FEATURED CASES

WITH LINKS TO THE OPINIONS

Sheriff's refusal to transport a pretrial detainee to the courthouse for a civil personal injury case unrelated to his criminal case did not violate his right of access to the courts. Sheriff's action was not taken for a punitive purpose and had a rational relationship to a legitimate interest in keeping detainees in jail unless absolutely necessary.

     A pretrial detainee in a California jail had been involved in a two-car traffic accident months before his incarceration on totally unrelated charges. A collision with the other vehicle, which allegedly ran a red light, resulted in about $500 in damage to the detainee's car as well as injuries requiring approximately $9,000 in medical expenses, and the detainee filed a lawsuit seeking recovery against the other driver.

     The detainee was awarded $10,000 by an arbitrator, but rejected that award and the case was scheduled for trial. The trial court denied a motion that there be an order allowing him to attend the trial in person, since he was represented by a lawyer and his testimony could be provided by deposition. His lawyer subsequently withdrew, however, and the detainee was substituted as his own counsel.

     When the trial began, the detainee was not present, nor was anyone representing him, and a default judgment was entered against him. The prisoner sued the county and its employees, including the sheriff, for refusal to transport him to the courthouse for the trial of the case. He claimed that this refusal denied him a due process right of access to the courts.

     Rejecting this claim, a federal appeals court noted that the U.S. Supreme Court, in Lewis v. Casey, 518 U.S. 343 (1996), held that injury to a prisoner's right of access to the courts, to be the basis for a civil rights claim, must involve either the criminal charges on which the prisoner was incarcerated or else civil rights actions to "vindicate basic constitutional rights," such as those related to conditions of confinement. Prisoners are not guaranteed the "wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." Impairment of any other litigating capacity (other than criminal appeals, habeas actions, or lawsuits over conditions of confinement) are "simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."

    In other words, "a prisoner has no constitutional right of access to the courts to litigate an unrelated civil claim."

     The appeals court acknowledged that pretrial detainees, such as the plaintiff, have additional rights, such as the right not to be subjected to restrictions that "amount to punishment." But in this case, the plaintiff did not allege that the sheriff's failure to transport him to his civil trial was to punish him.

Keeping detainees in jail, rather than transporting them to court dates unrelated to their criminal charges or conditions of confinement, serves a legitimate penological interest. In fact, it goes to the very heart of that interest--to keep detainees detained unless absolutely necessary. The restriction is not excessive in relation to that purpose.

     Simmons v. Sacramento County Superior Court, No. 01-16309, 318 F.3d 1156 (9th Cir. 2003).

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

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Even if there was a triable issue of fact as to whether a correctional officer's decision to shoot a prison inmate in the leg during a disturbance which included an assault on another prisoner was malicious, the officer was entitled to qualified immunity since he could have reasonably believed that shooting this prisoner in order to stop the assault was a good faith effort to restore order.

     When a disturbance broke out in the yard at a California prison, a prisoner claims that he was attacked by a group of unarmed inmates, but took no violent action himself. A correctional officer observed another inmate lying on the ground while being kicked in the head by two other prisoners. The officer intentionally shot the first prisoner, after prisoners paid no attention to his shouted orders or those shouted by another officer. The shot prisoner filed a federal civil rights lawsuit seeking damages for alleged excessive use of force.

     The shot prisoner also disputed the officer's claim that he was one of the prisoners kicking the prisoner on the ground. The trial court denied the officer's motion for summary judgment on the basis of qualified immunity.

     A federal appeals court reversed, holding that the officer was entitled to qualified immunity.

     The court acknowledged that there would be a constitutional violation if the facts were as the plaintiff prisoner claimed--i.e., that he was doing nothing wrong, merely standing several feet from where other prisoners were kicking the inmate on the ground, but the officer nevertheless shot him intentionally.

     The appeals court rejected the plaintiff prisoner's argument that a prison official cannot act maliciously and sadistically while, at the same time, reasonably believing that his actions conform to clearly established law. For purposes of qualified immunity, the court noted, courts may not simply stop with a determination that a triable issue of fact exists as to whether prison officials acted unconstitutionally. The claim of qualified immunity therefore is not defeated simply because a triable issue of fact exists as to whether the officer's decision to shoot the plaintiff was malicious.

      Even if the officer's beliefs that the prisoner was involved in the kicking incident and that the prisoner on the ground was in danger of serious harm were mistaken, the court reasoned, he can still be entitled to qualified immunity. A reasonable official, standing in a tower located 360 feet away from the disturbance, as the officer was, could perceive that both the plaintiff and another inmate were kicking the prisoner on the ground and threatening him with serious injury or death, and that the prisoner on the ground was not capable of protecting himself, even if no kick was actually administered by the plaintiff.

The scenario may look different when gauged against the "20/20 vision of hindsight," but we must look at the situation as a reasonable officer in [this officer's] position would have perceived it. In that light, we believe that a reasonable officer could believe that shooting one inmate in the leg to stop an assault that could have seriously injured or killed another inmate was a good faith effort to restore order, and thus lawful.

     The defendant officer was therefore held entitled to qualified immunity.

     Marquez v. Gutierrez, No. 02-15017, 322 F.3d 689 (9th Cir. 2003).

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

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Jail officials did not violate prisoner's First Amendment rights by disciplining him for the use of insolent and threatening language in grievances that he filed. "True threats" are not protected at all under the First Amendment, and the purpose of the grievance procedure was to bring issues to the attention of jail authorities, not to provide a forum to make "disparaging, degrading" or abusive comments about jail staff members.

      A prisoner serving four consecutive one-year sentences in a Washington state county jail for four misdemeanor "stalking" convictions was twice sanctioned with ten days of disciplinary segregation and loss of ten days of good time for violation of jail rules. In both instances, the discipline was allegedly based on the language he used in written grievances that he filed. The prisoner argued that this discipline violated his First Amendment rights to free expression.

     In the first incident, the prisoner complained about a corrections officer slamming a door on a second cell in which he was keeping his legal papers. Asked whether he wanted to speak to a sergeant about his complaint, he stated that the sergeant was a "bitch and it would be a waste of time." He then created a written grievance stating that "my grievance is about the piss-ant officer slaming [sic] the door ... on me. ...The officer was being an asshole and appeared to be intentionally trying to give me a hard time for no reason, and would not open both my cell doors at the same time. I request the following resolution to my grievance. Fire this asshole before someone reacts to his attempts to provoke violence, correct this door problem immediately." He handed it to the corrections officer.

     The prisoner was charged with violation of a rule prohibiting making "flagrant, public statements which are degrading, ridiculing, abusive, insolent, defiant, obscene, and/or which promote disorder." He was found guilty.

     In the second incident, the prisoner was evidently angered by a corrections officer opening a piece of his legal mail in his presence and removing a staple from a document. He then filed a written grievance stating that the jail should "fire this prick because shitheads like him shouldn't be around prisoners," and that the officer should be fired "before his attitude gets him fucked up." He was again charged with violating the "defiance, insolence, abuse" rule, as well as for violating a rule against making threats against staff members. He was again found guilty.

     Upholding these results, an intermediate Washington state appeals court found that the prisoner's right to use the written grievance process was not at issue, and that the jail could not and should not retaliate against him for doing so. At the same time, the appeals court agreed that the purpose of the grievance procedure was to bring issues to the attention of jail officials, not to provide a forum for the making of "scandalous, indecent, or insolent" statements about corrections officers.

     Allowing such statements in the context of written grievances would "no doubt" result in a "veritable barrage of similar written 'grievances,'" the court reasoned, "filed not for the purpose of addressing prisoner concerns but for the purpose of venting frustration, resentment, and despair." The result of forbidding correctional authorities from sanctioning "insolence" such as that expressed by the prisoner in this case "would likely be the total or near-total frustration of the very legitimate penological purposes which are served by the regulation here at issue."

