FEATURED CASES

WITH LINKS TO THE OPINIONS

•••• EDITOR'S CASE ALERT ••••

Iowa prisoners found to have adequately shown that prison policy barring their communications with other inmates serving as "jailhouse lawyers" resulted in actual injury to their pending post-conviction proceedings as required for purposes of First Amendment claim of denial of right of access to the courts.

     State of Iowa prison officials appealed a federal trial court's grant of a preliminary injunction permitting four inmates at a state penitentiary to communicate with other prisoners serving as "jailhouse lawyers," and to use a discontinued method of inmate-to-inmate legal correspondence known at the prison as the "red star system," pending the trial of the plaintiffs' claims that a new, more restrictive policy deprived them of effective access to the courts.

     Prior to July 1, 2001, officials at the Iowa State Penitentiary (ISP) permitted inmates to provide legal services to each other, and maintained the "red star system" to facilitate correspondence between the prisoners, which involved screening and delivering legal mail within the facility. On July 1, 2001, a new policy was adopted banning inmates from providing legal services to other prisoners and eliminating the "red star system," and directing prisoners to instead seek legal assistance from a private attorney under contract with the ISP.

     Upholding the preliminary injunction, a federal appeals court found that the plaintiff prisoners' testimony that they currently have post-conviction proceedings pending or planned, that they did not have the skill or knowledge to pursue their claims on their own, and that they either were currently receiving effective legal assistance from other prisoners or sought to do so satisfied the legal requirements, at least for purposes of a preliminary injunction, of demonstrating "actual injury" to their right of access to the courts.

     On appeal, the defendant prison officials argued that the plaintiffs had not shown an irreparable injury because three of them had appointed lawyers for their pending habeas cases, and that the trial court's preliminary injunction was an "excessive intrusion upon the public interest in the orderly and secure running of the prison system."

     In rejecting these arguments, the appeals court agreed that there is no absolute First Amendment right to communicate with other inmates about legal or other matters. But the plaintiffs in this case have alleged that the prison "has imposed a total ban on all inmate legal communications, and they presented evidence that they have no satisfactory alternative way of obtaining needed legal assistance to pursue specific post-conviction claims." Additionally, "and even more important," the court stated, the defendants "introduced no evidence justifying the new policy" under the differential Turner v. Safley, 482 U.S. 78 (1987) standards (ruling that a prison regulation limiting correspondence between inmates at other correctional institutions is "valid if it is reasonably related to legitimate penological interests."), despite the Supreme Court's "repeated caution that inmates do have First Amendment rights and therefore free speech restrictions must be justified by legitimate penological concerns."

     The appeals court noted that the defendants "presented no testimony or documentary evidence" at the summary judgment hearing, and that one of the plaintiffs testified at that hearing that the "contract" attorney provided by the defendants "has a conflict of interest," while another testified that he "tried unsuccessfully for one year to meet with that attorney," and a third testified that the attorney in question "knew nothing about criminal law and was unable to provide research assistance, conduct investigations, or file papers."

     The appeals court noted that there is "no one prescribed method of ensuring inmate access to the courts," and that a prison system "may experiment with prison libraries, jailhouse lawyers, private lawyers on contract with the prison, or some combination of these and other devices, so long as there is no actual harm to the access rights of particular inmates."  On the record presented, the court concluded, the trial court did not abuse its discretion in granting a limited preliminary injunction in favor of the four plaintiffs pending trial.

     Bear v. Kautzky, #01-3462, 305 F.3d 802 (8th Cir. 2002).

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Mother of prisoner who died of AIDS could not pursue claim for injunctive relief since the decedent was no longer incarcerated, and failed to adequately allege that the defendant medical personnel knowingly acted with deliberate indifference to the medical needs of the decedent and other prisoners with AIDS.

     A prisoner in a Puerto Rico jail complained of malaise, loss of appetite, fatigue and fever. He was diagnosed as having Hepatitis C with symptoms that corresponded to the initial manifestations of AIDS. Allegedly, no follow-up or special treatment was ordered, although he was told to return to the health care providers in one month. Several months later, he tested positive for the HIV virus, but once again, no follow up or special treatment was allegedly provided. Approximately a month later, he was transferred to a hospital where he was diagnosed as being "acutely sick" and having AIDS. He was given medications. Several days later, he died.

     The prisoner's mother filed a federal civil rights lawsuit against the director of the correctional health division and the medical director of the university hospital where the inmate was transferred, alleging deliberate indifference to his medical needs in violation of the Eighth Amendment.

     The federal trial court ruled that the plaintiff's claim for injunctive relief did not present a "case or controversy," since the prisoner was no longer incarcerated, having died of AIDS. The court also ruled that the plaintiff failed to state a claim for damages against the defendants in their individual capacities, in the absence of any allegation that they knew of and acted with deliberate indifference to inadequate treatment for the decedent and other AIDS patients who were incarcerated.

     The court found that the complaint stated a claim, at most, for negligence under local law, and not a claim for a violation of federal civil rights. The court also stated that it believed that the defect of the complaint, which failed to allege that the defendants "disregarded a known harm" in their treatment of the patient could possibly be cured by amendment of the complaint, but noted that the plaintiff had already previously amended the complaint three times, and had still not been able to "adequately plea an Eighth Amendment violation." The court ruled that this was ample opportunity to amend the complaint, and dismissed it.

     Pubill-Rivera v. Curet, 218 F. Supp. 2d 89 (D. Puerto Rico).

