposure to second-hand tobacco smoke. There were genuine disputed issues of fact as to what caused his current symptoms, based on conflicting medical opinions, and disputes as to whether particular officials were subjectively aware of the risk to the plaintiff and deliberately indifferent to it.

     A strong dissent by one judge on the three-judge panel disagreed with the majority's ruling on whether the officials were entitled to qualified immunity "after housing an inmate in a prison where he is exposed to second-hand smoke, causing discomfort somewhere between that of hay fever and the common cold." This judge says that the majority mistakenly stated that the law on the subject was "clearly established," meaning that a "reasonable prison official should have known that we would decide the case this way, even though the circuit courts have reached numerous differing results on this issue and there is no controlling precedent."

     Atkinson v. Taylor, #01-3565, 316 F.3d 2257 (3rd Cir. 2003).

     »Click here to read the text of the decision on the Internet. [PDF]

     •Return to the Contents  menu.

Male prisoner's Eighth Amendment rights were not violated by his being restrained naked on a table for two days and being videotaped and observed by female prison personnel after he provoked a violent disturbance. Prisoner had been stripped to ensure that he did not possess contraband or a weapon, and had himself removed a blanket which prison personnel attempted to use to cover him. Use of stun gun earlier to control prisoner was not excessive.

     A team of five to six prison guards forcibly extracted a Pennsylvania prisoner from his cell, where he had been exhibiting erratic and threatening behavior. He was handcuffed and led by the guards towards an observation cell. On the way, he placed his feet against a door and pushed off, causing the group to stumble off balance, and the prisoner himself either fell or was pushed to the floor. While he was on the ground, one of the officers applied an EBID (Electronic Barring Immobilization Device) or stun gun to the prisoner at least once.

     After the officers regained control of the prisoner, he was carried to the observation cell, where he was strip searched and, while still naked, placed on a bed and put into a four points restraint, with each limb strapped down. A blanket was draped over him, but at some point it either was removed or fell off. The prisoner alleged that he was left in this state--tied down, without clothing or food-for two days. These events were videotaped, and the prison employees responsible for observing the prisoner included a female.

     The prisoner filed a federal civil rights lawsuit claiming that the officers used excessive force against him, and that the conditions of his restraint violated his Eighth and Fourteenth Amendment rights. A federal appeals court rejected all of these claims.

     The brief use of the stun gun and other force used during a twenty second confrontation when the prisoner refused to walk through a doorway and therefore created a confrontation was not excessive but reasonably necessary to regain control of the prisoner, the court stated.

     As for the prisoner being restrained naked for two days, and observed by a female officer, the court found that the actions did not violate his rights, as he was not denied the "minimal civilized measure of life's necessities." The court found that the evidence showed that he was fed. His clothing was not removed, as the prisoner contended, for purposes of humiliation, but instead for the purpose of ensuring that he did not possession contraband or a weapon. "He was shackled to ensure his safety, as well as that of the guards and medical personnel examining him.

     "Most significantly," the court stated, the magistrate judge, who watched the videotape of the incident, found that the prisoner himself had removed the blanket that prison employees had used to cover him. Accordingly, his "prolonged nakedness was the result of his own actions." And his "arguments are exposure while videotaped and in the presence of female prison personnel cannot overcome the factual record, which demonstrates that the indignities he complains of were not inflicted by the defendants."

     Because the plaintiff prisoner did not prove any misconduct by subordinate prison employees, "he necessarily cannot establish supervisory liability on the part of those responsible for the policies under which he was detained in the observation cell." 

     Camp v. Brennan, #02-2003, 54 Fed. Appx. 78 (3rd Cir. 2002).

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

     •Return to the Contents  menu.

Administrative Liability

     Prisoner failed to state a claim against the Michigan Dept. of Corrections Director for interference with his right of access to the courts or for the loss of his property, when he failed to show that the director had any direct involvement in these alleged deprivations. The defendant's "supervisory capacity does not make him liable for the alleged deprivations by an unspecified prison official." Sarr v. Martin, #02-1639, 53 Fed. Appx. 760 (6th Cir. 2002).

Defenses: Procedural

     County prison officials whose lawyer did not file a response to inmate's claims concerning alleged deprivation of his medication were entitled to set aside the default against them when the prisoner did not show that doing so would result in any prejudice, or that the lawyer's failure was willful or in bad faith. The lawyer did act to set aside the default within seven days and the defendant officials appeared to have asserted meritorious affirmative defenses. Jackson v. Delaware County, 211 F.R.D. 282 (E.D. Pa. 2002).

