FEATURED CASES

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Prisoners' claims that they lost legal materials and documents when prison's policy on use of memory and disk-based word processors and computers changed could be the basis for a lawsuit for interference with the right of access to the courts.

     Two prisoners in a South Dakota prison sued state correctional officials for alleged interference with their right of access to the courts. The lawsuit claimed that due to a change in policy regarding memory and disk-based typewriters, word processors, and computers, they were forced to abandon their machines, upon which they had stored legal work and strategies and had collected case law and information for complaints.

     The plaintiffs also claimed that the defendant officials had instituted a policy and practice authorizing prison employees to search and inspect, without justification, the plaintiffs' legal papers in their absence. Guards stated that they had read the plaintiffs' legal documents, denying that they had been instructed to refrain from doing so, with one of them stating that under official policy legal materials received by inmates were deemed personal property subject to being read and confiscated.

     The plaintiffs further asserted that the correctional officials at times claimed that legal materials confiscated from them had been "accidentally" lost or destroyed, and that the defendants, in this manner, gained "an unfair advantage in their ability to defend against plaintiffs' claims of constitutional violations."

     A federal appeals court found that these allegations asserted viable claims for denial of access to the courts.

Plaintiffs alleged that the denial of access to their machines hindered their efforts to pursue legal claims, and while the actual-injury allegations in their complaint were somewhat conclusory, their affidavits added more detail, referring to the hindrance of habeas corpus litigation and a pending court action.

     The court additionally found that the allegations about missing legal materials being "accidentally" lost or destroyed, the failure to instruct guards to refrain from reading inmates' legal materials, and the searches and inspection of legal materials "pursuant to policy and practice, were sufficient to state a section 1983 claim for supervisory liability."

     The appeals court did, however, uphold the dismissal of claims based on the alleged inadequacy of the prison law library and its legal staff, since the plaintiffs did not plead that these deficiencies resulted in actual injury to their access to the courts.

     Waff v. South Dakota Dept. of Corrections, #01-3501, 51 Fed. Appx. 615 (8th Cir. 2002).

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Virginia prison warden could not pursue, in Virginia federal court, defamation claims against Connecticut newspapers for publishing articles, also posted on their Internet sites, concerning Connecticut state policy of housing some prisoners in Virginia correctional facilities.

     The State of Connecticut contracted with the State of Virginia in late 1999 to transfer approximately 500 prisoners, mostly African-American and Hispanic, to the Wallens Ridge State Prison, a "supermax" facility in Big Stone Gap, Virginia. The purpose was to alleviate substantial overcrowding in Connecticut's maximum security prisons. There was controversy over the transfers in Connecticut, with criticism from state legislators and demonstrations against the transfers in the state capitol. A number of newspapers began reporting on the controversy.

     Two Connecticut newspapers published articles, which were subsequently posted on their Internet websites, which the warden of Wallens Ridge prison believed defamed him. The articles discussed the allegedly "harsh" conditions at the Virginia prison, described it as a "cut-rate gulag" in which prisoners had alleged cruelty by prison guards, and mentioned that a Connecticut state senator had expressed concern about the presence of Confederate Civil War memorabilia in the warden's office.

     The warden sued the two newspapers, their editors, and two reporters for libel in a lawsuit filed in federal district court in the Western District of Virginia under diversity jurisdiction (because he and the defendants were citizens of different states). The lawsuit claimed that the articles implied that he "is a racist who advocates racism" and that he "encourages abuse of inmates by the guards" at the prison. The lawsuit claimed that the articles were circulated "throughout the world" by being posted on the Internet on their sites at http://www.newhavenadvocate.com and http://www.newmassmedia.com.

     The defendants argued that the Virginia federal court lacked personal jurisdiction over them, since the newspapers did not solicit subscriptions from Virginia residents, and no one from either newspaper, including the reporters, had traveled to Virginia to work on the articles about the prisoner transfer policy. The reporters did make some phone calls into Virginia to conduct interviews with a spokesman for the Virginia Department of Corrections, but all other interviews were conducted in Connecticut. The warden, in response, pointed to the Internet websites, which are easily accessible to Virginia residents, as well as people anywhere else in the world.