     Indeed, the court noted that language such as the prisoner used "would not be tolerated for an instant" if it were used in a filing addressed to the courts, whether filed by a prisoner or "for that matter, filed by a person who is not a prisoner," but would instead result in contempt and/or the striking of the "redundant, immaterial, impertinent, or scandalous matter."

     Additionally, as for at least one of the statements in the second written grievance, the hearing officer regarded it as a "true threat" against the officer, a threat of possible physical harm. "In the prison context, if not in most other settings, a reasonable person would foresee that the statements would be taken as a serious expression of an intention to inflict bodily injury."

     If the language constituted a "true threat," it was "unprotected by the First Amendment."

     The prisoner was not "wholly stripped" of his First Amendment rights while he was in jail, the court noted, but "his First Amendment rights were subject to limitation during that time because institutional goals and policies take top priority."

      In Re Parmelee, No. 47231-3-I, 63 P.3d 800 (Wash. App. 2003).

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

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Prisoner's removal from supervised release program for activities advocating the legalization of marijuana enjoined by federal trial court. Court finds that activities, including speaking to the press, passing out literature outside a courthouse, running a website, and running television commercials were all lawful actions protected by the First Amendment.

    A New Jersey prisoner was incarcerated after pleading guilty to charges of conspiracy to possess with intent to distribute marijuana, and was sentenced to ten years. He was then placed into an Intensive Supervision Program ("ISP") under which prisoners are released before the end of their sentences and are placed under "strict supervision."

     He was later given a warning that he was "violating the terms" of his ISP release after he gave an interview to a newspaper which resulted in the publication of an article. The prisoner claims that he was told not to speak to the press, which the ISP violation report states that he was only warned that speaking to the press might give the impression that he was promoting the use of marijuana, which under the terms of his release he was not permitted to do. He was against told not to speak to the press after it came to the attention of an ISP officer that he had given interviews to various Philadelphia newspapers.

     He was subsequently placed under electronic surveillance and home confinement after he was reported, in two newspapers, as having protested outside a county court house. When he again protested at the county court house a second time, passing out fliers regarding the legalization of marijuana and a child custody matter, he was arrested and incarcerated for violating the terms of his ISP release, specifically for refusing to comply with instructions that he "not advocate the use of marijuana."

     After he was returned to the ISP program, he produced, appeared in, and contracted with a communications company to air a series of commercials advocating marijuana use, according to the officers, or advocating the legalization of marijuana, according to the prisoner. The officers also noted that the prisoner was continuing to talk to members of the press and advocating either marijuana use or the legalization of marijuana. He was directed to refrain from running and updating his website, http://www.njweedman.com, and from soliciting funds for his political party, the Legalize Marijuana Party, through the website. Newspaper articles again appeared in a local newspaper, this time regarding the television commercials.

     He allegedly refused to answer questions from the officers regarding the website and commercials and invoked his Fifth Amendment right against self-incrimination, and he was again taken into custody and removed from the ISP program.

     He filed a federal civil rights lawsuit alleging that these actions violated his First Amendment rights, and constituted unlawful retaliation for his exercise of them.

     A federal trial court has ruled that the prisoner was entitled to a preliminary injunction reinstating him in the ISP program, as there was a likelihood he would be successful on the merits in showing that his First Amendment rights were violated.

     "There is no question that the conduct which led to the alleged retaliation was constitutionally protected," the court stated. Most of the infractions cited by the officers involved the prisoner either speaking to the press, protesting and handing out pamphlets outside of the courthouse, running a website, or producing and appearing in television commercials. "This behavior is clearly protected by the First Amendment, particularly since it primarily involved the Plaintiff's belief that marijuana should be legalized," which "involves a public issue and is explicitly the type of speech that the First Amendment is designed to protect."

     Other complained of infractions, the court found, such as attendance at an Alcoholics Anonymous meeting when he was confined to his home, failure to promptly notify the ISP officer when his first day of work was postponed, and failure to make progress towards the payment of his court ordered fines were "minor violations" for which it was "doubtful" that he would have been sanctioned by removal from the program. The "general timing" of his removals from the program and the "sheer quantity" of speech related complaints, "makes it obvious that the speech related activities were the substantial or motivating factors in the adverse action taken against him."

     The court found that there were "no legitimate penological interests in limiting the plaintiff's free speech right to advocate the legalization of marijuana."

Conditions imposed on released offenders or prisoners in general cannot be more broad than is necessary and the defendants here have not identified any justifications for restrictions on the plaintiff's ability to advocate for the legalization of marijuana. The defendants may have had a penological justification for limiting plaintiff's speech rights regarding the use of marijuana, but no attempt was made to delineate what would constitute appropriate speech.

     The court noted that the plaintiff had passed all drug tests since entering the program "and has not broken any laws. The complaints against him mainly consist of his use of peaceful protest as a means of promoting his viewpoint. There is little evidence that his activities have crossed the line and promoted the use of illegal drugs."

     Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302 (D.N.J. 2003).

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

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Trial court improperly granted summary judgment on prisoner's claim for "deliberate indifference" to his serious medical needs to a dentist who only provided him with dentures fifteen months after first prescribing them as medically necessary, and one month after prisoner filed suit.

     A federal trial court granted summary judgment to a dentist sued by an Alabama prisoner for deliberate indifference to his serious medical needs in allegedly unreasonably delaying the delivery of dentures that he prescribed for the prisoner as medically necessary. A federal appeals court has concluded that the trial court's decision was erroneous.

     The prisoner had only two lower teeth when he entered the Alabama prison system in June of 1999, a condition that made it painful for him to consume hard foods and forced him to improvise a soft diet consisting of foods that he could ingest by using only his tongue and the upper part of his mouth. He also had difficulty closing his mouth without having his two lower teeth slice into his upper gums, causing his gums to bleed, and often experienced severe soreness and swelling in his gum, and his condition also led to weight loss.

     During a visit to a prison dentist in October of 1999, the dentist prescribed a complete denture for the prisoner's upper mouth and a removable partial denture to fit over the prisoner's two remaining teeth for his lower mouth. He also began the process of constructing the dentures by taking an impression of the prisoner's mouth.

     The prisoner allegedly "angered" the dentist by complaining the following month about the delay in completing the dentures, saying that he did not know of any dentist "in the free world" who took longer than thirty days to provide dentures. The dentist allegedly refused to meet with the prisoner for several months, and the prisoner repeatedly suffered bleeding gums and other problems. Ultimately, he filed a federal civil rights lawsuit over the delay in December of 2000, seeking an injunction ordering that his dentures be completed and delivered. The dentures were then delivered on January 2, 2001, "nearly fifteen months" after the dentist had prescribed them as medically necessary, but less than one month after he filed suit.

     The appeals court had little difficulty in finding that the prisoner's obtaining of dentures represented a "serious medical need." While not saying that merely having few or no teeth and a definite need for dentures "per se" constitutes a serious medical need in each case, in this prisoner's case, the evidence showed "pain, continual bleeding and swollen gums, two remaining teeth slicing into gums, weight loss," and other medical problems.

     The appeals court also found that there was evidence from which a fact finder could rule that the dentist acted with "deliberate indifference" to this serious medical need. The dentist had knowledge of the prisoner's need for the dentures, and even prescribed them. There were long periods of time during which the prisoner received no dental care.

     While the prisoner's condition may not have required "immediate" attention, his claim survived summary judgment, the court ruled, "given his recognized need for denture treatment, the nature of his continuing problems, the sheer length of the delay involved, and the lack of any reasonable explanation for the inordinate delay in this case." No "reasonable explanation" for the delay was offered, the court noted.

     The court found that, drawing all reasonable inferences in the prisoner's favor, the evidence would support a jury finding that the dentist "purposefully refused to treat or see" the prisoner for a considerable period of time after he had an argument with the prisoner during the November 1999 visit and told the prisoner that he was "sick of being bother[ed] with [him]." There was therefore a genuine issue of fact as to whether the dentist acted with deliberate indifference to a serious medical need.

