FEATURED CASES

WITH LINKS TO THE OPINIONS

Prisoner's allegations that correctional officials denied him access to the law library, filed false disciplinary charges against him, and arranged to transfer him in retaliation for his actions in filing a federal civil rights lawsuit against them adequately stated a claim for denial of access to the courts. Federal appeals court notes that Defendant officials did not respond to these claims, and that the prisoner claimed to have been denied access even to the applicable rules on summary judgment before his other claims were rejected on the Defendants' summary judgment motion.

     After a Virginia prisoner filed a federal civil rights lawsuit claiming deliberate indifference to his serious medical needs and that retaliatory actions by prison officials prevented him from pursuing a state court medical malpractice claim, he further amended his complaint to contend that prison officials retaliated against him for filing the federal lawsuit.

     Specifically, he argued, prison officials unreasonably limited his access to the law library, filed false disciplinary charges against him, overrode his security level, and transferred him. An "all-day" library pass was allegedly revoked the same day the lawsuit was filed, and he claimed that he was falsely charged with assault shortly thereafter. Then, even though he allegedly did not have sufficient points to raise his custody level, the administration overrode his classification, ensuring that he had the necessary points to effectuate a transfer.

     While awaiting his transfer, the prisoner claimed he was denied requested materials from the law library.

     The trial court rejected all of the prisoner's claims, including those for retaliatory denial of access to the courts for filing the federal lawsuit. A federal appeals court has found that this last dismissal was improper under the circumstances.

     The appeals court noted that the prisoner asserted on numerous occasions in the trial court that he was unable to file necessary responses and motions because he was denied access to the law library and legal research. He claimed on appeal that he was unable to properly present his case due to the Defendants' actions.

     The appeals court noted that, in fact, the trial court granted summary judgment on his original claims, in part, because he had not submitted any affidavits or witness statements. The prisoner swore that he could not research the discovery rules and that he did not even have access to the federal rules regarding summary judgment due to the Defendant officials' retaliatory actions. The appeals court further noted that the Defendants "did not respond" to these claims, and the trial court had earlier found that these allegations sufficiently stated a claim.

     The appeals court found that these "undisputed allegations, if believed, show that the Defendants' actions were based on a retaliatory motive and had a chilling effect on the litigation of his original claims." The alleged actions--filing false charges, transferring the prisoner, and limiting his access to the library during a period when he had court deadlines--amounted to more than minimal inconvenience.

     The appeals court therefore ordered further proceedings on the prisoner's claims for unlawful retaliation interfering with his right of access to the courts, while declining to order, as he requested, that a lawyer be appointed to represent him. The court found that the record showed that the prisoner had the capacity to adequately present his claims on his own. "His pleadings, while unnecessarily lengthy, clearly presented the factual and legal background of his suit. In addition, his claims of deliberate indifference and retaliation are neither extraordinary nor legally complicated."

     Goodman v. Smith, No. 02-6313, 58 Fed. Appx. 36 (4th Cir. 2003).

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

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Federal appeals court holds that limits on attorneys' fees awards established by the Prison Litigation Reform Act applied to prisoner's successful challenge to retroactive change in rules concerning the date of his eligibility for parole hearing. These limits apply to all lawsuits brought by prisoners, not just those concerning "prison conditions," but also those challenging the length of confinement.

     A Georgia prisoner filed a lawsuit challenging the extension of the time for his first parole hearing. He had been convicted of aggravated assault and sentenced to twenty years of imprisonment with five years to serve in prison and fifteen years of probation. On the date that he had committed the assault, a prisoner convicted of such an offense was required to serve a minimum of one-third of his prison term before becoming eligible for a parole hearing. Subsequently, however, the parole board amended its policy to provide that those convicted of certain crimes, including aggravated assault, must serve a minimum of 90% of their term before becoming eligible for a parole hearing. Under this new policy, the board postponed the date of the prisoner's eligibility for a parole hearing.

    After his requests to reconsider his parole eligibility were denied, he filed a federal civil rights lawsuit claiming that applying the new policy to his offense retroactively increased his punishment in violation of the Ex Post Facto Clause of the U.S. Constitution. The trial court accepted this argument and enjoined the enforcement of the new policy against the plaintiff, ordering the board to provide him with an initial parole eligibility hearing within 45 days of the order. The board subsequently held the hearing and granted the prisoner parole.

     The trial court subsequently granted a portion of the prisoner's motion for attorney's fees, applying certain limitations found in the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(d). The prisoner claims that this limitation did not govern either his motion for attorneys' fees or a subsequent application for additional fees, because his federal civil rights lawsuit challenged the length of his confinement and not "prison conditions" within the meaning of the statute. In the alternative, he argued that the limitation violated his right to equal protection. The Defendant state Board of Pardons and Paroles cross-appealed, asserting that the prisoner should not have been awarded "fees-on-fees," or attorneys' fees incurred in the course of litigating his petition for attorneys' fees.

     A federal appeals court upheld the trial court's decision in its entirety. The trial court had awarded the prisoner attorneys' fees in the amount of $9,194.82 and costs of $113.96, for a total award of $9,308.78.

     The appeals court found it "apparent" from the plain language of Sec. 1997e(d) that "any action brought by a prisoner" meant all lawsuits that are filed by a prisoner and its application is not restricted to lawsuits challenging "prison conditions" that are filed by a prisoner. Additionally, Congress defined the term "prisoner" as used within Sec. 1997e as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law." See, 42 U.S.C. § 1997e(h).

     Therefore, the trial court acted properly in reducing the amount of the prisoner's requested attorneys' fee award based on the factors in the statute. Limits in the statute include a reduction of hourly rates to no greater than 150 percent of the hourly rate established under 18 U.S.C. Sec. 3006A for the payment of court-appointed counsel. Additionally, in cases where money damages are awarded, a portion of those damages (up to 25 percent) are used to satisfy the amount of the attorneys' fees awarded against the Defendant, with the excess paid by the Defendant "if the award of attorneys' fees is not greater than 150% of the judgment."

      The appeals court also rejected the prisoner's equal protection challenge to the statute. He claimed this occurred by restricting the attorneys' fees awards of prisoners while permitting other litigants to recover full attorneys' fees awards. The appeals court noted that several other federal appeals courts have previously address the issue and found § 1997e(d) in its entirety, or its various subsections, constitutional. "We conclude, like our sister circuits, that § 1997e(d) is constitutional."

     Prisoners, the court noted, are not a suspect classification, such as race. The court rejected the prisoner's argument that the attorneys' fees restriction violated his fundamental right of access to the courts by discouraging attorneys from taking prisoners' civil rights cases. The prisoner was represented by a lawyer and was successful in his actions, the court reasoned, so he had no basis to show that his right of access to the courts had been damaged. Sec. 1997e(d) was therefore found to be constitutional long as there was a rational basis for the classification treating prisoner cases differently than other litigants.