     The federal trial court denied the motions to dismiss, concluding that it could exercise personal jurisdiction over the defendants under Virginia's "long-arm" statute, Va. Code Ann. Sec. 8.01-328(A)(3) because the defendant's "Connecticut-based Internet activities constituted an act leading to an injury to the plaintiff in Virginia." Young v. New Haven Advocate, 184 F. Supp. 2d 498 (W.D. Va. 2001).

     A federal appeals court granted the defendants leave to file an interlocutory appeal, and has now reversed.

     The appeals court found that the newspapers' websites, as well as the articles in question, were "aimed at a Connecticut audience," and were not posted on the Internet with the "manifest intent of targeting Virginia readers." Therefore, the newspapers could not have "reasonably anticipated being haled into court" in Virginia "to answer for the truth of the statements made in their articles." In summary, the court reasoned, the newspapers did not have "sufficient Internet contacts with Virginia to permit the district court to exercise specific jurisdiction over them." The appeals court ordered the lawsuit dismissed.

     Young v. New Haven Advocate, No. 01-2340, 315 F.3d 256 (4th Cir. 2002).

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"Booking fee" charged to inmate returning to county jail for new sentencing hearing violated his right to equal protection of the law and substantive due process when the same fee was not charged to inmates returning to the county jail from state prisons in order to testify in court proceedings.

     A Florida intermediate appeals court has ruled that a $20 booking fee charged by a Florida county sheriff to inmates returned to his jail from state prison is unconstitutional, in violation of certain inmates' rights to equal protection and substantive due process. The fee is not charged to prisoners transferred to the jail for purposes of court testimony, but is charged to all other inmates transferred for whatever other reason. The court found that this made an arbitrary distinction between prisoners transferred to testify and those transferred for other reasons.

     The plaintiff prisoner was returned to the jail from a state prison under a "writ of prosequendum" after a new sentencing hearing was ordered for him, and he objected to the $20 booking fee he was charged. The sheriff responded that the fee was only waived for prisoners returning to the jail under a "writ of testifacandum"--a subpoena to testify.

     "The sheriff's regulation ... makes a distinction between state inmates who return to the county jail on writs of prosequendum versus inmates who are brought back to the jail by the state attorney or public defender's office on writs of testificandum. There is nothing in the record to show how the sheriff arrived at the distinction between writs of testificandum and writs of prosequendum." The plaintiff prisoner argued that either of these writs could have been used to transfer him in order to make him available for the court proceeding.

     The appeals court agreed, concluding that the "sheriff's standard operating procedure violates Joseph's right to due process and equal protection in this instance."

     Joseph v. Henderson, #2D01-5256, 2003 Fla. App. Lexis 207 (2003).

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Prisoner's claim that he is currently being denied medical care for acid reflux and painful cysts on his vocal cords could pursue his lawsuit without prepaying a filing fee, despite having three previous lawsuits which were dismissed for failure to state a claim, under an "imminent danger" exception. State prison non-medical personnel, however, were not subject to liability for deliberate indifference to his serious medical needs when they relied on the medical judgment of prison medical personnel in denying the prisoner's medical grievances.

     A prisoner at an Illinois state correctional facility filed a federal civil rights lawsuit alleging that neglect of his medical condition amounted to cruel and unusual punishment in violation of the Eighth Amendment. He sought to proceed without prepayment of the court filing fee, but court records showed that he had filed three previously federal lawsuits which were dismissed for failure to state a claim upon which relief may be granted.

     Under the "three strikes" rule of the Prison Litigation Reform Act, the trial court noted, the prisoner may not proceed without prepayment of the filing fee unless he is "under imminent damages of serious physical harm." 28 U.S.C. Sec. 1915(b).