     The appeals court did uphold, however, summary judgment in favor of a nurse who was not shown to have had subjective knowledge of a serious risk of harm to the prisoner.

     Farrow v. West, #01-13846, 320 F.3d 1235 (11th Cir. 2003).

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Federal appeals court rules that prisoner satisfied the "exhaustion of available administrative remedies" requirement sufficiently by alleging that he was unable to timely file an initial grievance because of his broken hand. Appeals court vacates dismissal of prisoner's civil rights lawsuit for damages, based on his broken hand from slip and fall in prison dining area.

     A Texas prisoner sued a number of correctional officials for compensatory and punitive damages on the basis of his slip and fall on some unseen water in the prison's dining area while he was working in a food service assignment. He suffered multiple fractures, including a broken hand, and asserted that the broken water pipe that caused the puddle had been on the maintenance repair list "for months." He also alleged that there were no posted warning signs near the puddle, and that the defendants had failed to protect him from the risk of injury in violation of his constitutional rights.

     When asked whether he had exhausted both of two available stages of the prison's administrative grievance procedure, however, he said no. He explained that at the time of the accident, he could not write because his writing hand was broken and that, when his hand healed, he submitted a grievance. The grievance, however, was deemed untimely and was sent back to him unprocessed. He then proceeded with his federal civil rights lawsuit.

     The trial court dismissed the lawsuit without prejudice for failure to exhaust available administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). The prisoner then again filed a step 1 grievance form with the prison, that was returned because the time period for filing a grievance had expired. The prisoner returned to the trial court, arguing that he had now exhausted all "available" administrative processes, and the lawsuit was again rejected.

     Vacating and remanding the trial court's decision, a federal appeals court concluded that, "under the circumstances," the prisoner had sufficiently alleged that, prior to filing his lawsuit, "he exhausted the administrative remedies that were personally available to him."

We, of course, do not hold that an untimely grievance in and of itself would render the system unavailable, thus excusing the exhaustion requirement. Such a holding would allow inmates to file suit in federal court despite intentionally evading the PLRA's exhaustion requirement by failing to comply with the prison grievance system. We emphasize that our holding is limited to the narrow facts of this case. More specifically, administrative remedies are deemed unavailable when (1) an inmate's untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the inmate's subsequent attempt to exhaust his remedies based on the untimely filing of the grievance.

     The court distinguished an earlier case in which it rejected a blind inmate's claim that he should be excused from exhausting his available administrative remedies because of his lack of vision, Ferrington v. Louisiana Dept. of Corrections, 315 F.3d 529 (5th Cir. 2002). [PDF]. In that earlier case, the court noted, it concluded that the blindness could not have prevented him from exhausting his available remedies, since it did not prevent him from filing a federal civil rights lawsuit, appealing a disciplinary hearing or filing other grievances.

     Days v. Johnson, #02-10064, 322 F.3d. 863 (5th Cir. 2003).

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Prisoner's complaint about being compelled to work in cold weather without warm clothing, or in hot, humid weather despite his high blood pressure did not qualify as a claim of imminent danger of serious physical harm coming under an exception to the "three strikes" rule of the Prison Litigation Reform Act barring access to courts as a pauper following the filing of three or more frivolous lawsuits.

     An Arkansas prisoner filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 against two staff members of the facility in which he was incarcerated, claiming that they violated his right to be free of cruel and unusual punishment under the Eighth Amendment by forcing him to work in thirty-degree weather without warm clothing, and to work outside in summer in humid, 98-degree weather despite his high blood pressure condition.

     The defendants submitted evidence on the first claim that the prisoner came to work without warm clothing, quit working before staff could retrieve a coat for him, and was placed on disciplinary review status for refusing to work. On the second claim, the defendants submitted evidence that the prisoner quit working, was again put on disciplinary review status, and showed no signs of physical distress that day. Additionally, his medical records showed that he saw a nurse the next day and made no complaint consistent with his claim that he had quit working because he feared a heart attack or stroke from working in the heat.

     The trial court granted summary judgment for the defendants on the basis of qualified immunity on the first claim and found that the prisoner had failed to first exhaust his available administrative remedies on the second claim.

     A federal appeals court affirmed, but found that the trial court had erroneously allowed the plaintiff prisoner to proceed as a pauper both at the trial level and on appeal despite having previously filed at least three frivolous civil lawsuits. The court noted that the Prison Litigation Reform Act enacted what is commonly referred to as the "three strikes" provision, codified at 28 U.S.C. Sec. 1915(g). Under this statute, an inmate who has had three prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim may not proceed in a civil action as a pauper "unless the prisoner is under imminent danger of serious physical injury."

     The appeals court found that the claims advanced by the prisoner did not constitute the type of "imminent danger of serious physical injury" qualifying for this exception to the "three strikes" rule. It noted that the imminent danger of serious physical injury must exist at the time the complaint or the appeal is filed, "not when the alleged wrongdoing occurred."

     Additionally, the court stated, "the exception focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct."

     While the court stated that its "normal disposition" would be to remand the case to the trial court to give the plaintiff prisoner the opportunity to reinstate his lawsuit by paying the filing fee, in this case, it believed that a careful review of the record showed that the dismissal of the prisoner's claims was properly granted for the reasons stated.

     Martin v. Shelton, No. 02-2770, 319 F.3d 1048 (8th Cir. 2003).

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

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Correctional officers assessed $15,000 in compensatory and $30,000 in punitive damages for allegedly using excessive force to restrain 60-year-old prisoner after refusing to look at his written medical restriction offered in explanation for why he was sitting rather than standing in medical clinic's waiting area.

     A former prisoner at a Kansas correctional facility had suffered a knee injury and had a written medical restriction indicating that he should not engage in "prolonged standing." When he went to the prison medical clinic's waiting area to get his pain medication one morning, he had been sitting waiting for approximately 15 minutes when a correctional officer approached him and told him to stand in the medication line with the other prisoners or else leave.

     The prisoner refused to do so, explaining that he had a written medical restriction to avoid prolonged standing, which he showed to the officer. The officer called for assistance and two other officers came to the area, after which one of them repeated the order to stand in line or leave. When he attempted to show this officer the written medical restriction, he was allegedly bumped in the chest by the officer, who grabbed him, whereupon both he and the officer fell to the floor.

     The other two officers assisted in restraining the prisoner, and one allegedly grabbed his bad left leg, folded it over his right leg, and leaned his weight on it--causing "excruciating pain." The prisoner, who is 60 years old, was then put into handcuffs which allegedly were "excessively tight and caused severe pain." The prisoner allegedly did not resist restraint, become agitated or aggressive in response to the officers' orders, push anyone, or raise his arm. The prisoner alleges that before they used force on him, all three officers knew that he had problems standing for prolonged periods of time because of his knee injury. They allegedly refused to examine his written medical restriction, or ask anyone about its validity, and another prisoner who attempted to tell one of them that this inmate had always been allowed to sit in the waiting room until the line was shorter was allegedly told to "shut up."

     The trial court awarded a total of $15,000 in compensatory damages and $30,000 in punitive damages against the three officers. The three officers are jointly and severally liable for the compensatory damages and were ordered to each pay $10,000 of the punitive damages. The court ruled that the force used was excessive under the circumstances and was not necessary to maintain discipline. Further, the prisoner was not required to establish that he suffered "significant" or "permanent" injuries from the use of force, since the use of force in a "malicious" and "sadistic" manner to "cause harm" to a prisoner violates the Eighth Amendment prohibition on cruel and unusual punishment even if "significant injury" does not occur.

     One of the three officers, who allegedly did not himself use force against the prisoner, was still liable on the basis of his failure to intervene, since he was present, had an opportunity to intervene, and had "actual knowledge" of the risk to the prisoner's safety from the other two officers' actions.