     The appeals court found that Congress reasonably intended, in enacting the attorneys' fees limits in the statutes, to decrease "marginal or trivial lawsuits" by prisoners. "Before the fee cap, there was nothing to dissuade attorneys from 'adopting a 'shotgun' approach, filing numerous claims in the hopes that at least a minor violation would likely be found, [thus] assuring the recovery of attorneys fees.' By lowering the fees recoverable for a successful claim, 'a rational attorney [is likely to] demand a greater likelihood of success before taking a prisoner's case.'" Congress could also reasonably act to protect the state and federal treasuries from which the majority of prisoner civil rights awards are paid, based on a rational conclusion that prisoner civil rights litigation had led to attorneys fees' awards "which are often disproportionate to the harm or injury."

     The appeals court also rejected a claim that the fees limit had a disparate impact on African American males because they "represent the majority of persons incarcerated in our prisons." The prisoner failed to show any evidence of discriminatory intent by Congress.

     Finally, the appeals court rejected the argument by the Defendant Board that the trial court erred in awarding the prisoner "fees-on-fees," because such fees were not "directly and reasonably incurred in proving an actual violation" of the prisoners rights as required by 42 U.S.C. § 1997e(d)(1)(A). It agreed with two other appeals courts which have concluded that fees-on-fees are recoverable under § 1997e(d)(1). See Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir. 2001); Hernandez v. Kalinowski, 146 F.3d 196, 200-01 (3d Cir. 1998).

     The appeals court stated that it is "well-settled that fees-on-fees are permitted under [42 U.S.C.]   § 1988 even though Congress did not explicitly provide for fees-on-fees therein." Since Congress has not "'expressed an intent to change this established construction,' we will continue to follow that construction."

     Jackson v. State Board of Pardons and Paroles, #02-15545, 2003 U.S. App. Lexis 9773 (11th Cir.).

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

     EDITOR'S NOTE: For other federal appeals court decisions upholding the constitutionality of 42 U.S.C. Sec. 1997e(d), see Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir. 2001) (concluding that § 1997e(d)(2) survives rational basis review); Walker v. Bain, 257 F.3d 660, 670 (6th Cir. 2001) (concluding the same), cert. denied, 535 U.S. 1095, 152 L. Ed. 2d 1050, 122 S. Ct. 2291 (2002); Hadix v. Johnson, 230 F.3d 840, 847 (6th Cir. 2000) (concluding that § 1997e(d)(3) survives rational basis review); Boivin v. Black, 225 F.3d 36, 46 (1st Cir. 2000) (concluding that § 1997e(d)(2) survives rational basis review); Madrid v. Gomez, 190 F.3d 990, 995-96 (9th Cir. 1999) (finding that § 1997e(d) passes constitutional muster). But see Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 686 (3d Cir. 1999) (en banc) (declining to rule upon the constitutionality of § 1997e(d)(3) because the court was divided equally on the issue).

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California Supreme Court overturns $175,006 award to man beaten by another detainee in city jail while confined there for public intoxication. Plaintiff, arrested for public intoxication, was a "prisoner" while confined, entitling city to governmental immunity, despite subsequent decision not to pursue charges.

     A California man was arrested because of public intoxication but later released without any charges. He subsequently sued the city, contending that he had suffered a bad beating at the hands of another prisoner while he was in the city jail. He claimed that the city's negligence had caused his injuries.

     The defendant city argued that it was immune from liability for the plaintiff's injuries under either Cal. Govt. Code section 844.6(a)(2) (providing immunity for injuries to prisoners) or Cal. Govt. Code section 820.2 (discretionary act immunity). The trial court ruled that neither statute provided the city with immunity, and a jury awarded the plaintiff damages of $175,006.89.

     The California Supreme Court has now overturned that award. It found that the plaintiff was a prisoner at the time he was injured, so that the city was immune from liability under Cal. Govt. Code section 844.6(a)(2).

     The plaintiff had argued, and the trial court had evidently accepted the argument that the plaintiff had not been a "prisoner" at the time of the beating but rather a "detainee" in civil protective custody, and further that the placement of him, as an intoxicated person, in a cell was a ministerial act rather than a discretionary act entitled to immunity. He allegedly was placed in a jail cell solely because there was no civil detoxification facility to which he could reasonably have been taken at the time.

     On appeal to the California Supreme Court, the defendant city solely relied on the issue of immunity for acts causing injury to a prisoner.

     The California Supreme Court noted that the statute itself provides that a "lawfully arrested person who is brought into a law enforcement facility for the purpose of being booked" becomes "a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal processes."

     In this case, the plaintiff was arrested and booked for violation of Penal Code section 647(f) prohibiting public intoxication, the court reasoned. While the statute in question does allow an officer making an arrest for such intoxication to place a person in civil protective custody if they are reasonably able to do so, barring future criminal prosecution, in this case, the plaintiff was not actually placed in civil protective custody.

     The California Supreme Court also rejected the reasoning of a prior lower court decision, Meyer v. City of Oakland, 107 Cal. App. 3d 770 (1980), that a person arrested for public intoxication being held in jail pending transfer to a civil detoxification facility is not a prisoner for purposes of the immunity statute. The immunity granted for injuries to a prisoner was based on a determination that no liability should be imposed as a consequence of conditions "which are common to all inmates and which simply represent a reasonable application of general policy determinations by responsible prison or jail authorities with respect to the administration of such institutions."

     The arrest for public intoxication was valid when made, and the subsequent determination to not pursue the charges, but instead simply release the plaintiff without further proceedings did not alter the plaintiff's status as a prisoner while still confined.

     Teter v. City of Newport Beach, No. S106553, 66 P.3d 1225 (Cal. 2003).

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

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Federal appeals court rules that prisoner could pursue his claim against the District of Columbia asserting that it had a policy or custom that caused him to suffer inadequate medical treatment once he was transferred to a Virginia state prison while serving a D.C. sentence. Prisoner should not, appeals court holds, be required to show that D.C. officials acted with subjective deliberate indifference in order to pursue his claim.

     A District of Columbia prisoner serving a D.C. sentence was transferred to a Virginia state correctional facility, and contended that he was subjected to deliberate indifference to his serious medical needs there. He filed a federal civil rights claim against the District of Columbia contending that it had an official policy or custom which resulted in the violation of his Eighth Amendment rights.

     The alleged inadequate medical care was provided at times by state employees and at other times by employees of a private company under contract with the Virginia Department of Corrections.

     According to his complaint, he suffered two unrelated conditions for which surgery was ultimately recommended, a facial abscess and swelling on the left side of his nose and face that eventually closed 80% of his left eye and ruptured. He allegedly received no treatment other than three days of antibiotics, despite continued swelling and headaches for eight months. The diagnosis of the problem was altered several times, and one doctor told him that surgery was indicated but he should wait until he was older and the abscess had spread to other parts of his face. The abscess ultimately burst and "continued to ooze for weeks."