     The trial court found that the fact that the prisoner alleges that his medical problems are serious and ongoing and causing him severe pain, and that he is currently being denied medical care meets the "imminent harm" exception to the "three strikes rule." The court also found that the prisoner could proceed with his claims not only against the defendants responsible for his present treatment, but also against those responsible for his treatment in the past.

     The plaintiff prisoner stated that he was suffering from back pain when first transferred to the present facility, but was told by a doctor that there was nothing wrong with him. Later, he developed hoarseness, but the doctor allegedly only told him to stop talking. A specialist later found cysts on his vocal cords which he believed to be caused by acid reflux from the prisoner's stomach to his esophagus. The prisoner was later seen by a "voice specialist" who told him that until the acid reflux problem was solved, he could do nothing for him.

     The complaint alleges that the medical director and health-care unit administrator ignored the prisoner's requests for treatment of acid reflux as recommended by the specialist, and that his grievances were thereafter denied by the prison's grievance officer, two successive assistant wardens, and the warden, and that the denial was upheld by the Director of the Illinois Department of Corrections. When he was transferred to a new facility, officials there allegedly refused to carry out the treatment recommended by the specialist, and grievances were similarly denied, despite the prisoner's contention that he was experiencing "excruciating pain."

     The trial court found that the prisoner could not pursue his claims for deliberate indifference to his serious medical needs against the non-medical personnel at the correctional facilities, since they relied on the medical judgment of prison medical personnel to deny the prisoner's medical grievances. The court found that there was no basis to infer that they "actually knew that his treatment was medically inappropriate, and consequently they cannot be liable."

     Bond v. Aguinaldo, 228 F. Supp. 2d 918 (N.D. Ill. 2002).

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Former director of Michigan Department of Corrections was not entitled to qualified immunity from liability for death of diabetic prisoner allegedly resulting from policy mandating only "minimal standards" of health care for prisoners with chronic illnesses and/or requiring prisoner to purchase his own insulin.

     The estate of a Michigan prisoner who died from complications of diabetes sued the former director of the state Department of Corrections, contending that he implemented a policy that denied necessary and life-saving medical care to prisoners with chronic or long-term serious illnesses.

     The lawsuit claims that the policy adopted was intended to minimize the expenses of medical care provided to prisoners with diseases such as diabetes, despite knowledge that there was a substantial risk that its implementation would cause serious harm to inmates. The policy called for the establishment of "chronic care clinics" to ensure that prisoners with specified chronic diseases or disorders "receive continuous health care services." The policy also stated that guidelines shall be developed by the Chief Medical Officer and the Medical Advisory Committee "to provide minimum standards of care."

     The complaint alleged that this policy resulted in the prisoner's death. The decedent allegedly went to the medical clinic at the prison numerous times "complaining of nose bleeds, dizziness, elevated blood sugar, and ulcerations on his feet and legs." Untreated ulcerations allegedly led to a staph infection, which also was not properly treated. The lawsuit claims that the decedent was denied proper administration and dosage of his insulin required to control his diabetes.

     After the prisoner was transferred to a hospital and suffered acute renal failure and sepsis, an emergency nephrology consultation was initially denied by the director of the Correctional Medical Services, and then approved, with an appointment scheduled for several weeks later. In the meantime, the prisoner's condition worsened and he suffered multiple organ system failure and septic shock. He underwent surgery, and eventually lapsed into a coma and died after suffering a stroke.

     The decedent's sister, in a deposition, stated that the decedent told her in a phone conversation that unless he had his own money to pay for insulin, the insulin would be withheld from him by medical caretakers at the prison. The decedent's family allegedly sent him some money, and they claimed that when that money ran out, the insulin was unavailable.

     A federal appeals court found that the former Director was not entitled to qualified immunity from liability for the prisoner's death under these circumstances. While there was no allegation that he was personally involved, in any way, with the decedent's medical care or that he had knowledge of the particulars of his treatment, liability could be based on "knowingly" implementing a policy of "minimizing medical care and withholding necessary care which caused plaintiff's early demise."