Inmate Funds

     Colorado Restitution Act, C.R.S.A. Sec. 16-18.5-106, allowed state correctional officials to withhold funds from prisoner's account to pay victim compensation costs, victim assistance surcharges imposed as part of sentence for sexual assault, and court costs, even though the sentence was imposed before the effective date of the statute, since it stated that it applied to all "delinquencies of orders" existing on or after the effective date. Court finds no ex post factor violation. People of the State of Colorado v. Lowe, #01CA1876, 60 P.3d 753 (Colo. App. 2002).

Mail

     Pennsylvania State Department of Corrections policy which barred inmate receipt of incoming publications found by a committee of employees to contain obscene materials did not violate prisoners' rights under free speech guarantees of the Pennsylvania state Constitution, Article 1, sec. 7, since there is no constitutional protection for obscene materials. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002).

Medical Care

     Inmate who contracted hepatitis C in prison's segregation unit did not show that state prison officials were deliberately indifferent to his medical needs. Their directive on addressing hepatitis C did not suggest denying treatment, and the plaintiff was, in fact, treated for the disease. Additionally, there was no evidence that those who wrote the directive were aware of the presence of the human waste in the unit from which the plaintiff claimed he had contracted the illness. Outlaw v. Ridley-Turner, #02-2545, 54 Fed. Appx. 229 (7th Cir. 2002).

Prison Litigation Reform Act -- Attorneys' Fees

     A state training school for juveniles constituted a "correctional facility" under provisions of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d)(1)(A), limiting the awards of attorneys' fees in cases challenging prison conditions of confinement to those directly and reasonably incurred in "proving an actual violation" of protected rights. Class of juvenile inmates was not a "prevailing party" entitled to $376,637.48 award of attorneys' fees and costs under 42 U.S.C. Sec. 1988 when the court order approving a settlement of the claims incorporated none of the specific terms and conditions agreed upon by the parties. Christina A. v. Bloomberg, #01-3698, 315 F. 3d 990 (8th Cir. 2003). [PDF]

Prison Litigation Reform Act -- Exhaustion of Remedies

     Federal prisoner's civil rights claims concerning alleged confiscation of his wheelchair and destruction of his leg braces, along with discontinuation of his physical therapy following transfer to a new facility, were properly dismissed for failure to exhaust available administrative remedies. Prisoner submitted requests for administrative remedies to warden and then sent new requests to Regional Director instead of submitting appeals to the Regional Director, and no appeals were ever made to the Director of National Inmate Appeals. Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2401(b) claims not filed within 6 months of receiving notice of administrative agency denial were time barred. Smith v. U.S., #02-1172, 53 Fed. Appx. 514 (10th Cir. 2002).

     Prisoner who bypassed the first two levels of administrative review of his grievances concerning conditions of confinement and declined to submit to their review after the regional prison official at the third level returned his complaint failed to exhaust available administrative remedies as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. The fact that the prisoner believed that pursuing his grievances at the local level would have been futile did not alter the result. Jeanes v. U.S. Depart. of Justice, 231 F. Supp. 2d 48 (D.D.C. 2002).

Prison Litigation Reform Act -- Filing Fees

     A prisoner who was allowed under the Prison Litigation Reform Act, (PLRA), 28 U.S.C. Sec. 1915(a)(1), (b)(1,2) to make installment payments on litigation filing fees had no obligation to pay the remaining balance of the fee upon his release from prison. The released prisoners' obligations, if any, to pay filing fees would be determined by the general legal rules about proceeding as a pauper, not the special terms imposed on prisoners under the PLRA. DeBlasio v. Gilmore, #01-7025, 315 F.3d 396 (4th Cir. 2003).

Prison Litigation Reform Act -- Similar State Laws

     Sections of the Pennsylvania state Prison Litigation Reform Act, 42 Pa. C.S.A. Sec. 6602(a-c) which absolutely protected inmates from litigating without paying a filing fee was an invalid legislative infringement of the state Supreme Court's exclusive right to prescribe rules of practice and procedure for the courts. Court upholds, however, Sec. 6605(a) requiring that findings of fact be made before entering injunctive orders in prison conditions litigation. Payne v. Com. Dept. of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002).

Prison Litigation Reform Act -- "Three Strikes" Rule

     Provisions of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), prohibiting prisoners with three "strikes" (three lawsuits previously dismissed as frivolous or failing to state a cause of action) from proceeding as a pauper with further litigation unless a prisoner is at imminent risk of serious harm, was not "jurisdictional" in nature, but rather required the payment of filing fees before the court can review the merits of the "three-strikes" prisoner's claims. Further, the appeals court had "some discretion" to hear an appeal without the payment of the fees. In this case, however, the court would dismiss the prisoner's complaint for failure to prosecute if he did not pay the filing fees. Dubic v. Johnson, #01-5122, 314 F.3d 1205 (10th Cir. 2003).