     The amount of damages awarded, the court found, were warranted in light of the fact that the prisoner did receive injuries requiring medical treatment, including a shoulder injury, wrist swelling, and a contusion to his already injured knee.

     Jackson v. Austin, 241 F. Supp. 2d 1313 (D. Kan. 2003).

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Washington State Department of Corrections liable for $22 million to estate of driver killed in collision with offender under Department's community supervision who was driving stolen vehicle. Question of whether Department's failure to take action over offender's violations of conditions of supervision was a cause of the driver's death was for the jury, intermediate appeals court holds.

     An intermediate state of Washington appeals court has upheld a $22 million jury award against the state Department of Corrections for the death of a driver killed in a collision with an offender who was under the Department's community supervision. The offender, at the time of the accident, was driving a stolen vehicle and had sped through a red light and struck the driver's vehicle, killing her, and the complaint alleged that the Department had been negligent in supervising him.

     The damages awarded included $793,390 in economic damages for the present value of the decedent's lifetime earnings, $437,500 as the present value of her services to her family, $222,755 for her husband's loss of income in caring for their four minor children, and $18 million to the four children for the loss of their mother. The appeals court rejected the argument that the award of damages was excessive.

     Evidence in the case indicated that the offender had numerous violations of the terms of his supervision which were not reported, and that he had "completely failed" to fulfill the court-ordered supervision requirements. He failed to report for community service he was to perform, and the community corrections officer assigned to make visits to his home was unable to find him at home to make twice monthly home visits. He also failed to meet other obligations such as paying certain financial obligations for restitution, undergoing domestic violence counseling or finding a job.

     In an incident prior to the fatal accident at issue, the offender was arrested for possession of stolen property (the car he was driving), driving a car with a suspended license, and failure to sign a notice of infraction. Following the arrest, he failed to report to a meeting with his community corrections officer. He also went to a medical center emergency room complaining of auditory and visual hallucinations and paranoia and was voluntarily admitted to a Psychiatric Intensive Care Unit, being diagnosed with bipolar affective disorder with psychosis.

     Despite all this, and the imposition of 39 days of additional jail time, the offender was kept on community supervision. He became homeless, failed to comply with a court-ordered condition of signing a release of his mental health records to the community corrections officer, and faced additional legal difficulties. By the date of the fatal accident, he had four convictions for driving with a suspended license, two convictions for possession of stolen property, and one theft conviction, as well as a driving record listing approximately 28 violations for offenses including driving without a license, seat belt law violations, driving without liability insurance, speeding, failing to properly signal, a defective muffler, and defective equipment. He never did comply with the court order to sign a release allowing his community supervision officers to see his mental health treatment records.

     The appeals court ruled that a special relationship existed between the offender and the Department of Corrections which imposed a duty on the Department to protect the deceased driver against foreseeable dangers posed by the offender, and that a clear public policy existed for imposing liability on the Department for its allegedly lax supervision.

     There was evidence, including testimony from a former community corrections officer, that a reasonable officer would have noted the offender's violations before the fatal accident, and that if the Department had obtained a bench warrant for the offender, he would have been in jail when the driver was killed in the accident. This raised a factual issue for the jury as to whether the Department's negligent supervision was the cause of the driver's death, and whether the harm that occurred was foreseeable.

     The appeals court rejected the defendant Department's argument that jury instructions by the trial court were flawed when the jury was told that the community corrections officer was legally responsible for reporting the offender's violations of the conditions of his supervision within 30 days, since this was an accurate reflection the Department's own written directives and procedures. The jury was correctly told, the appeals court held, that the officer's breach of the directive could be considered as evidence of negligence.

     The appeals court also rejected the Department's argument that a share of the blame and liability for the death should be allocated to the offender's mental health providers, in the absence of any competent medical expert testimony on this issue.

     Joyce v. State of Washington, Department of Corrections, #26499-4-II, 64 P.3d 1266 (Wash. App. 2003).

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Admitted policy of using race as a factor--even the dominant factor--in assigning new inmates with their initial cell mate for a 60 day period did not constitute racial discrimination in violation of the right to equal protection.

     An African-American prisoner in the California Department of Corrections (CDC) has been housed, at various times, in at least four correctional facilities in the last sixteen years. At each facility, he was doubled-celled with another African-American inmate. He filed a federal civil rights lawsuit against state prison administrators, claiming that they had a policy of using race as a factor in assigning cellmates, and that this constituted racial discrimination in violation of the right to equal protection.

     A federal appeals court has rejected this argument, upholding summary judgment for the defendant prison administrators on the basis of qualified immunity. Rather than even reach the issue of whether the administrators were entitled to qualified immunity, however, the appeals court simply found that the policy was not a constitutional violation.

     Evidence in the case showed that when an inmate arrives at a California correctional institution, either as a transfer from another facility or as a new inmate, he is initially housed in a reception center, and goes through a classification process evaluating his physical, mental, and emotional health, as well as being given a battery of tests and asked what vocational and educational goals he wants to accomplish.

    The correctional officials review the inmate's history in jail or any previous commitments to determine his security needs and classification level, as well as looking to see if the inmate has any enemies in the prison, such as people who testified against him in the past or in his criminal case, co-defendants, or inmates with whom he may have had prior disputes.

     To determine the double-cell housing placement during the 60 days spent at the reception center, the department:

[...] looks at several factors including, but not limited to, gender, age, classification score, case concerns, custody concerns, mental and physical health, enemy situations, gang affiliation, background, history, custody designation, and race. Although race is only one of many factors, it is a dominant factor; according to the CDC, the chances of an inmate being assigned a cellmate of another race is "[p]retty close" to zero percent. The CDC considers race when making an initial housing assignment because, in its experience, race is very important to inmates and it plays a significant role in antisocial behavior.

     Inmates are placed in four general ethnic categories: black, white, Asian, and other. Within each of these categories, the evidence showed, officials at the reception center further divided inmates. For example, Japanese and Chinese inmates are generally not housed together, "nor are Laotians, Vietnamese, Cambodians, and Filipinos." Hispanics from Northern California and Hispanics from Southern California are not housed together because, "in the administrators' experience, they tend to be at odds with one another."

     The primary motivation for the policy is to avoid racially based conflict and violence. While the rest of the prison is fully integrated--with no distinction based on race as to jobs, meals, yard and recreation time, and vocational and educational assignments, according to the defendant officials, "the confined nature of the cells makes them different from the other areas of the prison":

* Staff cannot see into the cells without going up to them, and inmates are capable of placing coverings over the windows so that staff cannot see in them at all.

* nmates are confined to their cells for much of their day.

* Because of the current levels of racial violence occurring in areas where the staff can easily observe the inmates, the administrators are concerned that they would not be able to protect inmates who are confined in their cells.

     Administrators believe that they need 60 days to analyze each inmate on an individual basis to determine whether the inmate poses a danger to others. After that time period, the inmate is either given a permanent housing assignment or transferred to another facility to go through the same process again. Inmates may be placed in a single cell or transferred to a dormitory based on factors such as security classification.

     Inmates considered "nonviolent" may be assigned to a dormitory, where inmates of "all races are housed together. Race is not a factor to determine who is assigned to a dormitory, "but within each dormitory" the department "attempts to maintain a racial balance so as to reduce the likelihood of racial violence."

     In upholding this policy, the appeals court noted that the "admitted policy" of considering race in making assignments of inmates to their initial cell mates was "suspect on its face," and the prisoner, in challenging it on equal protection grounds was therefore not required to prove "a discriminatory intent or impact."

     In this instance, however, the appeals court found that there was a valid rational connection between the policy of using race as a factor and the legitimate penological interest of protecting the safety of inmates and staff members. Further, the policy was "neutral" in that it did not provide any "advantage or disadvantage" to a particular race, and the policy was limited to a 60 day period.