     The policy in question was alleged to disregard excessive risks to prisoners' health by requiring that prisoners with chronic illness "receive minimal care," by limiting referrals, and by charging prisoners for the costs of their own health care. If that were true, it did not matter that the defendant "did not know of the substantial risk of harm to plaintiff in particular; rather, the inquiry is whether he was aware that his conduct would result in a substantial risk of harm to a particular class of persons."

     Young Ex Rel. Estate of Young v. Martin, #02-1036, 51 Fed. Appx. 509 (6th Cir. 2002).

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Five-hour barefoot detention in a cell without a toilet was not a sufficiently serious deprivation to constitute cruel and unusual punishment or violation of due process rights of pre-trial detainee.

     A pre-trial detainee in a City of Topeka, Kansas detention facility claimed that he was imprisoned in "heinous conditions" in violation of his Eighth Amendment rights. The complaint itself in the case did not specify further what these conditions were.

     In upholding dismissal of the cruel and unusual punishment claim, a federal appeals court noted that it was the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment's prohibition of cruel and unusual punishment which governs a pretrial detainee's claim of unconstitutional conditions of confinement. At the same time, for purposes of determining what violates those due process rights, "the Eighth Amendment standard provides the benchmark for such claims."

     The plaintiff detainee, in response to the defendant city's motion for summary judgment in the trial court finally specified that what he was complaining about was that he was kept "in a filthy cell with no toilet in [his] bare feet" for five hours.

     The federal appeals court ruled that, even if these allegations were true, and even if they had been specified in the initial complaint, they "are insufficient to establish that he was subjected to cruel and unusual punishment in violation of the Constitution." Under the due process clause, the city was required to provide the pretrial detainee "humane conditions of confinement" which ensured that he would receive "the basic necessities of adequate food, clothing, shelter, and medical care," as well as taking reasonable measures to guarantee his safety.

     To show a violation of his rights, the plaintiff was required to show that the defendants "knew of and disregarded an excessive risk to [his] health and safety," and that the alleged deprivation was "sufficiently serious." Conditions in a jail may be "restrictive and even harsh," the court noted, without violating constitutional rights, and only those "deprivations denying the minimal civilized measure of life's necessities" are "sufficiently grave" to form the basis of a constitutional claim.

     In this case, the placement of the plaintiff in a cell in his bare feet without a toilet for five hours "does not allege a sufficiently serious deprivation to constitute a constitutional violation." The court noted, in passing, that "an important factor in determining whether the conditions of confinement meet constitutional standards is the length of the incarceration." 

     Ledbetter v. City of Topeka, #02-3202, 2003 U.S. App. Lexis 2134 (10th Cir.).

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County sheriff and other jail personnel, in allegedly interfering with a detainee's ability to exhaust administrative remedies on his grievances, as required by the Prison Litigation Reform Act before proceeding with a federal civil rights lawsuit, might be subject to liability for interfering with the detainee's constitutional right of access to the courts on several claims which were non-frivolous. Complete absence of legal materials at jail prevented detainee of learning of exhaustion requirement or attempting to comply with it, and plaintiff was told his complaints were not subject to grievance procedure.

     A Wisconsin state prisoner sued a county and its sheriff, alleging that they violated his constitutional right of access to the courts when he was a pre-trial detainee at the county jail.

     The trial court found that the plaintiff's rights to court access were not violated in relationship to a pending sexual assault criminal case on which he had a court-appointed lawyer.

     As to several other claims, however, including his claim that he was subjected to unlawful corporal punishment at the jail and provided with no medical attention for resulting injuries, the court found that the plaintiff's claims were non-frivolous and that certain actions of the defendants gave rise to viable claims that they interfered with his right of access to the courts on those issues.