     In a second incident, the prisoner injured his leg during a softball game and sought medical attention, which was not offered for over 45 minutes, despite his severe pain. After x-rays were taken, he was allegedly returned to his cell without a wheelchair or pain medication. Continued problems with the leg occurred, and the prisoner complains that he was not provided with access to specialists for additional treatment, such as an orthopedist who could determine whether he had torn ligaments or cartilage.

     One doctor later stated that "if inmates are not diabetics, HIV positive, or have high blood pressure the chances of getting more than minimal care is not going to happen and the result from the lack of care makes [the doctor] look like the villain to the inmates." The prisoner was ultimately seen by an orthopedic specialist who told him that he probably had a torn cartilage that would require additional treatment, but he was told that because of his imminent transfer, any request for further treatment "might well not be fulfilled."

     The prisoner filed suit for violations of his Eighth Amendment rights during his incarceration, under state common law for medical malpractice, and under the Interstate Corrections Compact, D.C. Code Ann. § 24-1001 (2001). He named as defendants the District of Columbia, the directors of the Federal Bureau of Prisons and the Virginia Department of Corrections, and six medical personnel, some of whom were employed by a private contractor, and prison administrators.

     The trial court dismissed the claims against the District of Columbia, ruling that liability for the District would require a showing that the District was "subjectively aware" of the prisoner's medical needs, but that because all of the individual defendants were either Virginia correctional officials or private contractors, this was not possible.

     A federal appeals court agreed with the plaintiff prisoner that the trial court:

erred by confusing the "deliberate indifference" required to find an underlying Eighth Amendment violation by the Virginia defendants, which does require subjective knowledge, with the "deliberate indifference" required to find that the District of Columbia ignored the unconstitutional conduct of the Virginia prison officials to whom it had entrusted its prisoners, which only requires objective knowledge. He contends that under Monell he may state a claim against the District of Columbia based on a policy or custom without any analysis of the subjective state of mind of District of Columbia officials.

The distinction between the two "deliberate indifference" standards was drawn by the Supreme Court in Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992). Accordingly, in considering whether a plaintiff has stated a claim for municipal liability, the district court must conduct a two-step inquiry. First, the court must determine whether the complaint states a claim for a predicate constitutional violation. Second, if so, then the court must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation. Each inquiry is separate and serves different purposes.

     In the first step, the prisoner had to allege that officials had subjective knowledge of the serious medical needs he faced and recklessly disregarded the excessive risk to his health or safety from that risk. This did not require a showing that either the District of Columbia policymakers or its employees were implicated. "All that is being established at this stage is that there is some constitutional harm suffered by the plaintiff, not whether the municipality is liable for that harm."

     Under the second step, the trial court needed to determine whether the prisoner's complaint stated a claim that a policy or custom of the District of Columbia caused the constitutional violation alleged under the first step. "Deliberate indifference is determined by analyzing whether the municipality knew or should have known of the risk of constitutional violations, an objective standard," the appeals court reasoned. In this case, because the trial judge erroneously ruled that the prisoner had to prove subjective indifference by the District of Columbia, it improperly analyzed the second step.

     In this case, the prisoner alleged that the District of Columbia has a "continuing, non-delegable responsibility" for him as a D.C. resident serving a D.C. sentence to ensure that his Eighth Amendment rights are not violated where the Virginia Department of Corrections is serving as its agent, and that the alleged violation of his Eighth Amendment rights was "due to" the District of Columbia's "inadequate policies, procedures, and practices." He claimed that had the D.C. contract monitor done its job competently, the District would have known that the Virginia Department of Corrections had contracted out its medical services to a notoriously "incompetent" health care provider, and had "deliberately" allowed this to continue by not maintaining supervision. This was sufficient to state a claim against the District of Columbia.

     Baker v. Dist. of Columbia, No. 01-5205, 326 F.3d 1302 (D.C. Cir. 2003).

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

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Mississippi Department of Corrections was not liable for parolee's alleged rape of woman based on discretionary decision not to revoke his parole when he failed to report to parole officer within 72 hours of his release from his custody in Illinois. Evidence failed to show gross or reckless failure to supervise parolee or that there was any knowledge of the parolee's intent to harm a particular person.

     A woman was allegedly raped in Mississippi by a parolee who had been accepted by the state from Illinois for supervision. The crime victim sued the Mississippi Department of Corrections, contending that it should be held responsible for her injuries, based on negligence in failing to revoke her alleged attacker's parole after he failed to report to his Mississippi parole officer within 72 hours of his release from custody in Illinois.

     The rape victim also pointed to other alleged acts of negligence, such as failing, in the month before she was raped to conduct a home visit and two other "collateral" visits (involving contact with other persons in contact with the parolee), which were required under the "intensive supervision" plan under which the parolee had been placed.

     The Supreme Court of Mississippi has upheld summary judgment to the defendant state agency.

     The court held that the interstate compact for the supervision of out-of-state parolees, M.C. Sec. 47-7-71, does not create any private right of action for damages by persons injured by parolees. Additionally, the decision as to whether to revoke the alleged attacker's parole for failing to promptly report to his parole officer was a discretionary one, entitling the state and its employees to immunity under the Mississippi Tort Claims Act, M.C. Sec. 11-46-9(1).

     The court further noted that there was nothing to show that the failure to conduct the required visits in the month prior to the alleged rape was evidence of a "gross, reckless, or wanton" failure by the state to carry out its statutory duty to supervise parolees, or that it knew of any specific intent by the parolee to harm the plaintiff victim, and accordingly nothing sufficient to overcome the discretionary immunity afforded to the state under the statute.

We sympathize with Connell [the plaintiff] for the great trauma that she suffered. However, in the absence of a statutory violation that can be causally linked to the rape or a specific threat on the part of a parolee to harm another, we will not impose liability.

     Connell v. State Ex Rel. Mississippi Department of Corrections, #2002-CA-00135-SCT, 841 So. 2d 1127 (Miss. 2003).

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

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Because the plaintiff was a prisoner when he brought his lawsuit concerning an alleged assault by prison personnel and forced medication, his failure to exhaust available administrative remedies required dismissal of his lawsuit, despite the fact that he had subsequently been released from custody while his lawsuit was pending, federal appeals court rules.

     A federal trial court declined to dismiss a federal civil rights lawsuit against a prison doctor and other correctional staff members on the basis of the plaintiff's failure to exhaust available administrative remedies as required under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act. The lawsuit claimed that the plaintiff, while a prisoner at a federal special needs facility, was assaulted by prison officials and improperly forcibly medicated upon the order of the prison doctor.