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Correctional officers who reported, in good faith, seeing a prisoner indecently expose his genitals in a public area of the prison were entitled to qualified immunity against convicted rapist's federal civil rights lawsuit against them, filed after his disciplinary conviction was overturned on appeal because of damage to the audiotape of the hearing.

     A Virginia prisoner serving a 50-year sentence for rape and forcible sodomy was allegedly observed by two correctional officers exposing his genitals in a public area of the prison so that other individuals present, guards and inmates, would take notice of his behavior. Two of the officers present filed a major offense violation against the prisoner for indecent exposure. The prisoner had 35 prior convictions for this offense on his prison record.

     After a hearing in front of a hearings officer, the prisoner was again convicted. He appealed the conviction, however, and when the Regional Director tried to listen to the audiotape of the proceedings to determine the appeal, he discovered that the tape was damaged, so he believed he had no other choice but to expunge the charge and incident from the prisoner's record. Once this occurred, the prisoner filed a lawsuit against the two officers for "defamation, slander and libel, conspiracy, cruel and unusual punishment, and lying and giving false information," seeking money damages for violation of federal civil rights. He also sued the hearings officer.

     A federal trial court found that all three of the defendants were entitled to qualified immunity and dismissed the lawsuit. The court noted that all the two witness officers did was testify to the best of their recollection about an incident they saw. While the conviction of the prisoner was "overturned on technical grounds," there was "not even a hint of proof anywhere in the record" that the officers testified falsely or out of a motive to maliciously harm the "integrity of the Plaintiff."

     Instead, the officers were "merely living up to their duty as correctional officers to report a violation of prison policy by an inmate." A correctional officer "testifying in good faith at an administrative prison proceeding as to his or her belief about what took place involving an inmate is not something a reasonable officer would understand to violate a federal right," so the two witness officers were entitled to qualified immunity. The court also granted qualified immunity to another officer who reported similar subsequent behavior by the prisoner.

     While the prisoner also claimed that the hearings officer violated his rights by directing a testifying officer not to answer several of the prisoner's questions that he deemed to be "profane and inappropriate," the court noted that any alleged "taint" to the hearing was "likely remedied" by the dismissal and expungement of the indecent exposure charge after the tape of the hearing was found to be defective. Further, however, the hearings officer was entitled to qualified immunity.

     A hearing of the type he was conducting, including the examination of witnesses, should be "conducted in a professional manner" and only address "germane subjects." If a person examining a witness "strays into inappropriate questioning, it is his duty to return the proceeding to proper order and decorum." For such a hearing officer to, in good faith, direct a witness not to answer a question deemed inappropriate is "not acting in such a manner that a reasonable officer would understand to violate a federal right," the court concluded.

     Sand v. Steele, 218 F. Supp. 2d 788 (E.D. Va. 2002).

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Placing a prison on a restricted "food loaf" diet after he was disciplined for his sexual misconduct of masturbating with butter did not violate his due process rights. "Food loaf" had been shown to meet nutritional and caloric requirements for human beings and prisoner's argument that it caused his hemorrhoids to bleed days after the restriction expired was mere "speculation."

     A Michigan prisoner was placed on a restriction of food loaf after he was disciplined for a sexual misconduct for "masturbating with butter." The prisoner sued a number of prison officials, seeking both injunctive relief and money damages, arguing that the restriction violated his rights under the Eighth and Fourteenth Amendments.

     Rejecting these arguments, a federal appeals court ruled that being fed food loaf "does not implicate a due process liberty interest" under the Fourteenth Amendment because it is not an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

     The appeals court further found that the Eighth Amendment cruel and unusual punishment argument was also properly rejected, based on a failure to show "unnecessary and wanton infliction of pain or deliberate indifference" to the prisoner's needs. "A diet of food loaf," the court commented, "has been shown" to meet the "nutritional and caloric requirements for humans." While the prisoner claimed that healthcare personnel should not have approved the restriction due to his "stomach problems," the court noted that "none of the healthcare personnel is a defendant in this action."

     Additionally, the prisoner "has only speculated that the temporary food loaf diet caused his hemorrhoids to bleed more than ten days after the food loaf restriction had elapsed."

     Griffis v. Gundy, #02-1449, 47 Fed. Appx. 327 (6th Cir. 2002).

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Prisoner could pursue his claim that correctional officials retaliated against him for his participation in African/African American Cultural Coalition and his pursuit of grievances and lawsuits, even if he had no independent constitutional right relating to the complained of specific deprivations. Prisoner failed, however, to show that defendants' motives were retaliatory or used excessive force against him.

     An Illinois prisoner claimed that prison officials violated his First Amendment rights by engaging in various retaliatory actions against him for his role as a founding member of an African/African American Cultural Coalition and his pursuit of various grievances and lawsuits. He also claimed that three guards used excessive force in subduing him. The alleged deprivations including cell assignments, prison jobs, visitation, and an unwanted transfer.

     A federal appeals court rejected the argument that the prisoner's lawsuit was barred by Heck v. Humphrey, 512 U.S. 477 (1994) (no federal civil rights claim may be pursued that, if successful, would necessarily imply the invalidity of a conviction that has not been overturned) because he was seeking to have his disciplinary convictions overturned. It found that the retaliation claim would be precluded only to the extent it would imply the invalidity of disciplinary convictions which resulted in loss of good-time credits, and not when the civil rights claim could not implicate "the fact or duration of confinement." Similarly, the excessive force claim was not barred by Heck simply because he received a disciplinary conviction for the incident.