     Under 42 U.S.C. Sec. 1997e(a) of the Prison Litigation Reform Act (PLRA), which went into effect approximately four months before the complained of incidents, the detainee was required to exhaust all available administrative remedies before being able to bring a federal civil rights lawsuit. The prisoner's subsequent civil rights lawsuit over the corporal punishment and lack of medical attention was dismissed by a federal trial court for failure to exhaust such remedies.

     The trial court in the immediate case, however, found that the county and sheriff may have interfered with the detainee's ability to exhaust such remedies. First, the defendants conceded that there were absolutely no legal materials available at the county jail. The court reasoned that this meant that the detainee had no way of even knowing of the requirement that he exhaust available administrative remedies and no way of knowing how to do so. Further, it was also "undisputed" that the jail provided the detainee with no information about the Prison Litigation Reform Act and its exhaustion requirement or about the jail's own grievance procedure.

     When the prisoner did file an inmate grievance over the incident, he was allegedly told that it was not a grievable situation. In order to exhaust his administrative remedies, after his grievance was rejected, he would have had to ask the Grievance Committee for a hearing and, if its response was unsatisfactory, appeal to the jail administrator. He did not do so, but the trial court reasoned that the defendants' actions may have interfered with his ability to do so, by preventing him from learning what he had to do.

     Additionally, since the jail's grievance procedures were no longer available to the detainee after he left the jail, he could no longer exhaust such remedies, so the dismissal of his lawsuit on these claims was, in effect, with prejudice. The trial court denied the defendants' motion for summary judgment as to the claimed denial of access to the courts on these claims, therefore.

     Davis v. Milwaukee County, 225 F. Supp. 2d 967 (E.D. Wis. 2002).

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Prison officials were not liable for prisoner's injuries from being struck in the head by a tear gas canister fired during an inmate disturbance, when there was no showing that the canister was fired maliciously or sadistically.

     A prisoner in a Puerto Rican correctional facility suffered serious injury from being hit by a tear gas canister fired by a prison official during a prison disturbance. The disturbance occurred after prisoners fought guards following the prisoners being locked into a room while a general search of the facility was conducted.

     In response, prison guards allegedly began firing tear gas indiscriminately at inmates, both those who were participating in the fight and those who were not. One officer fired a tear gas canister directly into the room and into the back of the prisoner's head. The prisoner was knocked to the ground, stunned, and began bleeding profusely from his wound, which later required eight stitches. Since the incident, the prisoner has allegedly suffered from headaches and discomfort.

     The prisoner filed a federal civil rights lawsuit claiming excessive use of force amounting to cruel and unusual punishment.

     Upholding the dismissal of the lawsuit, a federal appeals court noted that "deliberate indifference" is the standard for determining whether there is a constitutional claim for "tolerating threats to inmate health or safety," but that the U.S. Supreme Court has established a "very different" standard by which to evaluate the behavior of prison officials during riots or other disturbances. Deliberate indifference does not apply:

 Instead, the standard is whether unnecessary and wanton pain and suffering were inflicted, with that question ultimately turning on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."

     In this case, the appeals court found, there was nothing in the record which permitted a reasonable inference that the tear gas canister was fired maliciously or sadistically for the very purpose of causing harm. Prison officials are given "wide-ranging deference" in their measures to restore order during disturbances, the court noted.

     Finally, the appeals court stated that the plaintiff's failure to state any Eighth Amendment claim whatsoever "dooms his" claim for supervisory liability against prison officials as well.

     Torres-Viera v. Laboy-Alvarado, #01-2712, 311 F.3d 105 (1st Cir. 2002).

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Alabama Supreme Court overrules prior caselaw providing that all state officials have no duty to protect unforeseeable members of the public from harm resulting from escaped prisoners. New rule, except for parole officials, is that the trial court must consider, on a case-by-case basis whether there was a duty to protect third parties and whether the defendant officials were entitled to qualified immunity defense.