     The appeals court accepted as legitimate the defendant officials' concerns that prohibiting race as a factor in this instance would have a "ripple effect" of not only increasing the level of violence within the cells, but in the common areas as well."

     The court rejected the proposed alternative of attempting to screen inmates on the basis of professed gang affiliation or by examining the inmates' racial animus or history of interracial violence. "There is little chance that inmates will be forthcoming about their past violent episodes or criminal gang activity so as to provide an accurate and dependable picture of the inmate." Further, the racial make-up of individual inmates of the new prison "may cause a previously benign inmate to become potentially dangerous," so that administrators "cannot accurately gauge an inmate's propensity for racial violence without first observing him in this new environment."

     Indeed, the appeals court even suggested that the "failure to take race into consideration in cell assignments could be considered 'deliberate indifference' to prisoners' safety and could itself constitute a constitutional violation."

To reduce its liability under the Eighth Amendment and to protect inmates, the CDC crafted a policy, assigning cell mates largely along racial lines for a limited time, so as to decrease the risk of racial violence that the administrators are aware exists. Certainly, this is a reasonable response in light of the conflicting responsibilities that the CDC must balance. Although there may be many ways in which to achieve the state's objective in reducing racial violence in the CDC, the path chosen by the State of California is reasonably related to the administrators' concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different and we must defer our judgment to that of the prison administrators until presented evidence demonstrating the unreasonableness of the administrators' policy.

     Because the plaintiff prisoner failed to prove that a constitutional violation was present, "we need not reach the ultimate question of whether the CDC administrators are entitled to qualified immunity," the court concluded.

     Johnson v. State of California, No. 01-56436, 321 F.3d 791 (9th Cir. 2003).

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Correctional rule prohibiting the smoking of tobacco did not violate Native American prisoner's right to practice his religion despite his belief that the smoke carries his prayers and would purify his body and spirit. There was an overriding compelling interest in eliminating tobacco in prisons, related to promoting health, reducing litigation, reducing medical costs, and maintaining internal security.

     The Idaho Department of Correction adopted a policy to make the state's prisons tobacco-free environments. An Idaho prisoner who practices a Native American religion challenged this policy. He claimed that tobacco is an "offering and sacred token to Mother Earth and Grandfather Sky, and that tobacco smoke carries his prayers." He stated that he desired to smoke tobacco "for the purification of body and spirit and to keep away evil and sickness." He claimed that the use of tobacco is an "absolute tenet" of his religious belief and practice, so that the policy violated his right to exercise his religion under Idaho's Free Exercise of Religion Act, Idaho Code Sec. 73-401 et seq.

     That statute prohibits the imposition of a substantial burden on the exercise of religion only if it can be demonstrated that the application of the burden is both "essential for further a compelling governmental interest," and "the least restrictive means of furthering that compelling governmental interest."

     An intermediate Idaho appellate court found that the state had demonstrated "beyond any genuine dispute" that it had compelling interests in eliminating tobacco in prisons, that the tobacco-free policy is essential to those interests, and that the policy is the least restrictive means to further those interests.

     The state submitted evidence that there were compelling interests in prohibiting tobacco to promote public health, provide an environment free from second-hand smoke, reduce litigation related to second-hand smoke, protect buildings against property damage, and "curtail rising medical costs." As to whether the policy is essential to its interests and the least restrictive means to further them, the state submitted evidence that it is essential to:

[...] eliminate even tobacco that is requested for religious practices in order to maintain internal security and control the black market for tobacco. The state points out that the policy allows Native Americans to smoke other substances in their religious activities, including kinnikinnik, cedar, sage, and sweetgrass. It also provided evidence that if [the prisoner] were permitted to have any tobacco it would jeopardize his safety, would be a significant burden on staff and resources to regulate such tobacco use, would compromise prison staff, and would expose other inmates and staff to second-hand smoke.

     The appeals court found that the plaintiff prisoner had failed to develop any evidence that disputes that the state's interests are compelling, that the tobacco-free policy is essential to its interests, and that the policy is the least restrictive means of furthering those interests, so that the state was entitled to judgment as a matter of law, and the trial court did not, therefore, err, in granting summary judgment for the defendant.

     Roles v. Townsend, No. 28073, 64 P.3d 338 (Idaho App. 2003).

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Strip search of male prisoner in the presence of female correctional officers could constitute cruel and unusual punishment in violation of the Eighth Amendment if female officers were, as prisoner alleged, "invited spectators" and the search was carried out in a manner designed to humiliate and demean him. Federal appeals court rules that provision of Prison Litigation Reform Act barring claims for mental or emotional injuries without a showing of physical injury did not apply, in this case, to bar claims for nominal or punitive damages.

     A federal appeals court has agreed with correctional officials that a strip search of a male prisoner in the presence of female correctional officers is not per se a violation of the prisoner's rights or cruel and unusual punishment in violation of the Eighth Amendment when it is done for a legitimate penological reason.

     At the same time, it overturned a trial court's dismissal of the prisoner's lawsuit for failure to state a claim. The appeals court noted that the male prisoner claimed that he was strip searched in front of female officers, that those conducting the search and/or those observing made "explicit gestures" during the search and forced him to perform "sexually provocative" acts, and that the female officers were "invited spectators." Those conducting the search allegedly ignored the prisoner's plea to do so in a more private area, and ordered him to strip directly in front of several female guards who "had no official role in conducting the search.

    During the search, the male and female officers allegedly laughed at him, made "sexual ribald comments," and "pointed their sticks towards his anal area" while he bent over and spread his buttocks to permit visual inspection for contraband. The prisoner additionally claimed that a warden and assistant warden observed the search but took no corrective action.

     "These allegations, if true," the court concluded, "can only lead to the conclusion that the prison guards conducted the strip search in a manner designed to demean and humiliate" the prisoner, "and we therefore conclude that he sufficiently states a claim under the Eighth Amendment."

     Because the prisoner did not claim to have suffered any physical injury, the court also considered the issue of whether 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act, barring recovery for mental or emotional injuries without a prior showing of a physical injury barred the lawsuit altogether, as the Illinois Attorney General (appearing as amicus curiae in the case) argued.

We cannot agree. This contention if taken to its logical extreme would give prison officials free reign to maliciously and sadistically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process. Clearly, this argument sweeps broadly, and there is no longer room for the position the Attorney General espouses.

     The statute, the court reasoned, may limit the relief available to prisoners who cannot allege a physical injury, but it does not bar their lawsuits altogether. Nominal damages may be awarded for a violation of a constitutional right in the absence of a showing of a right to compensatory damages. And the court reasoned that the statutory provision cited also did not foreclose a claim for punitive damages. Accordingly, the prisoner, who had stated a possible claim for an Eighth Amendment violation, could pursue claims for both nominal and punitive damages, the court ruled.

     Calhoun v. Detella, #98-2894, 319 F.3d 936 (7th Cir. 2003).

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Access to Courts/Legal Info

     Michigan prison inmates did not have a constitutional right to continue to have their legal counsel in a class action lawsuit against prison officials, Prison Legal Services of Michigan, housed in offices in trailers on prison grounds. Prison officials had a legitimate interest in exercising its judgment over the management of the prison, including making decisions about the number of auxiliary trailers it could safely deploy on the premises. Cain v. Department of Corrections, No. 239116, 657 N.W.2d 799 (Mich. App. 2002).

Defenses: Absolute Immunity

     Hearing officer's alleged action of disclosing a prisoner's identity as a confidential informant without first consulting the warden, even if it exceeded her authority, could not be the basis for liability in the prisoner's federal civil rights lawsuit, as she was entitled to absolute immunity for discretionary actions taken in her official capacity. Williams v. McGinnis, #02-1336, 57 Fed. Appx. 662, 2003 U.S. App. Lexis 1879 (6th Cir. 2003).