     Additionally, the appeals court rejected the argument that a retaliation claim is without merit just because the plaintiff had no independent constitutional right relating to cell assignments, prison jobs, visitation, and transfer. What the plaintiff alleged is that the defendants punished him for exercising his First Amendment rights, and whether he "enjoyed a liberty or property interest in the privilege at issue is irrelevant."

     Finally, however, the appeals court found that the prisoner's claims properly did not survive the defendants' motion for summary judgment. The trial court struck the plaintiff prisoner's 40-page affidavit because it was "not based on personal knowledge." The appeals court found that this was proper.

     While the plaintiff may have "possessed personal knowledge of some of the events discussed, his statements relating to the retaliation and excessive-force claims constitute nothing more than conjecture about the defendants' intentions and motives," it stated. "Affidavits, even from pro se litigants, must be based on personal knowledge and relate admissible facts."

    In the absence of the plaintiff's statement, there was no evidence that the defendants harbored a retaliatory motive "absent which" he would not have received the disciplinary reports, unfavorable cell assignments, and transfer, and would have received the prison jobs and visitation privileges. There was also no evidence that the force used against him was applied "maliciously and sadistically to cause harm" rather than in a "good faith effort to maintain or restore discipline."

     Cunningham v. O'Leary, #00-3729, 40 Fed. Appx. 232 (7th Cir. 2002).

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Diabetic prisoner could pursue his claim that failure to eat meals after administration of insulin injections could cause pain and stress to his body and brain to the point of unconsciousness and coma, in violation of the Eighth Amendment. Federal appeals court also rules that prisoner's alleged failure to exhaust available administrative remedies is an "affirmative defense" which may be waived or forfeited by a defendant.

     A Pennsylvania prisoner who is an insulin dependent diabetic filed a federal civil rights lawsuit claiming that it violated his Eighth Amendment rights not to be able to eat meals directly after the administrative of insulin injections. He contended that the failure to eat after such shots resulted in low blood-sugar levels which were dangerous and could cause so much pain and stress to his body and brain that he could reach the point of unconsciousness and coma.

     The trial court granted summary judgment for the defendant prison officials. Evidence showed that a defendant correctional officer had, on over forty occasions, refused to let the prisoner out of his cell to receive meals after receiving insulin injections, and that the prisoner had experienced "lightheadedness and headaches." The trial court concluded that this showed that the plaintiff prisoner was not in danger of irreparable injury, and denied injunctive relief.

     The trial court's grant of summary judgment came after it rejected an offer of testimony from a nurse experienced in treating diabetes who submitted an affidavit verifying that the prisoner had low blood-sugar levels which were dangerous and that the failure to eat meals after his injections could "cause much pain and stress to the body and brain even to the point of unconsciousness and coma."

     Reversing, a federal appeals court found that the nurse's affidavit and offered testimony created a genuine issue of material fact as to whether the failure to eat following the plaintiff's insulin injections were as dangerous as he argued, creating a constitutionally significant injury to support an Eighth Amendment claim for deliberate indifference to his serious medical needs. The court also stated that portions of the prisoner's medical claims as to various medical facts about hypoglycemia, nutrition, diabetes and insulin treatment may warrant judicial notice under Rule 201 of the Federal Rules of Evidence.

     In rejecting arguments that the complaint should be dismissed for the prisoner's alleged failure to exhaust available administrative remedies, the appeals court held that the failure to exhaust administrative remedies as required by 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act (PLRA) is an "affirmative defense that must be plead and proved (and may be waived or forfeited)." The appeals court ruled that the trial court should also address, on remand, the full factual and legal issues concerning exhaustion.

     McCargo v. Guelich, #99-3017, 47 Fed. Appx. 96 (3rd Cir. 2002).

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Prisoner failed to show that his injury from assault by another prisoner was caused by the facility's cell assignment policy of allowing inmates to choose their own cellmates. Prisoner had previously shared his cell with his alleged attacker without prior incident and did not inform correctional employees that he had any dispute with cellmate or feared any harm from him.

     A pretrial detainee in an Indiana county jail was attacked by another inmate and lost an eye as a result. He filed a lawsuit against the jail and its officers, claiming that his injury was caused by the facility's cell assignment policy in violation of his constitutional right to due process.

     The trial court granted summary judgment to the defendants, and a federal appeals court has now upheld that result.

     The evidence showed that the plaintiff was assigned to a cellblock originally designed to house ten prisoners but which actually housed seventeen. The facility's policy allowed prisoners to choose their own cell assignments, and the plaintiff shared his cell with another prisoner. After bunking with him for approximately two weeks without incident, a new inmate arrived in the cellblock who belonged to the same gang as the cellmate. The plaintiff prisoner was "neutral," i.e., not affiliated with any gang.

     When the plaintiff returned to his cell that evening, he allegedly found his cellmate throwing his possessions out of their shared cell and into the common area. The plaintiff and his cellmate had a bit of a fight, and then the plaintiff relocated himself to another cell, while the cellmate's fellow gang member took his original bunk. The plaintiff and his former cellmate then shook hands, which appeared to signal the end of the conflict.

     Later that evening, the plaintiff was allegedly attacked from behind by his former cellmate, who then hit him in the eye with a "sock jack," a weapon made of soap bars wrapped into a sock. Other inmates intervened to break it up, and called guards, who took the plaintiff to the hospital, where doctors determined that the damage to his eye was irreparable and removed it.