     Prisoner who had filed three previous lawsuits dismissed as frivolous could not pursue additional litigation as a pauper, but instead had to pay the required filing fee before proceeding with his lawsuit claiming that his rights were violated when a correctional officer asked him, in front of other prisoners, to supply the names of inmates engaged in selling drugs at the prison. Butler v. U.S., #01-6447, 53 Fed. Appx. 748 (6th Cir. 2002).

Prison Rules & Regulations

     New York prison's disciplinary rule prohibiting inmates from physically or verbally obstructing or harassing prison employees was not unconstitutionally vague, since a reasonable person would conclude that the prisoner's action in throwing a liquid substance on a corrections officer, even if it was only water, was prohibited. Mitchell v. Fischer, 752 N.Y.S.2d 97 (A.D. 2002).

Prisoner Assault: By Inmates

     Plaintiff prisoner did not show that officials were deliberately indifferent to his safety, since they did place him in administrative segregation in order to protect him from possible assault by other prisoners seeking to harm him because he had been incarcerated for sexual offenses. Additionally, the attack on him was carried out by a prisoner who was under escort and in restraints at the time, also indicating an effort to protect the plaintiff's safety. Carter v. Padilla, No. 02-2196, 54 Fed. Appx. 292 (10th Cir. 2002).

Prisoner Death/Injury

     Prisoners' claims that they had been injured by exposure to lead and asbestos while on a prison work detail involved a "continuing" harm, and the prisoners adequately complied with a state law notice of claim requirement when they provided notice within six months of the date that they discovered their exposure to the hazard, even if it first took place years earlier. City of Forsyth v. Bell, No. A02A2069, 574 S.E.2d 331 (Ga. App. 2002).

     Prisoner who claimed that a correction officer kicked the bottom of his chair, causing him to fall and be injured did not succeed in showing negligence required to establish liability, especially since prisoner was leaning back in the chair with the front legs 16-18 inches off the ground before he fell. Sturgill v. Ohio Dept. of Rehabilitation and Correction, #2001-08595, 782 N.E.2d 169 (Ohio Ct. Claims 2002).

     Utah inmate's slip and fall on a soapy shower floor in county jail, resulting in injuries, did not demonstrate the kind of excessive risk or substantial deprivation of the minimum civilized measure of life's necessities so as to constitute cruel and unusual punishment under the Eighth Amendment. Flandro v. Salt Lake County Jail, #01-4168, 53 Fed. Appx. 499 (10th Cir. 2002).

Prisoner Discipline

     Disciplinary determination against a prisoner which occurred 15 days after the writing of an inmate misbehavior report was not untimely under a New York administrative regulation when the 14th day after the report was written fell on a Sunday, so that the grant of an extension of time on the 15th day was ok. Faison v. Goord, 751 N.Y.S. 2d 224 (A.D. 2002).

Prisoner Transfer

     Prisoner did not have a constitutionally protected liberty interest in being housed in a particular facility, and therefore could not pursue a federal civil rights claim over his transfer to a high security prison and placement in administrative confinement there, even if this placement arguably violated state law. Moore v. Litscher, #02-1461, 52 Fed. Appx. 861 (7th Cir. 2002).

Religion

     Prison officials were not shown to have any knowledge that a non-prisoner was a Nation of Islam prisoner's spiritual advisor, entitling them to qualified immunity over the claim that they violated federal civil rights by preventing him and the prisoner from communicating. Proctor v. Toney, #02-2788, 53 Fed. Appx. 793 (8th Cir. 2002).

     Muslim prisoner's exclusion for two months from group religious services did not violate his First Amendment rights when the prisoner and chaplain had a disagreement about religious doctrines and the only other alternative to his exclusion would have been providing more security to ensure order at services. Plaintiff prisoner had alternative means of exercising his religious beliefs during the period in question, including individual prayer and study of religious literature. Allah v. Al-Hafeez, 208 F. Supp. 2d 520 (E.D.Pa. 2002).

Sexual Offender Programs

     The withholding of a prisoner's good time credits on the basis of his refusal to participate in a sex offender program did not violate his rights despite the fact that the crime he was convicted of was not one involving sexual misconduct. An unchallenged pre-sentence report showed that he had, in fact, performed sexual acts with two children, and the burglary he was convicted of involved the residence of the children he was accused of molesting. Boster v. Goord, 752 N.Y.S.2d 403 (A.D. 2002).