Defenses: Statute of Limitations

     Statute of limitations on former prisoner's civil rights claim against police officers for allegedly coercing a witness to falsely testify against him in a murder case was not tolled (extended) under Illinois law by either his incarceration or the finding that he had a mental disability for purposes of Social Security benefits (when there was no showing that he was unable to manage his own affairs). Chatmon v. Easton, #02-2377, 56 Fed. Appx. 261 (7th Cir. 2002).

Employment Issues

     Correctional officer allegedly forced to quit after he reported a co-worker's misconduct in playing cards with a group of inmates stated a possible claim for violation of his First Amendment rights based on tolerance of supervisors of harassment of him for making the report, since tolerance of such conduct was a "matter of public concern." Baron v. Hickey, 242 F. Supp. 2d 66 (D. Mass. 2003).

Escape

     Prisoner who escaped while on work release was barred from appealing a judgment denying his claim to recover his wages, which were paid to the correctional institution and treated as forfeited or abandoned due to his escape. Intermediate Missouri appeals court rules that "escape rule" applies in that state to allow a court to dismiss either a criminal appeal or an appeal in a civil case based on a prisoner's escape from custody. Spencer v. Ouverson, No. WD 60109, 98 S.W.2d 69 (Mo. App. W.D. 2002).

Extradition

     Prisoner's claim for damages and declaratory relief challenging the validity of his extradition from Georgia to New York to serve a sentence on a New York conviction without a signed extradition warrant, a hearing or a waiver of his extradition rights was not barred by the fact that his conviction or sentence had not previously been invalidated. The claim was, in essence, for a violation of the prisoner's right to procedural due process and did not depend on the validity of the underlying conviction and sentence, so the principles stated in Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997) did not bar the lawsuit. Harden v. Pataki, #01-15186, 320 F.3d 1289 (11th Cir. 2003).

False Imprisonment

     There was a material issue of fact as to whether a classification officer and an assistant warden acted with deliberate indifference to the issue of whether a prisoner was being kept confined beyond the expiration of his sentence, violating his constitutional right to a timely release from prison, after prisoner filed a grievance allegedly informing them of the correct commencement date of his sentence. McCurry v. Moore, 242 F. Supp. 2d 1167 (N.D. Fla. 2002).

Medical Care

     Estate of detainee who died after he was removed from hospital following his arrest against medical advice stated a claim against county under Alabama law for allegedly failing to fund adequate medical care for prisoners in county jail and for deliberate indifference to serious medical needs in violation of civil rights. Pre-trial detainee was being treated for renal failure and pneumonia in hospital, and his condition worsened after his removal, leading to treating physician's recommendation that he be re-hospitalized, a request which the sheriff allegedly refused. Gaines v. Choctaw County Commission, 242 F. Supp. 2d 1153 (S.D. Ala. 2003).

     Inmate alleged sufficient facts to state a claim against prison superintendent and health services manager for acting with deliberate indifference to his serious medical needs arising from spastic partial paralysis causing his foot to flex and his toes to curl into a claw and related chronic pain management issues. Defendants allegedly knew of inadequate care but did not take action to prevent further violations of prisoner's rights. Lavender v. Lampert, 242 F. Supp. 2d 821 (D. Ore. 2002).

Overcrowding

     Federal trial court did not have authority, under Prison Litigation Reform Act, to enjoin further transfer of female prisoners eligible for state incarceration from county jails to an allegedly overcrowded Alabama state prison, since only a three-judge panel may issue "prisoner release orders," and only under certain circumstances. 18 U.S.C. Sec. 3626(a)(3). Further, the requested order would conflict with an existing order by a state court in pending litigation in which the state officials had been ordered to accept "state-ready inmates" sent from county jails. At the same time, the defendant prison officials' alleged "lack of funds" did not excuse them from presenting a satisfactory plan to alleviate problems of overcrowding at a state women's prison previously found to violate inmates' Eighth Amendment rights. Laube v. Haley, 242 F. Supp. 2d 1150 (M.D. Ala. 2003).

Parole

     Claim that an amendment to a Delaware parole statute allegedly extending the time between parole reconsideration hearings violated prisoners' rights was frivolous since neither the parole statute nor the due process clause gave prisoners a protected liberty interest in a hearing at a particular time. Ross v. Snyder, 239 F. Supp. 2d 397 (D. Del. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies

     Prisoner could decide, under New York state regulations, not to appeal an adverse administrative decision of his prison grievance, but that decision forfeited his right to bring a federal civil rights lawsuit, under the requirement in the Prison Litigation Reform Act (PLRA) 42 U.S.C. Sec. 1997(e) that available administrative remedies first be exhausted. U.S. Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002) (exhaustion of remedies requirement applies to all prisoner seeking redress for prison circumstances or occurrences) applies retroactively to claims filed before the ruling. Santos v. Hauck, 242 F. Supp. 2d 257 (W.D.N.Y. 2003).

     Requirement that a prisoner exhaust available administrative remedies before pursuing a federal civil rights lawsuit applies to pretrial detainees. Plaintiff prisoner's lawsuit seeking his release from special housing unit rejected for failure to exhaust administrative remedies. Additionally, despite the allegedly non-violent nature of the crime with which the detainee was charged, the government presented evidence asserted to link him in some way to individuals implicated in the attacks of September 11, 2001, raising significant security issues with regard to the conditions of his pre-trial incarceration. United States of America v. Al-Marri, 239 F. Supp. 2d 366 (S.D.N.Y. 2002).

Prison Litigation Reform Act: Mental Injury

     Prisoner could not pursue a federal civil rights claim against correctional officials for failure to protect him against other inmates who allegedly threatened him with harm because his crime involved a child when he could not show that he suffered physical harm as a result of the alleged failure to protect. A provision of the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) prohibits recovery for mental or emotional injury suffered in custody without a prior showing of physical injury. Wolff v. Hood, 242 F. Supp. 2d 811 (D. Ore. 2002).

Prison Litigation Reform Act: "Three Strikes" Rule

     Trial judge was not bound by the ruling of another judgment, in another case involving the same plaintiff prisoner, that a prior case with some claims dismissed as frivolous and others dismissed for failure to exhaust administrative remedies did not count as a "strike" for purposes of the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g) prohibiting a prisoner for proceeding as a pauper following three prior frivolous claims. Judge rules that it did, in fact, constitute a "strike." Clemons v. Young, 240 F. Supp. 2d 639 (E.D. Mich. 2003).

     Prisoner who had filed over 200 prior civil actions in federal courts, many of which were dismissed as frivolous, was barred by the "three strikes" rule of the Prison Litigation Reform Act, 28 U.S.C. Sec. 1915(g), from proceeding as a pauper in his most recent filing when he could not show that he was in "imminent danger of physical injury" at the time the complaint was filed, which is the sole exception to the "three strikes" rule. Court notes that allegations of past physical danger are insufficient to invoke the exception. Judd v. Furgeson, 239 F. Supp. 2d 442 (D.N.J. 2002).

Prisoner Assault: By Officers

     Jury's verdict in favor of defendant correctional officers in prisoner's lawsuit claiming that they used excessive force against him upheld. Based on the evidence, the jury could reasonably have believed that the officers' testimony was more credible than the inmate's, and that they used only the force necessary to respond to the prisoner's "physical provocations" during the four incidents at issue. Pickett v. Lindsay, #01-3755, 56 Fed. Appx. 718 (7th Cir. 2002).

Prisoner Discipline

     The imposition of discipline on a prisoner for violating the telephone policy by phoning a former inmate on home confinement was a violation of his due process rights when he did not have fair notice that the policy applied to phoning former prisoners confined at home as well as to those now in halfway houses. Seehausen v. Van Buren, 243 F. Supp. 2d 1165 (D. Ore. 2002).