     The appeals court noted that guards at the facility had no idea that the attack was coming, and that the plaintiff had, prior to that day, lived with his cellmate for over two weeks without incident. In the absence of specific knowledge of the likelihood of the attack, it could not be said that they acted with deliberate indifference to the risk of harm to the plaintiff.

     And, while the plaintiff presented an expert who stated that allowing inmates to choose their own bunks created a "high probability of inmate-on-inmate assault," this was insufficient to show that the cell assignment policy was the cause of this specific attack.

     The court acknowledged that there could, under some circumstances, be risks that were so obvious that "actual knowledge on the part of prison officials may be inferred," such as when a "substantial risk of inmate attacks was long-standing, pervasive, well-documented, or expressly noted by prison officials in the past." That was not the case here. There was no evidence suggesting that violence was a "pervasive element" of the jail's environment or that there was any increased risk of violence at the jail compared to other jails with different housing policies. 

     Washington v. LaPorte County Sheriff's Department, #01-3812, 306 F.3d 515 (7th Cir. 2002).

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Federal appeals court orders new trial on damages following jury's award of $750,000 in compensatory and $750,000 in punitive damages to prisoner who claimed prison guards beat him in his cell and later, resulting in months of wheelchair confinement. Trial judge improperly told jury that they could award damages for mental or emotional distress when the plaintiff prisoner had said he was not seeking any.

     A Louisiana prisoner, acting as his own lawyer, sued four prison guards for alleged violation of his civil rights. He claimed that he was beaten in his cell by three of the guards repeatedly because he had refused to drop a lawsuit against one of them and an administrative complaint against another. He also claimed that, later that day, one of the defendants beat him with his fist while he was in the back seat of a patrol vehicle on his way to the hospital.

     Evidence from the prisoner's treating physician included testimony that he suffered fractures to both ankles, one of which required surgery, and an assortment of lesser injuries to other parts of the body, and had to be confined to a wheelchair for two and a half months. The jury awarded $750,000 in compensatory damages and $750,000 in punitive damages, for a total award of $1.5 million.

     Ordering a new trial on damages, a federal appeals court noted that the plaintiff prisoner, at trial, explicitly disclaimed any intention to seek damages for mental anguish or emotional distress. Despite this, the trial judge told the jury that, in addition to damages for bodily injury, it could award damages for "pain and suffering and/or mental anguish that the plaintiff experienced in the past or will experience in the future as a result of the injury. No evidence of the value of intangible things, such as mental or physical pain has been or need be introduced."

     The defendants' attorney objected this language, noting that the plaintiff himself "stated, quite affirmatively, that he had no claims for mental pain and suffering and mental anguish."

     The appeals court ruled that the jury "could not have been properly guided in its deliberations if the court instructed it to consider possible damages for mental anguish despite the plaintiff's own denial that he was seeking any such damages." The appeals court further found that the likelihood that the jury was "improperly influenced" by the instructions is "exacerbated by the court's statements that the jury could consider future as well as past and present anguish," and that the plaintiff was not required to give any estimate of the value of intangible items, including mental distress.

     Since the jury's award of damages was not "itemized," it was impossible to determine what sum, if any, it awarded for mental anguish, which would permit the appeals court to reduce the total award by that amount, requiring a new trial on compensatory damages. Since punitive damages must "bear a 'reasonable relationship' to compensatory damages," the appeals court noted, this also required that the new trial address the issue of punitive damages also.

     Poullard v. Turner, #01-30587, 298 F.3d 421 (5th Cir. 2002).

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Prisoner could not pursue lawsuit for damages against correctional officers he claimed attacked him without provocation when he had not previously overturned disciplinary violations for assault and battery against the officers arising from the same incident.

     A Michigan state prisoner claimed that he had been assaulted by several prison guards in 1999. His lawsuit was based on the assertion that the defendants attacked him without provocation and that he had not resisted or fought against them.

     Upholding dismissal of the lawsuit, a federal appeals court noted that the plaintiff had been charged with two misconduct violations for assault and battery based on allegations that he had knocked one of the defendant officers backwards and kicked another in the chest during the same incident. He was found guilty of both charges and sanctioned with sixty days of detention.

     The appeals court ruled that the trial judge had properly found that the prisoner could not relitigate the primary issues of provocation and resistance, as he had been convicted of misconduct violations for assaulting the defendants. A favorable ruling on his claims "would undermine the validity of his misconduct convictions," and he had not shown that these convictions had been previously overturned, as required prior to pursuing a federal civil rights claim. See Edwards v. Balisok, 520 U.S. 641 (1997).

     Hinton v. Hansen, #9201447, 47 Fed. Appx. 325 (6th Cir. 2002).

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New York State could not be held liable for a prisoner's injuries while using an allegedly defective exercise machine at a correctional facility in the absence of any proof that there was actual or constructive knowledge of the defect which would have provided an opportunity to repair it.

     A prisoner at a New York state correctional facility sought recovery from the state for injuries he claimed he suffered from a malfunction of an exercise machine that he was using while incarcerated. The machine in question was a weightlifting "squat" machine made available for inmate use, and he contended that a component of the machine slipped, cutting him on his right leg.

     A recreation program leader at the facility testified on behalf of the State, and stated that the exercise machines there are inspected on a daily basis, and that there were no prior complaints or incidents involving this particular machine prior to, or subsequent to, the claimant's accident.