Smoking

     Prisoner's claim for injunctive relief against unreasonable exposure to second-hand tobacco smoke was not moot, even though he had been transferred to another housing block and the prison had implemented a restrictive smoking policy. The plaintiff was housed in a cell block without individual cell windows and the prisoner claimed that the new policy was not actually being enforced. Davis v. New York, #01-0118, 316 F.3d 93 (2nd Cir. 2002).

     Prisoner stated an 8th Amendment claim for unreasonable exposure to second-hand tobacco smoke when he asserted that the exposure continued for about six weeks and that the defendant officials were deliberately indifferent to the risk this could have to his health. Sanders v. Kingston, #02-2541, 53 Fed. Appx. 781 (7th Cir. 2002).

Work/Education Programs

     A union officer had standing, under California state law, to sue the state as a taxpayer to make it ensure that a joint venture company employing prisoners paid them "prevailing wages" when they were employed under a statute, Ann. Cal. Penal. Code Sec. 2717.1 et seq., requiring them to work to reimburse the state for the cost of their confinement. Vasquez v. State of California, #D038889, 129 Cal. Rptr. 2d 701 (Cal. App. 4th Dist. 2003). [PDF]

       AELE's list of recently-noted jail and prisoner law resources.

     Article: Hempel, A.G., Kownacki, R., Malin, D.H., Ozone, S.J., Cormack, T.S., Sandoval, B.G., & Leinbach, A.E., "Effect of a total smoking ban in a maximum security psychiatric hospital," Behavioral Sciences and the Law 20, pgs. 507-522. The article discusses a study of the impact of the imposition of a smoking ban on 140 prisoners in a maximum-security psychiatric hospital and planning and preparing for implementation of such a policy.

     Report: Research Report, Implementing Telemedicine in Correctional Facilities by Peter L. Nacci, C. Allan Turner, Ronald J. Waldron, and Eddie Broyles, May 2002. In the late 1990s, an independent evaluation of an experiment determined that providing long-distance health care to inmates is feasible through a system called telemedicine. This system uses telecommunications equipment that allows health care providers to see and diagnose inmates in prisons located far from health care providers' offices. The experiment showed that prisons could improve inmate health care by providing remote access to more medical specialists while reducing prisoner transport costs and related security management costs. This report provides a model for estimating the relative costs of telemedicine under varying conditions in a correctional setting. With the information tools provided in this document, the correctional administrator will be able to determine if telemedicine is a cost-effective option. (pdf format).

     Report: I–ADAM in Eight Countries: Approaches and Challenges by Bruce Taylor. Published: May 2002. This publication is primarily a progress report on the implementation of the International Arrestee Drug Abuse Monitoring (I-ADAM) program in eight countries and on the challenges they faced. Although some research findings are presented, the principal purpose of this report is to describe the experiences of the countries as they engaged in the process of launching I-ADAM, which is an outgrowth and extension of the Arrestee Drug Abuse Monitoring (ADAM) program, developed and operated by the National Institute of Justice, U.S. Department of Justice. ADAM tracks trends in the prevalence and types of hardcore drug use--such as cocaine, heroin, marijuana, and methamphetamine--among booked arrestees. (pdf format).

     Standard: NIJ Standard, Walk-Through Metal Detectors for Use in Concealed Weapon and Contraband Detection: NIJ Standard–0601.02, January 2003. This NIJ Standard describes performance requirements and testing methods for active walk-through metal detectors used to find metal weapons and metal concealed contraband carried on a person and/or concealed by a nonmetal object. The report can be used by purchasing agents and procurement officials in determining whether an owned or prospective product meets the requirements of the standard and can serve as the basis for tests conducted by qualified testing laboratories and as a reference in procurement documents. It also contains definitions to help readers use and understand the information and provides field-testing procedures for and mechanical drawings of several potentially dangerous test objects. This Standard supersedes NIJ Standard–0601.01 published in 2000. (.pdf format)

     Videos: Police Response to People with Disabilities. Produced by: Law Enforcement Resource Center, 1523 Nicollet Ave., Minneapolis, MN 55403, 800-279-8284 Website: http://www.lerc.com/ Mental Illness: Police Response. Produced by NAMI (National Alliance for the Mentally Ill) in cooperation with the Police Executive Research Forum, 508-875-1544. NAMI website: http://www.nami.org/ PERF website: http://www.policeforum.org/

     Websites: Disabilities: 1). Commonly Asked Questions About the ADA and Law Enforcement http://www.usdoj.gov/crt/ada/q&a_law.htm 2). US Dept of Justice ADA homepage http://www.usdoj.gov/crt/ada/adahom1.htm  3). Commonly Asked Questions About Title II of the ADA for state and local govts - http://www.usdoj.gov/crt/ada/pubs/t2qa.txt

     Link: Selected resources in past issues.