     Disciplinary conviction of prisoner for violation of a rule against making threats to prison staff members was supported by substantial evidence, including testimony of officer who prepared a misbehavior report after witnessing the conduct. The disputed issue of whether the prisoner intended a threat by suggesting, to an officer, that they "go outside" was an issue of credibility for the hearing officer to resolve. Moore v. Walsh, 755 N.Y.S.2d 447 (A.D. 3 Dept. 2003).

Prisoner Suicide

     Estate of prisoner who died from a prescription drug overdose state a possible claim for negligence by alleging that prison personnel violated policies requiring controlled substance medication to be administered by licensed personnel, and by failing to complete a timely "unusual incident report" (UIR) concerning the prisoner's suicide attempt.   Arias v. State of New York, Claim No. 97942, 755 N.Y.S.2d 223 (Ct. Cl. 2003).

Prisoner Transfers

     Prisoner could not pursue a federal civil rights lawsuit over a state's practice of transferring inmates to out-of-state private prisons, since he had no constitutional right to be placed in a particular facility. Prisoner's claim that officials denied timely parole hearings as part of a plan to create overcrowding in state prisons and therefore create a need for transfers to private prisons so that they could increase the value of the stock in private prison corporations allegedly held in their retirement portfolios could not be pursued when prisoner could not show that he was being held beyond his mandatory release date. Madyun v. Litscher, No. 02-1788, 57 Fed. Appx. 259 (7th Cir. 2002).

Probation

     Threats to kill county jail staff members on more than one occasion were sufficient to support the revocation of a prisoner's probation. The threats were made while he was serving a 90 day sentence in the jail as one of the conditions of probation, and there was evidence that he was shown a videotape notifying him of the jail's rules, including the rules against threatening staff members. State v. Payne, No. COA02-809, 577 S.E.2d 166 (N.C. App. 2003).

Sexual Offender Programs

     Prisoner's alleged pedophilia was a "severe mental disorder" qualifying him for commitment as a "mentally disordered offender" under a California statute, Cal. Penal Code Sec. 2962 et seq. Intermediate California appeals court rejects prisoner's argument that pedophiles who commit sex offenses fall exclusively under the Sexually Violent Predators Act, Cal. Welf. & Inst. Code. Sec. 6600 et seq., and are not mentally disordered offenders. The same offenses may qualify a prisoner for imposition of commitment under either of these statutes. Additionally, court finds that the treatment provided under either statute was substantially the same. The prisoner "contends he should be released because his pedophilia is 'under control' and he is not a threat to children. We disagree," the court concluded. "The psychiatric testimony established he was a threat to children, posed a substantial danger to others, and 'might very well molest children again.'" People v. Starr, No. B155507, 131 Cal. Rptr. 2d (Cal. App. 2nd Dist. 2003).

Terrorism/National Security Issues

     U.S. Attorney General John Ashcroft rules that illegal immigrants can be held indefinitely without bond if their cases present national security concerns. The opinion was requested by the Homeland Security Department, which now has authority over most immigration matters, after the Board of Immigration Appeals upheld a judge's decision to release a Haitian asylum-seeker on $2,500 bond. Ashcroft ordered that this decision be vacated, and that the asylum-seeker be denied bond and detained "pending appropriate disposition and proceedings respecting his status under the immigration laws." In Re: D-J-, Respondent, 23 I&N Dec. 572 (A.G. 2003). Interim decision #3448, April 17, 2003. [PDF].

Visitation

     Under a prior consent decree concerning New York prisoners and correctional rules established to implement the decree, specifically 7 NYCRR Ses. 200.1-200-5, misconduct that is unrelated to visitation cannot be used as the basis for a denial of visitation rights. Accordingly, an inmate's right to contact visitation could not be denied based on his alleged violent behavior against prison staff members, when it had not occurred during a visitation period, and prisoner was entitled to $100 in damages for the denial. Dawes v. State of New York, Claim No. 102133, 755 N.Y.S.2d 221 (Ct. Cl. 2003).

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

     Article: "Inmate Litigation," by Schlanger, Margo, Assistant Prof. of Law, Harvard Law School, 116 Harvard Law Review No. 6, pgs. 1555-1706 (April 2003). An examination of the "large portion of the federal district court civil docket brought by inmates, before and after the Prison Litigation Reform Act (PLRA) dramatically altered the litigation landscape in 1996." There are many statistical charts and tables, including statistics on jury awards and settlements. In the introduction, Prof. Schlanger notes that 2001 filings by inmates were down 43% since their peak in 1995, notwithstanding a simultaneous twenty-three percent increase in the number of people incarcerated nationwide, and she attributes most of this to the impact of the PLRA. An on-line synopsis of the article is available in .PDF format.

     Conference Papers: “From Prison to Home” conference papers now available. Eleven papers from the conference “From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities” are now available online. The conference, held January 30–31, 2002, at the National Institutes of Health, was sponsored by the U.S. Department of Health and Human Services. The purpose of the conference was to bring together the research, policy, and practice communities to share promising strategies, develop a research agenda, and inform federal policy development for children and families affected by the incarceration of a parent. The conference papers, written by leading academics, examine the dynamics of incarceration and reentry as seen through the prism of individual, family, and community perspectives. Abstracts and full text of the papers are available on the Urban Institute Web site.

     Congressional Resolution: On March 12, 2003, the U.S. Senate passed Senate Resolution 24, which designated the week of May 4, 2003, as National Correctional Officers and Employees Week. Citing the "vital role played by correctional personnel in protecting the rights of the public to be safeguarded from criminal activity and the demanding circumstances and dangers faced by correctional officers in their daily lives," Senate Resolution 24 recognized the men and women who work in some of the most dangerous places in the United States. According to Corrections Yearbook, 2000, some 16,152 of the 212,454 officers working in the Nation's prisons, in 1999, were assaulted by inmates and 33 were killed in the line of duty. The National Law Enforcement Officers Memorial lists the names of 402 correctional officers killed in the line of duty. National Criminal Justice Reference Service (NCJRS) has created a website to express gratitude and support for the services provided by correctional officers and employees.

     E-mail discussion list: "NIC Corrections Exchange (Correx): An E-Mail Discussion List for People Serious About Corrections" The NIC Corrections Exchange ("correx") is a communication opportunity for corrections professionals. Launched in 1998, the list now serves more than 600 members. Correx provides a public, online forum for discussing corrections issues and practices and for exchanging views and information. Posts to the list are moderated. Correx also facilitates communication between the NIC and field practitioners, policy makers, researchers, and others concerned with corrections. Announcements of new NIC publications and program opportunities are a standard feature. When you join correx, the system will ask you to confirm your email address and will send you user guidelines. Please save the guidelines on your computer for future reference. (See Member Guidelines.) To Join-- Address e-mail to lyris@www.nicic.org. No subject line is needed. In the body of the message, type: subscribe correx (first name) (last name), omitting the parentheses.

     E-mail discussion list: Correctional Training Network (CTN) E-mail Discussion List is a discussion group established by the National Institute of Corrections (NIC) for correctional staff trainers in public agency settings. Members are encouraged to use the list to locate or share curriculum materials and to discuss issues related to training. Membership is limited to staff of correctional agencies who provide staff training in their agencies, either as a full-time or part-time responsibility. See Member Guidelines for details on participating in the discussion group. To apply, complete the Online Application Form. NIC may contact new applicants for membership to verify their eligibility.

     Publication: "Addressing Correctional Officer Stress: Programs and Strategies," by Peter Finn. 134 pgs. (December 2000 NCJ 183474). [PDF format]

     Publication: "Legal Resource Guide to the Federal Bureau of Prisons" 61 pgs. U.S. Department of Justice, Federal Bureau of Prisons (2003). [PDF]

     Publication: "Jail Planning and Expansion: Local Officials and Their Roles," by James R. Robertson, January 2003. This document describes a process to help communities, elected officials, and their policymakers plan and construct new jails and major expansions of existing jails. The process, involving 16 separate "steps" with five overlapping phases of activity, outlines all participants' roles, the decisions they make, and the products they create. The phases incorporate both concurrent and consecutive activities such as pre-architectural planning, site selection and planning, architectural and engineering design, construction, and occupancy. The discussion of each of the 16 steps lists major work activities and products developed. Tables exhibit the tasks to be performed for each step, which participants perform them, and what actions participants take throughout the process. Also includes exhibits and a bibliography. "Jail Planning and Expansion: Local Officials and Their Roles" is available in paper copy from the NIC Information Center at asknicic@nicic.org; telephone (800) 877-1461 or (303) 682-0213; fax (303) 682-0558. Request title no. NIC-017831 Available on-line in .PDF format.