     The New York Court of Claims acknowledged that, as a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition, and that this obligation extends to correctional facilities.

     "Defendant is not, however, an insurer, and negligence may not be inferred solely from the happening of an accident," but must involve proof that the Defendant "breached a duty of care owed to the claimant and that the breach of duty proximately caused the claimant's injury."

     In this case, there was no evidence that the machine in question was defective in any way. Additionally, even if the plaintiff could prove that it was defective, he failed to show that the State had any knowledge, actual or constructive, of a defective condition so that it would have had an opportunity to repair it." The inspection policy revealed by testimony appeared to be reasonable and "no visible or apparent defects had been noticed prior to the accident." 

     Valentine v. State of New York, Claim No. 98679, 747 N.Y.S.2d 282 (N.Y. Ct. Cl. 2002).

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Drivers' license examiner's alleged conduct of forcing female inmate in work release program to have sex with him in exchange for special privileges, and under threat of being removed from the program, violated clearly established Eighth Amendment law and was sufficiently outrageous to support a claim for intentional infliction of emotional distress under Oklahoma state law.

     A former inmate of an Oklahoma correctional facility claimed that while she was on work release at a state drivers' license examination center an examiner forced her to have sex with him on numerous occasions. She sought damages for violation of her federal civil rights and specifically for cruel and unusual punishment in violation of the Eighth Amendment.

     Rejecting the defendant's motion for summary judgment on the basis of qualified immunity, the trial court found that he had acted "under color of state law" for purposes of a federal civil rights lawsuit, and that it violated clearly established law for him to allegedly force her to have non-consensual sex with him in exchange for increased privileges. These privileges included expanded use of the telephone, visitors, shopping, and family visits. He allegedly transported her to the homes of friends and family and to go shopping, in violation of work release rules. He allegedly threatened that if she did not have sexual intercourse with him and perform fellatio on him, that she would lose her special privileges and be removed from the work release program.

     The court noted that the work release contract gave the examiner control of the prisoner, that she was not free to leave while she was on work release, and that she could be subject to punishment if she disobeyed his commands. The court also found that the alleged conduct was sufficiently "outrageous" and "egregious" to support a claim under state law for intentional infliction of emotional distress.

     Smith v. Cochran, 216 F. Supp. 2d 1286 (N.D. Okla. 2002).

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•••• EDITOR'S CASE ALERT ••••

Pretrial detainee did not have a constitutionally protected liberty interest in telephone usage on the basis of Alaska state statute, and restrictions that were imposed by state jail on his telephone access did not violate his due process or First Amendment rights.

     A federal pretrial detainee held in an Alaska state pretrial facility under an agreement between the state and the U.S. Marshal Service filed a lawsuit, after his conviction, against an Assistant U.S. Attorney and various Alaska state officials and facility administrators, alleging that they had imposed unlawful restrictions on his telephone access during the four-and-a-half months of his pretrial detention. He claimed violations of his First and Fourteenth Amendment rights.

     A federal appeals court has upheld the trial court's grant of summary judgment to all of the defendants, finding no violations of the detainee's rights.

     While in detention, the pretrial detainee, accused of being the leader of a drug smuggling conspiracy, was initially placed in the jail's general population, where he shared access to four telephones. After a month, however, the Assistant U.S. Attorney sent a letter to the U.S. Marshal requesting that the detainee's telephone access be suspended because five new defendants were about to be indicted, none of whom were in custody. It was argued that allowing him telephone access might result in a danger to those seeking to execute arrest warrants on these suspects.

     In response, the state officials placed the detainee in administrative segregation, where he was not permitted to make or receive any telephone calls except one a day with his attorney. In order to call his attorney, he also had to submit a written request (he was, however, permitted to confer with his attorney in person at the jail and to receive in-person visits by friends and family). The phone restrictions were continued for approximately four-and-a-half months, during which several of the fugitives sought were arrested. The Assistant U.S. Attorney had the phone restrictions lifted as "moot" after one of the other co-defendants was released on bail.

     The federal appeals court rejected the argument that an Alaska state statute created a constitutionally protected liberty interest in telephone access. Alaska Stat. Sec. 33.30.231(a), the court noted, merely provides for "reasonable access" to a telephone, and gives prison officials discretion to determine what is reasonable access under the circumstances. This did not mandate a particular result or give any prisoner a "due process" constitutional right to telephone access.

     The court also found that, under the circumstances, the defendants had a legitimate interest in restricting his use of the telephone in light of the fact that his co-conspirators were still at large and had recently been indicted. The court was "further persuaded" that the defendants acted "without punitive intent" because the restriction was "only in place for a short time and only for as long as it served its stated purpose."

     As for the prisoner's First Amendment claim, the court noted that the use of a telephone only provides one means of exercising this right, and the plaintiff had adequate opportunities to communicate by the receipt of visitors, the sending and receiving of mail, and the ability to communicate daily with his attorney both in person and by telephone. Allowing him telephone access in an unrestricted manner would have required the defendants to allocate additional resources to monitor his telephone conversations to ensure that he did not 'try to tip off his cohorts." Accordingly, there was no violation of the First Amendment.

     Valdez v. Rosenbaum, #01-35300, 302 F.3d 1039 (9th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

U.S. Supreme Court to review constitutionality of Michigan prison regulations banning visits from inmate's minor relatives and former prisoners who are not family members. Federal appeals court struck down regulations as applied to non-contact visits.