     While the prisoner had submitted an inmate grievance form, he did not hear back from prison officials, and six months later, while still a prisoner, he filed his lawsuit in federal court in Tennessee. After filing his complaint, he was released from prison. The defendant doctor argued that the lawsuit should be dismissed for the plaintiff's failure to exhaust available administrative remedies, since the prisoner never took the next step under the grievance procedure as required by prison regulations if no response was received, and had instead "abandoned the grievance process."

     While the trial court initially dismissed the lawsuit without prejudice, the prisoner argued, in a motion for reconsideration, that he was no longer a prisoner and could simply reinitiate his lawsuit, so that a dismissal without prejudice made little sense--"no longer in prison, plaintiff had no remedies to exhaust." The trial court agreed, stating that it was doing so because "under [such] circumstances, where Plaintiff could immediately refile his claims without exhausting administrative remedies, it seems that judicial economy would not be served by the dismissal of Plaintiff's complaint."

     The federal appeals court found that the single issue was "whether a federal district court must dismiss an action filed by a plaintiff prisoner who does not exhaust his administrative remedies before filing suit (as is required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a)), where the prisoner was subsequently released from prison such that, when the court considers the motion to dismiss for failure to exhaust, plaintiff is no longer a prisoner. This is a question of first impression in this circuit - or in any circuit, for that matter."

     The court found that the statute was "unambiguous," and therefore should be applied as written. To avoid doing so would "usurp the legislative function," and could also "prevent potentially frivolous suits from meeting an administrative death (as the statute intended)."

     The court further noted:

Viewed differently, the problem is one of incentive: though dismissal without prejudice may well be judicially uneconomical in the instant case, to excuse plaintiff's duty to exhaust in every instance would encourage all prisoners nearing completion of their sentences to eschew the grievance process in favor of the courts. Such prisoners would know that, no longer confined at the time the courts addressed their case, their failure to exhaust could be excused.

     The court noted that "Our policy discussion makes the assumption that a prisoner who has not exhausted administrative remedies while in prison may nonetheless sue after being released from prison. We make this assumption only for the sake of argument, and do not decide the issue one way or the other."

     Cox v. Mayer, No. 02-5102, 2003 U.S. App. Lexis 11554 (6th Cir.).

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No liability for federal prison officials for death of prisoner stabbed by another inmate following a fight over a chess game. Having one officer supervising 219 inmates with violent propensities during a facility-wide move did not, by itself, establish either a violation of civil rights or negligence under the Federal Tort Claims Act, in the absence of any expert testimony or other evidence that this caused the assault. Officer did not act with deliberate indifference to assaulted prisoner's serious medical needs when he summoned help as soon as he learned of the stabbing.

     The mother of a federal prisoner who was stabbed to death by another inmate following a fight over a chess game during a facility-wide move of prisoners sued prison officials for violation of her son's civil rights and for negligence under the Federal Tort Claims Act, 28 U.S.C. Sec. 2674.

     At the time of the stabbing, the only officer supervising the inmates in the unit allegedly did not witness the fight. This one officer was in charge, at the time, of supervising 219 inmates with violent propensities, the lawsuit claimed. The plaintiff argued that this constituted insufficient supervision of the prisoners violating the Eighth Amendment, as well as negligence, and that the correctional officer was subsequently deliberately indifferent to her son's serious medical needs after he was stabbed, resulting in him bleeding to death.

     The trial court found that, in the absence of either expert testimony or some other evidence to show that prison officials were aware of an "excessive risk" to the prisoner's safety, there was no basis for a constitutional claim for inadequate supervision. Further, even if having only one officer supervising 219 inmates during a facility-wide move, during which prisoners were moved from one area within the facility to another, was a breach of a duty of care towards the assaulted prisoner, liability for negligence under New York state law (applicable to federal prison officials through the Federal Tort Claims Act) could not be imposed without evidence showing that the stab wound was the result of this breach.

     As for any claim that the officer was deliberately indifferent to the prisoner's medical needs, the court found that he acted objectively reasonably in summoning a prison emergency medical technician and other officers to help as soon as he learned that the prisoner had been stabbed and was bleeding heavily. He was therefore entitled to qualified immunity.

     Those summoned arrived quickly and attempted to provide first aid, applying pressure to the wound, giving him an IV and oxygen, and calling for an ambulance. The fact that the stabbed prisoner went into cardiac arrest and died when he was transferred from a hospital emergency room to an operating room did not show that prison personnel were negligent in dealing with the prisoner's medical problems.

     Robinson v. U.S. Bureau of Prisons, 244 F. Supp. 2d 57 (N.D.N.Y. 2003).

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

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Prison superintendent could not be held liable for correctional officer's alleged unprovoked assault on prisoner when he had no reason to know of any particular risk to the inmate prior to the incident, and no personal participation in the incident. Prisoner also had no due process right to have his grievance about the alleged assault thoroughly investigated.

     A New York prisoner housed in a special housing unit translated a request to a correctional officer for toilet paper made by an inmate housed in an adjoining cell who did not speak English. In response, the correctional officer allegedly swore and denied the request, telling the prisoner to "mind his own business" and to inform the other inmate to "wash up in the toilet or use his washcloth.

     When the officer left, the prisoner reported the incident to the Sergeant on duty, who assured him that the officer would deliver toilet paper shortly. When the officer returned with the toilet paper minutes later, he allegedly told the prisoner that he would "get" him on the day he was scheduled for release from special housing, in retaliation for having "snitched on me to the Sergeant." On the prisoner's scheduled release day, the officer allegedly appeared along with two lieutenants.

     The officer allegedly handcuffed the prisoner, "pat frisked" him roughly, including intentionally grabbing him in the groin, and then, when he objected, slammed his head against the wall. The prisoner claimed that he was then taken to the "strip room" where the officer punched him in the face causing him to fall to the ground unconscious. He later regained consciousness as he was lifted from the ground, noticing a pool of blood beneath him.

     The prisoner required 19 stitches around his mouth and the removal of two of his front teeth. The dentist also expressed the opinion that the prisoner would "never recover from the nerve damage he suffered." The officer later charged the prisoner with "aggressive and disruptive" behavior and contended that he had only punched him "in self-defense." A hearing over the incident adjourned to review evidence and to arrange for the prisoner's witnesses to be summoned, but was never reconvened.

     When the prisoner later filed a request for the hearing tape, the misbehavior report and the disposition of the charges, as well as pictures that were taken of him after the incident, he was informed that "no file" existed.

     The prisoner filed a federal civil rights lawsuit claiming that the prison's supervisory officials improperly declined to protect him from the officer's assault and then further violated his rights under the Eighth and Fourteenth Amendment by failing to conduct a full investigation of the incident.

     A federal trial court granted a motion by the prison superintendent to dismiss the claims against him. There were no indications that the superintendent was personally involved in the incident in any way, or that he had any knowledge of, or reason to have knowledge of, the dispute between the prisoner and the officer prior to the alleged assault. He did not have awareness of any specific risk to the prisoner which he ignored. There also was no showing that there was a custom or practice at the prison of depriving inmates of their rights.