     Three separate lawsuits for damages were brought against correctional officials and employees in Alabama by persons who were victims of a "post-escape rampage" by an inmate who, along with another prisoner, escaped from a disciplinary chain gang. The prisoner allegedly robbed and assaulted a father and assaulted his son, assaulted another man and stole a truck belonging to one of his family members, and finally broke into a married couple's residence in Georgia and terrorized them by repeatedly raping the wife and beating the husband. The prisoner was eventually captured at the residence.

     The victims sued the classification-specialist supervisor at the prison, the warden, the deputy warden, and a correctional officer, claiming that they engaged in various acts and omissions constituting negligence or wantonness which facilitated the escape or otherwise contributed to the harm. The plaintiffs contend that the prisoner, known to be a troublemaker, should not have been on the chain gang, and that there were various problems with the leg irons used on the prisoners on the chain gang. The plaintiffs also claim that the officer supervising the chain gang picked a poor place for a lunch break and was inattentive while talking to some inmates about personal business, so that he did not see that there were prisoners missing for approximately one hour after the escape.

     In entering summary judgment for all defendants, the trial judge based his decision on Donahoo v. State of Alabama, 479 So. 2d 1188 (1985), a case in which the Alabama Supreme Court found no liability on the part of state officials, including the chairman and members of the Board of Pardons and Paroles, for a man's murder by two former state prisoners who were alleged to have been released from prison before they were legally eligible for parole.

     In Donahoo, a four Justice plurality of the Alabama Supreme Court found that state officials could not be held liable in these circumstances in the absence of proof that the officials "knew or should have known that an aggressor might be a danger to a specific individual." In the absence of such knowledge, there was no duty to provide protection. The three Justices concurring would have avoided reaching that broad an analysis of the duty issue, and would have based the decision on their belief that parole officers "should be protected by the same absolute immunity afforded judges, because the function of the parole board is more akin to that of a judge than to that of an administrative officer."

     On appeal in the immediate case, the Alabama Supreme Court has overruled Donahoo in terms of a broad interpretation that state officials have no duty under any circumstances to protect unforeseeable third parties against harm from escaped prisoners. It emphasized that it was not withdrawing its support for the "rationale and ruling" in Donahoo "insofar as it relates to parole officials."

As to the wide variety of State agents who do not make parole decisions, the duty analysis must take place on a case-by-case basis, taking into consideration all of the dynamics of the particular jobs of those State agents. [...] We today overrule Donahoo to the extent that it announced a rule of duty that comprehensively and indiscriminately embraced all State officials, rather than just parole officials, the special class of State officials to which its rationale was directed; therefore we must remand this case for further consideration.

     On remand, the court stated, the trial court "shall address the duty issue and/or the [qualified] immunity issue, as it sees fit and in the order it sees fit, because both issues are factually ripe for determination."

     Ryan v. Hayes, #1001578, 831 So. 2d 21 (Ala. 2002).

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Federal trial court rules that Religious Land Use and Institutionalized Persons Act of 2000 is unconstitutional as an "establishment of religion" in case where "Hebrew Israelite" religious believer asked for kosher food diet.

     A federal trial court has ruled that a federal statute that reimposed on correctional institutions a burden of showing that restrictions on prisoners' religious freedoms are justified by a "compelling" governmental interest is unconstitutional as an "establishment of religion" under the First Amendment. The statute, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc-1, was passed by Congress in reaction to the U.S. Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 (1997) striking down the Religious Freedom Restoration Act (RFRA) as unconstitutional as applied to the states because it exceeded Congress's powers under Sec. 5 of the Fourteenth Amendment.

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

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

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

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

     This is a much heavier burden than is usually required to uphold correctional policies or practices which must only be rationally related to a legitimate penological interest. The plaintiff in the immediate case is a Virginia inmate relying on the First Amendment and the RLUIPA for relief against actions by correctional officials he claims violate his religious beliefs as a member of a particular sect of the "Hebrew Israelite faith," based out of the Beth El Temple in Norfolk, Virginia. He claims that his faith requires him to consume a kosher diet, which is provided by the Virginia Department of Corrections in particular prison facilities under the name "Common Fare Diet."