     Report: "The Effectiveness and Safety of Pepper Spray" (April 2003). National Institute of Justice (NIJ). "Though generally assumed to be safe and effective, the consequences of the use of pepper spray, as with any use of force, can never be predicted with certainty. To expand the scope of knowledge on such a complex subject, this Research for Practice examines two unpublished NIJ-funded studies on the use of pepper spray in real-life arrests and compares them with previous studies. While the research does not and cannot prove that pepper spray will never be a contributing factor in the death of a subject resisting arrest, it seems to confirm that pepper spray is a reasonably safe and effective tool for law enforcement officers to use when confronting uncooperative or combative subjects." Full text of the Report: ASCII Text File Adobe Acrobat File.

     Report: "Prison and Jail Inmates at Midyear 2002". 4/2003, NCJ 198877. PDF File ASCII Text File HTML File Presents data on prison and jail inmates, collected from National Prisoner Statistics counts and the Annual Survey of Jails in 2002. This report provides for each State and the Federal system, the number of inmates and the overall incarceration rate per 100,000 residents. It offers trends since 1995 and percentage changes in prison populations since midyear and yearend 2001. The midyear report presents the number of prison inmates held in private facilities and the number of prisoners under 18 years of age held by State correctional authorities. It includes total numbers for prison and jail inmates by gender, race, and Hispanic origin as well as counts of jail inmates by juvenile status, conviction status, and confinement status. The report also provides findings on rated capacity of local jails, percent of capacity occupied, and capacity added. Highlights include the following:

* In the year ending June 30, 2002, the number of inmates in custody in local jails rose by 34,235; in State prison by 12,440; and in Federal prison by 8,042.

* At midyear 2002, a total of 3,055 State prisoners were under age 18. Adult jails held a total of 7,248 persons under age 18.

* At midyear 2002, there were 113 female inmates per 100,000 women in the United States, compared to 1,309 male inmates per 100,000 men.

     Report: "Residential Substance Abuse Treatment for State Prisoners: Implementation Lessons Learned." This National Institute of Justice (NIJ) Special Report summarizes the results of a National Evaluation of Residential Substance Abuse Treatment (RSAT) and process evaluations of 12 local sites across the country. (NCJ 195738) (April 2003). PDF File and ASCII Text File.

     Report: "Residential Substance Abuse Treatment for State Prisoners: Breaking the Drug-Crime Cycle Among Parole Violators." This Research for Practice examines the Residential Substance Abuse Treatment (RSAT) program at the South Idaho Correctional Institution. The program targets parole-violating inmates with substance abuse problems in an effort to reduce recidivism. (NCJ 199948) (May 2003)  PDF File and ASCII Text File.

     Report: "Lessons Learned From Early Corrections and Law Enforcement Family Support (CLEFS) Programs," by Robert P. Delprino Ph.D., Department of Psychology, Buffalo State College, S.U.N.Y. 51 pgs. (Feb. 2002). [PDF format] This report summarizes lessons learned from the experience of 32 grants awarded by the National Institute of Justice since 1996 to address the negative effects of stress experienced by law enforcement and correctional officers and their families under the Corrections and Law Enforcement Family Support (CLEFS) Program developed in response to Section 2301 of the 1994 Violent Crime Control and Law Enforcement Assistance Act.

     Report: "Work and Family Support Services for Correctional Officers and Their Family Members: A National Survey," by Robert P. Delprino, Ph.D., Department of Psychology, Buffalo State College, S.U.N.Y. (Feb. 2002). 80 pgs. [PDF format]. This report summarizes the results of a national survey of correctional agencies which attempted to identify the extent and nature of organizational support programs for correctional officers and their family members. Participants included the primary adult and juvenile correctional agencies in the 50 states, the District of Columbia, the Federal Bureau of Prisons, and U.S. territories, with a response rate of 63.3%, representing 76 agencies from the 120 agencies contacted.

     Training: NIC To Present Videoconference on Youthful Offenders in Adult Correctional Facilities. The National Institute of Corrections (NIC) will present a live distance learning training program called "Youthful Offenders in Adult Corrections: A Systemic Approach Using Effective Interventions." This 32-hour training program, which will be held on September 8–12, 2003, will feature a research-based, practical curriculum that teaches principles and implementation of effective interventions ("what works") within the context of managing youthful offenders in an adult correctional environment. For more information, visit the NIC Web site.

     Videotape: "Beyond the Myths: The Jail in Your Community" National Institute of Corrections, 2003. This videotape provides a foundation for the efforts of sheriffs and jail administrators to inform the public about jails generally, their jails specifically, and the need for community interest in and discussion about their own local jail. It can also be used to educate prospective jail employees about local detention. In developing this resource, NIC focused on providing information that accurately represents local jail operations across the country. Because of the diversity among jails, however, there may be a few instances where the information in the video differs from the situation in a particular jail. For example, the program states that misdemeanants are sentenced to local jails, while in some jurisdictions certain types of felons as well as misdemeanants may be sentenced to serve a jail term. Jail officials should clarify such points with the groups to whom they show the videotape. "Beyond the Myths: The Jail in Your Community" is available on VHS tape (23 min.) from the NIC Information Center at asknicic@nicic.org; telephone (800) 877-1461 or (303) 682-0213; fax (303) 682-0558. Request title no. NIC-018696,

     Videoconferences: Past National Institute of Corrections videoconferences can be viewed online via video streaming (in some instances) or requested on videotape from the NIC Information Center. Program materials may be available only on a loan basis. Contact the NIC Information Center for details online or at (800) 877-1461. Titles currently available include: "Transition from Prison to the Community," February 12, 2003 108642 (Two-tape set; videostream available for online viewing), "Addressing Staff Sexual Misconduct" December 12, 2001 017503 (Two-tape set; videostream available for online viewing), "Building Futures: Offender Job Retention" (Distance Learning program) October 7-11, 2002 Program tapes pending. (Videostream available for online viewing). "A Collaborative Approach to Staff Recruitment and Retention" Aug. 28, 2002 018310 (One tape), "Jail Inmates with Mental Illness: A Community Problem" April 17, 2002 017693 (Two-tape set; videostream available for online viewing), "Meeting the Challenge in Correctional Mental Health: The Prison Experience" June 19, 2002 017901 (Two-tape set; videostream available for online viewing), "Understanding Managed Behavior Health Care in Community Corrections" July 17, 2002 017907 (Two-tape set; videostream available for online viewing), "Systemic Approaches to Emergency Preparedness Affecting Correctional Communities" (Videoconference) July 31, 2002 017908 (Two-tape set; videostream available for online viewing). See the link above for a listing of earlier titles back to 1991 and their current availability.

     Website: U.S. Department of Education Office of Correctional Education. This website has links to federal resources for correctional educators, as well as other links. While much of the material is older and is archived material, some of it will still be useful in evaluating and managing correctional educational programs.

     Website: American Correctional Food Service Association. The website of a national non-profit organization dedicated to the professional growth of the nation's correctional foodservice employees, formed in 1969.

     Website: The Corrections Connection Health Care Network. Contains information and links to information and publications on correctional health care, and runs e-mail discussion lists and bulletin boards on correctional health care issues, including general health and medical issues and special concerns about elderly prisoners, substance abuse, and care of terminally ill prisoners.

     Reference:

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