     The mere broad assertion that the superintendent "had a duty" to protect the plaintiff prisoner was insufficient to impose supervisory liability. And imposing such liability merely on the basis of the claim that the incident took place would amount to vicarious liability for an employee's action, which is improper in a federal civil rights claim.

     The trial court also rejected the claim that the prisoner's rights were violated by prison officials' failure to conduct a thorough investigation of his grievance concerning the alleged assault, since his witnesses were not interviewed and various forms of evidence that he alleges exists were not examined.

     The breadth of any investigation remains in the discretion of the officers conducting the investigation. Torres [the prisoner] does not have a protected liberty interest in having his grievances investigated at the level of thoroughness that he desires, and therefore he cannot assert a due process claim as to such failures.

     The failure to conduct an extensive investigation into the prisoner's charges did not impose an "atypical and significant hardship" upon the prisoner sufficient to create a protected liberty interest, the court concluded.

     Torres v. Mazzuca, 246 F. Supp. 2d 334 (S.D.N.Y. 2003).

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New Jersey appeals court orders new hearing for prisoner found guilty of threatening a correctional officer based on improper denial of prisoner's request to confront, question, and cross-examine the accusing officer and present live testimony by another correctional officer who witnessed the incident. Hearing officer's determination of credibility solely based on accusing officer's written statements violated prisoner's 6th Amendment rights.

     A New Jersey prisoner was found guilty of a disciplinary offense of having threatened a correctional officer with bodily harm, a charge he denied. The prisoner appealed the finding, contending that the manner in which the disciplinary hearing had been conducted violated his constitutional right under the Sixth Amendment to confront his accuser.

     A New Jersey intermediate appellate court agreed with the prisoner. While the inmate had sought the opportunity to question and cross-examine the accusing officer, the hearing officer had required the prisoner to submit written questions for the correctional officer to answer in writing, and had made a ruling that the officer's version of the incident was credible, based on his original written report and the written questions and answers.

With allowances for the special rule that due process rights in prison disciplinary proceedings may be tailored to meet the needs of the institutional context in which such proceedings arise, prison inmates may not be deprived of basic due process protections. The opportunities to confront one's accusers and cross-examine them, and to develop one's own proofs, are basic protections in our system of adjudication.

     While such rights may be waived, or limited in prison inmate disciplinary matters, the court stated, they cannot be "denied or limited in any way that dilutes them to the vanishing point." In this case, when the prisoner was denied in-person confrontation and cross-examination in respect of the accusing correctional officer, he was "deprived of the fundamental opportunity to develop his defense by revealing the weaknesses in the accusation against him either on the basis of the accuser's credibility or otherwise."

     The hearing officer's decision was based on a credibility finding favorable to the accuser which "could not be fairly reached" without affording the prisoner the opportunity to address the credibility issue effectively, the court held. Nothing substitutes for the trier of fact's opportunity in measuring truth or falsity, "to view the witness's demeanor in presenting his allegations."

     Further, in this case, the prisoner was also denied access to the testimony of an alleged eyewitness to the incident, a second correctional officer, for the purpose of probing the accuracy of the charge, as this officer also was permitted to merely submit a written statement, and could not be questioned by the prisoner.

     Under applicable state regulations, the hearing officer could deny the right to call a particular witness under circumstances where it would be unduly hazardous to correctional facility safety or goals, and provided that a specific statement of the reasons for the refusal is made, but the court found that the hearing officer in this case did not meet the requirements of that regulation.

A proceeding in which the right of confrontation and cross-examination has been unduly curtailed, or the accused unreasonably limited in his access to witnesses in his favor, lacks both the form and substance of a fair hearing.

     The appeals court reversed and remanded for a new hearing, warning however that the correctional department's "inability to comply with its due process obligations" is "distressing," and that if that shortcoming is unremedied in the future, "the result may come to be outright reversal of the matters at hand without any provision for remand for new hearings."

     Jones v. Department of Corrections, 819 A.2d 1 (N.J. Super. A.D. 2003).

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Composition of disciplinary board which found prisoner guilty of participating in a riot did not violate his right to due process even if it violated a prison policy that it should be composed of employees of the private company managing the prison rather than employees of the state department of corrections. Constitutional due process merely requires that the decision maker be impartial.

     After a disciplinary hearing, an Indiana prisoner was found guilty of participating in a riot, and sanction with 365 days of disciplinary segregation, along with the revocation of 180 days of earned-time credit.

     A federal trial court rejected the prisoner's attack on this result, and a federal appeals court has upheld this result.

     In his appeal, the prisoner claimed that he had received inadequate due process in that the composition of the disciplinary board was improper, he did not receive sufficient notice of the charges against him, and he was denied the opportunity to call certain witnesses and review certain evidence. He also complained that he was convicted on the basis of information gathered from unreliable sources including confidential informants.

     The appeals court noted that the documents that the prisoner received prior to the hearing informed him that he was being charged with rioting, the code number of the rule allegedly violated, and the conduct allegedly giving risk to the violation--his identification as being an active participant in an inmate disturbance which included busting bathroom fixtures and throwing institutional televisions out of windows. This constituted adequate notice of the charges for due process purposes.

     The prisoner was confined at a prison operated and managed by a private company, and he complained that the disciplinary board was composed of employees of the Indiana Department of Corrections rather than employees of the Corrections Corporation of America, the private company managing the prison, in violation of established prison policy. The appeals court noted that due process only requires that a disciplinary hearing be conducted by an impartial decision-maker, and that a violation of state law or prison policy, standing alone, is not a violation of constitutional rights. The prisoner did not argue that the board was biased.

     The prisoner claimed that he was improperly denied the right to call the warden as a witness at the hearing, but a screening report showed that the prisoner requested fourteen witnesses, with the warden not included on that list. Based on the prisoner's failure to request the warden's presence at the hearing, the warden's absence did not deny him due process.

     The prisoner was properly denied access to a written report prepared by a prison investigator since it was determined that its disclosure could threaten the safety of other inmates and the facility's security. The investigator's testimony to the truth of his report both by an oath contained in the report and directly to the disciplinary committee rendered the report sufficiently reliable to satisfy due process, the court found.

     The disciplinary board's decision was supported by "some evidence," the court concluded, rendering the process provided adequate.

The "some evidence" standard is a lenient one, requiring only that there must be some factual basis supporting a prison disciplinary board's decision to revoke good-time credits.

     Sampson v. Davis, #02-3037, 58 Fed. Appx. 217 (7th Cir. 2003).

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Jail officials had an objectively reasonable belief that they were not violating a Muslim prisoner's religious freedom rights by denying him a vegetarian diet and were therefore entitled to qualified immunity from liability for doing so.