     The U.S. Supreme Court will review whether a federal appeals court correctly decided that Michigan Department of Correction's regulations concerning non-contact visitors violated the First Amendment rights of prisoners to associate with others.

     In 1995, Michigan's Department of Corrections issued new regulations limiting who can visit prisoners. The regulations challenged by the plaintiffs (1) banned visits from prisoners' minor brothers, sisters, nieces and nephews; (2) banned all visits by prisoners' children when parental rights had been terminated; (3) banned all visits by former prisoners who are not immediate family; (4) required that visiting children be accompanied by a parent or legal guardian, and (5) permanently banned visitors, apart from attorneys and clergy, for prisoners who twice violated the department's drug abuse policies.

     The new regulations were a response to growth in Michigan's prison population in the early 1990s and the resulting increase in the number of visitors. Department officials believed the increase in visitors made supervising visits more difficult and smuggling of drugs and weapons more difficult to stop. Officials also decided that the increased number of visiting children was a problem because it was difficult for prison guards to supervise children and because the prison environment was bad for the children.

     In 1995, plaintiffs challenged the new regulations, asserting they violated plaintiffs' First, Eighth, and Fourteenth Amendment rights. The department defended the constitutionality of the regulations, arguing they were only applied to contact visits, to which prisoners have no absolute right. The appeals court upheld the regulations as they applied to contact visits, stating that "there is no inherent, absolute right to contact visits with prisoners," Bazzetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997), but did not address whether prisoners have a right to non-contact visits. See Bazzetta v. McGinnis, 133 F.3d 382, 383 (6th Cir. 1998).

     The appeals court subsequently concluded that the Department of Corrections "seriously misled us and was applying the regulations to all visits, contact and non-contact." In renewed litigation, the plaintiff prisoners challenged the regulations only as applied to non-contact visitors who communicate with prisoners by phone and view them through glass walls.

     Finding that the regulations, at least as applied to non-contact visitors, violated the prisoners' rights, the appeals court stated:

Under our constitution, even those lawfully imprisoned for serious crimes retain some basic constitutional rights. Instead of crafting policies that would legitimately meet the very real need to maintain order in prisons, the department has implemented a series of haphazard policies that violated these rights and did real harm to inmates in its care. It then defended these policies not with reasoned arguments, but with misdirection and demands that federal courts blindly defer to corrections officials. Prison officials have great leeway to govern prisons and prisoners as they see fit, if they can provide even a modicum of proof that a particular policy is desirable and serves legitimate ends. Here, as [....] found in the case below, the department was unable to offer any convincing justification for its policies.

     The court held that the regulations violated the prisoners' First Amendment right of association as applied to non-contact visits from prisoners' minor siblings, nieces, and nephews, children of prisoners whose parental rights have been terminated, and former prisoners who are not members of prisoner's family and that regulations that ban visitors, aside from attorneys and clergy, for prisoners who have twice violated the department's drug abuse policies violates both the right of association and the Eighth Amendment's prohibition of cruel and unusual punishment.

     On December 2, 2002, the U.S. Supreme Court granted review of the case to address the questions:

(1) Do prisoners have right to non-contact visitation protected by First and 14th Amendments? (2) Are restrictions on non-contact prison visitation imposed by Michigan Department of Corrections reasonably related to legitimate penological interests? (3) Do restrictions on non-contact prison visitation imposed by Michigan Department of Corrections constitute cruel and unusual punishment in violation of Eighth Amendment?

     A report of the U.S. Supreme Court's decision will appear in this publication after it is rendered.

     Bazzetta v. McGinnis, #01-1635, 286 F.3d 311 (6th Cir. 2002), cert. granted sub nom., Overton v. Bazzetta, #02-94, 71 U.S.L.W. 3387 (12/02/2002).

     EDITOR'S NOTE: In seeking review of the case, the State of Michigan was joined by eleven other states (Alabama, Colorado, Idaho, Indiana, Mississippi, Nebraska, Nevada, New Hampshire, Oklahoma, South Dakota, and Texas) in asserting that the rules should be reinstated. The U.S. Supreme Court's last major decision on prison visitation was Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989) (Upholding Kentucky's prison visitation rules and ruling that prison visitation regulations do not give inmate a due process liberty interest unless they utilize "explicitly mandatory language.").

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

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Access to Courts/Legal Info

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

     Trial court abused its discretion in refusing to appoint a lawyer to represent an inmate who had a claim of arguable merit concerning the adequacy of his medical treatment for HIV and heart conditions and where "numerous technical rulings" against plaintiff showed that he had "significant difficulty" in advancing his case in the absence of legal representation. Montgomery v. Pinchak, No. 99-5081, 294 F.3d 492 (3rd Cir. 2002). [PDF].

     Dismissal of prisoner's claim that prison library was inadequate and violative of his right of access to the courts as frivolous was proper when the prisoner had no right to pursue state tort claims or medical malpractice claims as federal civil rights lawsuits as he sought to do, and when one of his other federal civil rights claims was dismissed as frivolous. The sole remaining lawsuit which was the basis for his claim suffered no prejudice. Thomas v. Rochell, #02-5189, 47 Fed. Appx. 315 (6th Cir. 2002).