     A Muslim prisoner who was incarcerated in a Minnesota jail indicated his religion and requested that he be served an exclusively vegetarian diet. A jail official responded by doing some research into Muslim religious beliefs and practices and it was believed, on the basis of this research, that a vegetarian diet was not essential to the practice of Islam, although a pork-free diet was.

     This research included speaking to Muslim religious leaders in a number of places. The prisoner was then asked to provide some documentation that a vegetarian diet was essential to his religion, and he failed to do so. The jail then supplied him with a pork-free diet, but not a vegetarian one. The prisoner then filed a claim with a state Department of Human Rights. After that Department upheld his claim that the denial of a vegetarian diet violated his right to religious freedom, the jail adopted a policy that allowed any prisoner to request a vegetarian diet for any reason. This new policy did not go into effect until the prisoner had already left the jail.

     The prisoner sued jail officials for violating his right to practice his religion and also claimed that they retaliated against him for exercising his constitutional rights by transferring him.

     A federal appeals court found that the jail officials had an objectively reasonable belief that they were not violating the prisoner's constitutional rights by offering him a pork-free diet out of respect for his religious beliefs, and they were therefore entitled to qualified immunity.

Qualified immunity shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person would have known." It is well settled that jail and prison inmates "have the right to be provided with food sufficient to sustain them in good health [and] that satisfies the dietary laws of their religion." It is not well-established, however, that Muslims must be offered a meat-free diet.

     The appeals court also upheld findings that the plaintiff prisoner was disciplined and transferred due to a pattern of misbehavior and repeated violations of the jail's rules of conduct. He failed to show that the transfer was in retaliation for his request for a vegetarian diet, or that he was denied access to the courts by being given insufficient amounts of writing paper.

     Kind v. Frank, No. 02-1969, 2003 U.S. App. Lexis 10754 (8th Cir.).

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Texas correctional agency was not liable for alleged sexual assault on female prisoner at state jail by male guard in men's restroom. Intermediate appeals court rejects argument that facility's physical layout was a proximate cause of the alleged assault, bringing the claim within an exception for harms arising from the condition of state property to the immunity provided under a state tort claims act.

     A female prisoner at a state jail facility had finished her work detail of cleaning a men's restroom at the facility, when a male guard allegedly approached her, pushed her into the restroom, and forced her to have sexual intercourse with him, instructing her to say nothing about the incident. After she reported the assault to facility employees, she claimed, rather than providing her with medical care and investigating her report, she was directed not to report the assault to the police and then disciplined for "lying."

     A doctor's examination a week later reported that the prisoner had been forced to have or had had forcible intercourse. The prisoner, who subsequently was released, sued the state Department of Criminal Justice, arguing that the Department was liable for the alleged assault based on the facility's purportedly defective layout and a lack of integral safety components. Specifically, she contended that the facility lacked adequate surveillance equipment in places such as the men's restroom in which the alleged assault took place. She also argued that the Department's negligence in laying out the facility and lack of adequate surveillance equipment prevented facility personnel from supervising the plaintiff while she was on work detail in the men's restroom.

     Upholding the dismissal of these claims, an intermediate Texas appeals court noted that as an agency of the state, the Department is immune from suit and cannot be liable for damages unless the plaintiff's claims fall within the statutory waiver of sovereign immunity under the state Tort Claims Act, T.C.A., Civil Practice & Remedies Code Sec. 101.021(2).

     One area in which that immunity is waived, which the plaintiff attempted to argue for, are harms arising from the condition of or use of property. In this case, the court found, the facility's layout did not constitute a use or condition that proximately caused the plaintiff's alleged injuries. Property does not "cause injury if it does no more than furnish the condition that makes the injury possible" rather than causing the injury.

     The court also found that the failure to use surveillance equipment in the men's room was not a "use" of property which caused the injury. Rather, this was an allegation of the "nonuse of surveillance equipment," for which immunity was not waived under the Act. The court was also unpersuaded by the plaintiff's argument that "surveillance equipment is an integral safety component of a men's restroom." The Department's decision about whether or where to locate surveillance equipment within the facility would be a discretionary policy decision, the court found, for which sovereign immunity is not waived.

     Bonham v. Texas Department of Criminal Justice, No. 03-02-00389-CV, 101 S.W.3d 153 (Tex. App. 2003).

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Access to Courts/Legal Info

     Prisoner did not assert a valid federal civil rights claim for denial of access to the courts since he failed to allege that the conduct he complained of prevented him from pursuing any non-frivolous legal claim challenging his conditions of confinement or his conviction. Ruiz v. Bouchard, #02-1962, 60 Fed. Appx. 572 (6th Cir. 2003).

Damages: Punitive

     U.S. Supreme Court holds that a punitive damages award of $145 million was excessive in a case where the compensatory damages were $1 million. Such a disproportionate award of punitive damages violates the Due Process Clause of the Fourteenth Amendment. Courts reviewing punitive damages should consider: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co. v. Campbell, #01-1289, 123 S. Ct. 1513 (2003). [Editor's Note: While this case arose in a non-correctional context, the reasoning would also apply in a corrections case in which an award of punitive damages was being reviewed].

Disability Discrimination

     Despite the prisoner having a medical condition that required him to only be assigned to a lower bunk, prison officials did not engage in disability discrimination by disciplining him for his disobedience to a housing order when the evidence showed that he refused his new cell assignment not on the basis of his alleged disability, but because he refused to be celled with a black inmate. Prisoner's broad claim that the housing of inmates of different races together could cause a "prison riot" was insufficient to show that prison officials were "deliberately indifferent" to his safety. Hoover v. Keating, No. 02-5136, 59 Fed. Appx 288 (10th Cir. 2003).

Drugs and Drug Screening

     Prisoner was properly disciplined for violating rule against the use of controlled substances. Correctional officer who tested the prisoner's urine sample was certified and qualified to do so. Perez v. Goord, 757 N.Y.S.2d 382 (A.D. 2003). [PDF].

Employment Issues

     Arbitrator did not have the authority to reduce the discipline of a correctional officer from termination to a 60-day suspension in circumstances where the misconduct involved the development of an inappropriate personal relationship with an inmate. The officer's relationship with the inmate created a potential security risk. State of Rhode Island v. Brotherhood of Correctional Officers, No. 2001-590-Appeal, 819 A.2d 1286 (R.I. 2003).[PDF]

     Correctional officer's memo to his employer, requesting vacation time to "spend the Christmas holiday" with his parents, even though it did mention their failing health, was not sufficient to inform the department that he was seeking family leave as he was entitled to do under a California state statute, to take care of his parents. Denial of his request, therefore, did not violate his rights or subject the employer to liability. Stevens v. California Department of Corrections, No. C039896, 132 Cal. Rptr. 2d 19 (Cal. App. 2003).[PDF].

False Imprisonment

     New York Department of Correctional Services was not barred from extending a prisoner's sentence based on a prior error in calculating his tentative conditional release date. The Department had a "continuing, non-discretionary, ministerial duty" to make accurate calculations of terms of imprisonment, a duty that "requires it to correct known errors." Maguire v. New York State Division of Parole, 757 N.Y.S.2d 391 (A.D. 2003).[PDF]

Good Time

     Under Mississippi law, a claim challenging the forfeiture of earned good time credit accrued after the prisoner was notified of the forfeiture for an alleged violation of prison rules. The prisoner's failure to make any attempt within a statutory thirty-day time limit to challenge the forfeiture made his claim time-barred. Boler v. Bailey, No. 2002-CP-00838-COA, 840 So. 2d 734 (Miss. App. 2003). [PDF]

Inmate Property

     Ohio prisoner had no constitutional right to a typewriter to begin with, and therefore had no right to retain a memory typewriter with a five page memory, which had earlier been permitted, after state correctional officials altered the rules to only permit typewriters with a one-line memory or less. McClintick v. Lazaroff, #2002-1771, 786 N.E.2d 1284 (Ohio. 2003).

Mail

     Opening of incoming letter, marked "legal papers", but suspected of not being from an attorney, outside of the prisoner's presence, and inspection of it for contraband, which resulted in the finding of marijuana, did not violate the prisoner's Sixth Amendment right to counsel or his due process rights, even if it did violate a state administrative code section. State of Wisconsin v. Steffes, No. 02-1300-CR, 659 N.W.2d 445 (Wis. App. 2003).

     Prisoner's claim that an officer intentionally deprived him of one issue of a magazine to which he subscribed because the officer disliked the magazine's views, and lied about doing so, was sufficient to state a First Amendment free speech claim. Prisoner did not, however, state a valid claim for violation of his right to religious freedom, since, while the Pagan Revival magazine purported to have a religious theme, he did not claim that the magazine had anything to do with his religious practices or that his failure to receive it interfered with the exercise of his religion. Lindell v. Doe, #01-2527, 58 Fed. Appx. 638 (7th Cir. 2003).

Medical Care

     Trial court properly denied an injunction to a prisoner who claimed that prison officials were deliberately indifferent to his need for treatment for hepatitis C by withholding the preferred "Rebetron" drug therapy. There was evidence that treating the prisoner with this medication would be "counter-productive" and even dangerous based on his history of substance abuse and failure to enroll in a substance abuse treatment program. Before the appeals court, the prisoner produced documents showing the earlier completion of such a program and evidence that other similar prisoners were given the requested treatment without being required to participate in substance abuse treatment, raising the possibility that he will, on remand, be able to establish deliberate indifference or improper selective enforcement of the treatment policy. Conti v. Goord, No. 02-0084, 59 Fed. Appx. 434 (2nd Cir. 2003).

     Federal civil rights claim over medical care could not be based on mere disagreement over the proper course of medical treatment, but prisoner could pursue his claim as to whether the "repeated, foreseeable, and lengthy delays he experienced in getting his substitute blankets upon transfer to higher-security units of the prison rises to the level of deliberate indifference." Linderman v. Vail, No. 01-35684, 59 Fed. Appx. 180 (9th Cir. 2003).

Prison Litigation Reform Act: Exhaustion of Remedies

     Illinois prison officials failed to prove that plaintiff prisoner failed to exhaust his available administrative remedies on his federal civil rights lawsuit asserting that they violated his constitutional rights by failing to ship 99 boxes, containing over 2,800 pounds of his property to California after he was transferred there. Prisoner stated that he did not know, until after his transfer, that the material would not be shipped, and it was "doubtful" that he could use Illinois administrative remedies once he was in a California prison. Prisoner's federal lawsuit was barred, however, by his prior Illinois state court mandamus action seeking to force the shipment of the boxes, in which the state court had rejected his claim. Walker v. Page, No. 00-3990, 59 Fed. Appx. 896 (7th Cir. 2003).

Prison Rules and Regulations

     Prison rule prohibiting noncompliance with designated boundaries and schedules of living units and work assignments was sufficient to provide prisoner with adequate notice that his action in returning to the dining hall to eat a second breakfast when he was supposed to go to a medical area for a blood test was a violation of the rule. Court rejects prisoners due process challenge to discipline based on this rule violation. Nelson v. Hayden, No. 28031, 67 P.3d 98 (Idaho App. 2003). [PDF]

Prisoner Assault: By Inmates

     Prison officials were not liable for a "vicious beating" a prisoner suffered from an inmate in an adjoining cell who had previously threatened him. Defendant officials were never made aware of that threat, and the assailant's prior attack on another inmate had been against someone scheduled to testify against him, which was not the case in the immediate incident. Taylor v. Little, No. 01-5651, 58 Fed. Appx. 66 (6th Cir. 2003).

Prisoner Assault: By Officers

     Using a plastic medication box to beat back a prisoner's hand after he reached his arm through the trap in the door of his cell in violation of prison rules was not an excessive use of force. Officer's action only led to minor injuries and the force used was proportionate to the threat the prisoner's actions presented. White v. Matti, #02-2761, 58 Fed. Appx. 636 (7th Cir. 2002).

Prisoner Death/Injury

    Kansas prisoner could pursue claim against state for personal injuries he suffered while operating a road grader at a correctional institution and was not required under state law to exhaust his administrative remedies before filing suit, under applicable state regulation. K.A.R. 44-16-104. Bates v. State of Kansas, No. 88,757, 67 P.2d 168 (Kan. App. 2003).

Prisoner Discipline

     An investigation into a prisoner's report that he had been raped by his cellmate on multiple occasions provided substantial evidence to support a disciplinary determination that he was guilty of violating prison disciplinary rules against sexual activity and that the activity was consensual. Umber v. Murphy, 757 N.Y.S.2d 379 (A.D. 2003).[PDF]

     A prisoner could not be found guilty of unauthorized conduct or misuse of state property based on the presence of unauthorized files on computer disk he had handled. Prisoner had been authorized to use the disk to create files on the disk clearly identified as his, and the disk was in a common area where others had access to it. Bartley v. New York State Department of Correctional Services, 757 N.Y.S.2d 380 (A.D. 2003). [PDF]

Private Prisons

     Private corporation operating correctional facility was not liable for violating a prisoner's liberty interest by placing him in medium security status. Prisoner was not entitled to any particular status and the company's officials had explained the basis for the classification. Additionally, his placement in disciplinary segregation for committing a battery while in prison did not violate his rights when there was nothing "atypical" about the conditions in segregation. The city in which the prison was located could not be held liable for any alleged violation of the prisoner's rights when there was nothing to show that the city had any role in operating the prison. Byrd v. Cornell Corrections, Inc., No. 02-6316, 60 Fed. Appx. 191 (10th Cir. 2003).