AIDS Related

     Federal Bureau of Prisons (BOP) could not be sued under 42 U.S.C. Sec. 1983 for alleged inadequate treatment of HIV-positive inmate housed in correctional facility under contract with the District of Columbia since the BOP did not act under "color of state law," and prisoner's general assertion that D.C. employees provided him inadequate medical care "pursuant to the policy, custom, and practice of the District of Columbia Department of Corrections" was insufficient to show a D.C. policy without any factual support. Private corporation that contracted with the District to operate correctional facility could only be liable for a violation of the Eighth Amendment on the basis of a showing of an official policy or custom of either the corporation or the District. Gabriel v. Corrections Corporation of America, 211 F. Supp. 2d 132 (D.D.C. 2002).

Defenses: Qualified Immunity

     Law concerning a prisoner's claim that he was retaliated against by prison officials in retaliation for his exercise of his First Amendment rights was not clearly established in the Sixth Circuit prior to that court's decision in Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc). Defendant prison officials were therefore entitled to qualified immunity. Williams v. Ollis, No. 01-2460, 42 Fed. Appx. 694 (6th Cir. 2002).

Insurance

     Mississippi county's immunity from wrongful death lawsuit brought over death of mentally ill detainee incarcerated in county jail while awaiting involuntary commitment proceeding was waived under state law to the extent of the monetary limits of the liability insurance policy purchased by the county. Boston v. Hartford Accident and Indemnity Company, #2000-CA-00968-SCT, 822 So. 2d 239 (Miss. 2002).

Medical Care

     Prisoner did not claim that the alleged ignoring of his requests for medical attention at county jail was caused by a county policy or custom, so that he could not pursue a federal civil rights claim against the county. Watson v. Gill, No. 01-6249, 40 Fed. Appx. 88 (6th Cir. 2002).

     Doctor who made a correct diagnosis of prisoner's hand injury and doctor who prescribed oral antibiotics by telephone were not deliberately indifferent to the prisoner's medical needs but there were genuine material facts as to whether other medical personnel were deliberately indifferent to and left untreated prisoner's subsequent pain. Walker v. Benjamin, #00-2769, 293 F.3d 1030 (7th Cir. 2002). [PDF]

     Prisoner's claim that county jailers and county medical personnel provided him with inadequate medical treatment for his hepatitis C was not rendered frivolous simply because of his inability to identify the defendants by name, but his complaint was still subject to dismissal without prejudice because of his failure to demonstrate that he had exhausted all available administrative remedies before filing suit. McCallum v. Gilless, #01-5897, 38 Fed. Appx. 213 (6th Cir. 2002).

Parole

     Amendment to Michigan state parole statute allowing the prosecutor or crime victim to appeal a parole decision, but not granting that right to a prisoner, M.C.L.A. Sec. 791.234, did not adversely impact on prisoner when the amendment had not taken effect at the time of his parole denial or denial of reconsideration, so he could not pursue his equal protection claim. Bickley v. Marscke, No. 01-1835, 44 Fed. Appx. 698 (6th Cir. 2002).

     Nothing in a Wisconsin statute, W.S.A. 304.02, establishing an early release program for prisoners in order to address overcrowding required the Department of Corrections to extend eligibility to prisoners who had been convicted of assaultive crimes. Ghashiyah v. Bertrand, Nos. 01-4034, 01-4195, 44 Fed. Appx. 736 (7th Cir. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner did not demonstrate exhaustion of remedies in his federal civil rights claim over alleged inadequate medical treatment when his complaint did not involve any named defendants and no documentation was provided for any of his grievances. Glenn v. Campbell, #01-6063, 40 Fed. Appx. 21 (6th Cir. 2002).

     Prisoner must show that he exhausted his available administrative remedies before filing a federal civil rights lawsuit over prison conditions, rather than while his lawsuit is pending in court. Failure to do so requires dismissal of the complaint under 42 U.S.C. Sec. 1997e(a). Mack v. DeWitt, No. 01-4163, 40 Fed. Appx. 36 (6th Cir. 2002).

     Prisoner did not adequately exhaust his available administrative remedies prior to filing suit when prison officials failed to respond to many of his grievances and did respond to one of his grievances, since prisoner could have filed a timely appeal but failed to do so. The doctrine of "substantial compliance" did not apply to the prisoner's exhaustion requirement when his cause of action accrued after the effective date of the Prison Litigation Reform Act. Lewis v. Washington, No. 00-2017, 300 F.3d 829 (7th Cir. 2002). [PDF]

Prisoner Assault: By Inmates

     Prisoner stabbed 16 times by fellow inmates and left paralyzed from the waist down receives $300,000 settlement of lawsuit claiming that jail personnel failed to implement policies requiring that he be separated from rival gang members and ignored his requests for protection. Mayoral v. Sheahan, No. 96C7249, U.S. Dist. Ct., Northern District of Illinois, Eastern Division, reported in The Chicago Daily Law Bulletin, p. 3 (November 8, 2002).

Prisoner Suicide

     Dismissal in federal court of wrongful death lawsuit brought over detainee's action of hanging himself in county jail barred relitigation of the estate's wrongful death and negligence claims in state court. Quinn v. Estate of Jones, No. 2000-CA-00977-SCT, 818 So. 2d 1148 (Miss. 2002).

Prisoner Transfer

     Prisoner had no justifiable expectation that he would be housed in any particular correctional facility and was therefore not entitled to an injunction mandating that he be moved elsewhere. No constitutional right was violated when prisoner was placed in a special housing unit after refusing to share a cell with a specific fellow prisoner. Johnson-Bey v. Ray, No. 01-3382, 38 Fed. Appx. 507 (10th Cir. 2002).

     Prisoner who requested a transfer to a United Kingdom facility to serve out the remainder of his Illinois sentence for killing a co-worker had no due process liberty interest in such a transfer under an Illinois statute, 730 ILCS 5/3-2-3.1, which provided that the Governor of the state may authorize the Director of Corrections to consent to transfers or exchanges of offenders. Rickard v. Sternes, #01-3011, 44 Fed. Appx. 738 (7th Cir. 2002).

Segregation: Administrative

     Placement of prisoner in administrative segregation while disciplinary charge was pending was not cruel and unusual punishment since it was not an "atypical and significant hardship" and had no impact on the duration of his confinement. Lynch-Bey v. Bolden, No. 02-1240, 44 Fed. Appx. 696 (6th Cir. 2002).

Strip Searches

     Misdemeanor arrestees were entitled to a preliminary injunction and class certification in their lawsuit challenging alleged county practice of routinely strip searching pre-trial detainees even in the absence of reasonable suspicion that they possessed weapons or other contraband. Even though the number of strip searches had decreased "dramatically" since the litigation began, an injunction might help prevent a return to the "old ways" after the lawsuit was completed. Dodge v. County of Orange, 209 F.R.D. 65 (S.D.N.Y. 2002).

     Article: Camp, S. D. and Gaes, G. G. (2002). Growth and Quality of U.S. Private Prisons: Evidence from a National Survey, Criminology & Public Policy, Forthcoming. [PDF]

     Article: Camp, S. D., Gaes, G. G., and Saylor, W. G. (2002). Quality of Prison Operations in the Federal Sector: A Comparison with a Private Prison. Punishment & Society, 4: 1: 27-53. [PDF]

     Proposed Rule: The Bureau of Prisons (BOP) of the U.S. Department of Justice has published proposed rules for the procedures it will follow for imposing prisoner fees for some health services, as required under the Federal Prisoner Health Care Co-payment Act of 2000. The proposed rules were published in the Federal Register, Oct. 10, 2002, pp. 63059-63060. Once finally enacted, the rules will add subpart F to the BOP's regulations in 28 CFR part 549 on medical services. The proposal is that a prisoner must pay $2.00 for medical services in connection with a visit to health care providers that they requested (with some exceptions) or, if they injure a prisoner who requests medical services as a result of the injury. Staff referred health care visits, staff-approved follow-up care for chronic conditions, preventative health care services, emergency services, prenatal medical care, mental health care, substance abuse treatment or treatment of chronic infectious diseases will not be subject to the imposition of fees under the proposed rule. An appeals procedure will be available through the BOP's Administrative Remedy Program if the prisoner disagrees with the imposition of a fee. No fees may be charged to indigent inmates who are unable to pay.

     Report: HIV in Prisons, 2000, Bureau of Justice Statistics. (10/02) NCJ 196023. This report provides the number of HIV-positive and active AIDS cases among prisoners held in each State and the Federal prison system at year-end 2000. The report provides prison data on the number of AIDS-related deaths, HIV-testing policies, a breakdown for women and men with AIDS, and comparisons to AIDS rates in the general populations. Based on the 2000 Census of State and Federal Adult Correctional Facilities, the report also provides data on the number of HIV-positive prison inmates at midyear 2000. Also presented are the 25 facilities holding the largest number of HIV-positive inmates. Highlights include the following: Between 1995 and 2000 the number of HIV-positive prisoners grew at a slower rate (3%) than the overall prison population (16%). The overall rate of confirmed AIDS among the Nation's prison population (0.52%) was about 4 times the rate in U.S. general population (0.13%). During 2000, 18 States reported a decrease in the number of HIV-positive prisoners and 29 States reported an increase.

      Report:   Prisoners in 2001, Bureau of Justice Statistics. NCJ 195189 (July 2002). This reports on the number of persons in state and federal prisons at year-end, compares the increase in the prison population during 2001 with that of the previous year, and gives the prison growth rates since 1995. It also provides the number of male and female prisoners on December 31, 2001, incarceration rates for the states, and the 10 highest and 10 lowest jurisdictions for selected characteristics, including growth rate, number of prisoners held, and incarceration rates. Tables present data on prison capacities and the use of local jails, privately operated prisons, Federal, and other State facilities to house inmates. Estimates are provided on the number of sentenced prisoners by offense, gender, race, and Hispanic origin. Highlights include the following: Between July 1, 2001, and December 31, 2001, the number of inmates under State jurisdiction declined by 3,705 inmates (down 0.3%), repeating the same pattern of decline first observed in the last 6 months of 2000. On December 31, 2001 State prisons were operating between 1% and 16% above capacity, while Federal prisons were operating at 31% above capacity. At year-end 2000, 49% of State prisoners were serving time for violent offenses, up from 46% in 1990.

     Report: Probation and Parole in the United States, 2001 (BJS) (August 2002) The total Federal, State, and local adult correctional population -- incarcerated or in the community -- grew by 147,700 during 2001 to reach a new high of nearly 6.6 million.

     Report: Reentry Trends in the United States: Inmates returning to the community after serving time in prison. Bureau of Justice Statistics. [PDF]. This new section of BJS website summarizes the latest BJS data concerning inmates returning to the community after serving time in State or Federal prison. Based on information from 12 publications and 6 data collections, this section covers trends in both State and Federal release.