Public Protection

     State of New York was not liable for robbery committed by an adjudicated juvenile delinquent who fled a foster home after he was released from a state youth correctional facility. Plaintiff crime victim did not show that the state youth correctional authorities had any duty to the robbery victim or any special relationship with him, so that liability could not be based on alleged negligence in failing to apprehend and return delinquent to custody after he violated the terms of his conditional release. Anton v. State of New York, 757 N.Y.S.2d 338 (A.D. 2003).

Sexual Misconduct

     Federal trial court sets aside jury's award of $1 in nominal damages and $30,000 in punitive damages to female prisoner who sued correctional officer who allegedly engaged in an inappropriate relationship with her, including taking photographs of her and writing her love letters. Plaintiff prisoner failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Her participation in the departmental investigation that led to the officer's resignation was not the same as pursuing available grievances on her own behalf, and the fact that money damages, the only thing she sought after his resignation, were not available under the grievance procedure did not render those procedures "unavailable." Hock v. Thipedeau, 245 F. Supp. 2d 451 (D. Conn. 2003).

Smoking

     Prisoner with high blood pressure was not subjected to cruel and unusual punishment by being housed in the same cell with smokers, particularly since prison officials twice transferred him to other cells upon his request, when it was proven that his cellmates were in fact smokers.  Taylor v. Boot, #02-1683, 58 Fed. Appx. 125 (6th Cir. 2003).

Telephone Access

     Department of Corrections telephone access regulations prohibiting three way or conference calls from correctional facility phones were properly adopted to prevent use of phone systems for illegal activities. Statements that a defendant made after being added to a phone call from an inmate to a co-defendant which the Department was monitoring were not "unlawfully" intercepted, when Department did announce to the initial parties to the call that their conversation would be recorded and attempted to prevent additional parties from being added to the call. Commonwealth v. Ennis, 785 N.E.2d 677 (Mass. 2003).

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

     Annual Report: 2003 Corrections Briefing Report, Kansas Department of Corrections (January 2003) 153 pgs. [PDF].

     Annual Report: "Rising to the Challenge: A Safer Texas Prison System" Annual Review 2002 (pdf - 1247 KB) Texas Department of Criminal Justice (March 2003).

     Article: "Prisoner Reentry: A Public Safety Opportunity," by John Larivee, chief executive officer of the Community Resources for Justice, Boston, Massachusetts. Remarks made by Mr. Larivee before the National District Attorneys' Association (NDAA) Crime Control Committee meeting in New Orleans, Louisiana, March 20, 2003. Vol. 37 The Prosecutor #3 pgs. 43-45 (May/June 2003). A discussion of the importance of programs to ensure that prisoners being released are encouraged to be "civil and productive members" of the community. Includes statistical information from a Massachusetts study and discusses the experience of the "Boston Reentry Initiative" carried out by a partnership of the Boston Police Department, the Suffolk County Sheriff's Department, the Suffolk County district attorney, probation, parole, local churches, social service agencies, and community groups.

     Guidelines: Clinical Practice Guidelines for Prevention and Detection of Infectious Disease. The National Institute of Corrections (NIC)  and the U.S. Department of Justice, Federal Bureau of Prisons, are making available information to help meet the requirements of the Correctional Officers Health and Safety Act of 1998, which requires that the Attorney General and the Secretary of Health and Human Services provide guidelines for infectious disease prevention and detection, and treatment of inmates and correctional employees who face exposure to infectious diseases in correctional facilities. The following clinical guidelines are all available in .PDF format: General Resources: Federal Bureau of Prisons Clinician Notes, October 2002. (PDF format, 88 pp.) Federal Bureau of Prisons Report on Infectious Disease Management, January 2001. (PDF format, 9 pp.) Infectious Disease Management Technical Reference Manual, January 1999. (PDF format, 115 pp.) Treatment and Clinical Practice Guidelines: Clinical Practice Guidelines: Detoxification of Chemically Dependent Inmates, December 2000. (PDF format, 44 pp.) Clinical Practice Guidelines for Diabetes, September 2002. (PDF format, 51 pp.) Clinical Practice Guidelines for High Cholesterol, June 2002. (PDF format, 36 pp.) Clinical Practice Guidelines: Management and Treatment of Viral Hepatitis, Revised February, 2003. (PDF format, 51 pp.) Clinical Practice Guidelines: Management of Asthma, November 2000. (PDF format, 37 pp.) Clinical Practice Guidelines: Management of Coronary Artery Disease, September 2001. (PDF format, 42 pp.) Clinical Practice Guidelines: Management of HIV Infection, February 2002. (PDF format, 57 pp.) Clinical Practice Guidelines: Management of Major Depressive Disorder, May 2001. (PDF format, 45 pp.) Clinical Practice Guidelines: Management of Gastroesophageal Reflux Disease (GERD) Dyspepsia, and Peptic Ulcer Disease, November 2001. (PDF format, 36 pp.) Clinical Practice Guidelines for Psychiatric Evaluations, March 2002. (PDF format, 16 pp.) Clinical Practice Guidelines for Social Work Professionals, May 2002. (PDF format, 20 pp.) Clinical Practice Guidelines: Treatment of Latent Tuberculosis Infection (LTBI) and Tuberculosis Disease, February 2001. (PDF format, 38 pp.) Addendum to Clinical Practice Guidelines: Treatment of Latent Tuberculosis Infection (LTBI) and Tuberculosis Disease, September 2001. (PDF format, 3 pp.) Clinical Practice Guidelines: Management of Varicella Zoster Virus Infections, October 2002. (PDF format, 16 pp.) Treatment Guidelines: Hypertension, Updated June 2002. (PDF format, 33 pp.)

     Publications: DOCS Today, a monthly publication of the New York State Department of Correctional Services, is available for download on the web, beginning with the January 2003 issue, through the current June 2003 issue, in PDF format.

     Report: "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks," (June 2, 2003) Report from the U.S. Department of Justice Office of the Inspector General on alleged problems in the way detainees confined after the September 11, 2001 events were handled at the Brooklyn, New York and Paterson, New Jersey detention facilities. [PDF] (13.2 MB)

     Statistics: Federal Detainees. Office of the Federal Detention Trustee: The total number of federal detainees increased by an average of 12% annually, from 25,675 at fiscal year-end 1994 to 63,711 at fiscal year-end 2002. The number of detainees under the jurisdiction of the U.S. Marshals Service increased from 18,231 to 43,118. The number under the jurisdiction of the Immigration and Naturalization Service increased from 7,444 to 20,653. Tables and figures at this link include information about Persons held in federal detention, by agency with jurisdiction, 1994-2002, Persons admitted to federal detention and incarceration and fiscal year-end population, 1994-2002, Detainees under the jurisdiction of the U.S. Marshals Service and the Immigration and Naturalization Service, by type of facility, fiscal years 1994-2002 and Number of federal detainees, by location of facility, 2002.

     Reference:

• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently-noted jail and prisoner law resources.