     State correctional officials denied his request for the diet, finding that the plaintiff had no compelling religious reason to participate in the diet, that he could satisfy his dietary needs from the regular food line, and that he had not shown a sincere belief in his religion. He then filed a federal civil rights lawsuit.

     In addressing the issue of the constitutionality of the RLUIPA, the trial court heard oral arguments both from the parties and from the United States government as intervener. The U.S. government argued that the narrower reach of RLUIPA (to only land use issues and correctional institutions) and its passage under the Spending and Commerce Clause cured the problems that rendered the RFRA unconstitutional.

     The trial court rejected this argument, finding that the RLUIPA's application of the "strict scrutiny" (compelling interest) standard to free exercise claims of religious inmates is a "clear violation of the Establishment Clause, having the primary effect of advancing religion above other fundamental rights and conscientious beliefs." The court noted that the Establishment Clause, prohibiting an "establishment of religion" has been interpreted by the U.S. Supreme Court as guarding against laws that "promote all religions equally, in addition to laws that attempt to promote one particular religion over all others."

     The court found that the RLUIPA "singles out religious rights" from other fundamental rights such as freedom of speech, switching from a "scheme of deference" to the actions of correctional officials to "one of presumptive unconstitutionality." What "makes this increased level of protection for religious rights, and religious rights only, constitutionally questionable is the fact that there is no demonstrable evidence that religious constitutional rights are at any greater risk of deprivation in the prison system than other fundamental rights," the court stated.

While Congress could constitutionally legislate to raise the level of protection for all of the fundamental rights of prisoners, doing so only for the right to religious exercise when all fundamental rights are equally at risk in the prison system has the principal effect of raising religious rights to a position superior to that of all other rights held by prisoners. As a result, RLUIPA has the principal and primary effect of advancing religious belief.

     Under the standard imposed by the RLUIPA, the court stated, "it is not a logical stretch," in predicting its practical effects, to "imagine a prison in which religious prisoners are allowed to wear religious headgear and religious icons, have ungroomed hair and beards, receive extremist literature from outside the prison, refuse to submit to general medical tests and vaccinations, keep religious objects in their cells, and receive special diets. Meanwhile, non-religious inmates in the same prison must be clean shaven, wear prison issued clothing, submit to medical exams, and eat whatever is provided in the cafeteria."

     The court found that the impermissible practical effect was to "grant religious and professed religious inmates a multitude of exceptions and benefits not available to non-believers," privileging religious inmates in the prison community.

     The trial court certified the issue of the constitutionality of the RLUIPA for immediate appeal to the U.S. Court of Appeals for the Fourth Circuit under 28 U.S.C. Sec. 1292(b), and an appeal is anticipated.

     Madison v. Riter, 2003 U.S. Dist. Lexis 1094 (W.D. Va.).

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Prison's denial, to high security Native American prisoner, of access to a "sweat lodge" did not violate his right to freely practice his religion, as denial was justified by legitimate security concerns.

     A federal trial judge has ruled that "no reasonable person could find that" denying a Native American prisoner, who is in the "most restrictive status at Wisconsin's highest security prison", access to a "sweat lodge violates the First Amendment." The court ruled that the denial of access was based on legitimate penological interests.

     On the plaintiff's claims that the defendant prison officials have denied him access to a number of other religious objects, such as a medicine bag, ceremonial drums, feathers, and a smoking pipe, the court found that the defendants had offered no evidence or argument concerning whether these denials are "reasonably related to legitimate penological interests," so that the defendants would be denied summary judgment. At the same time, the court also ruled that the defendants were entitled to qualified immunity from liability for money damages because the plaintiff could cite no prior case decisions "establishing that Native American inmates held in high-security status are entitled by the First Amendment to possess a medicine bag, ceremonial drums, feathers or a smoking pipe."

     Gonzalez v. Litscher, 230 F. Supp. 2d 950 (W.D. Wis. 2002).

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

     EDITOR'S NOTE: In the decision above, the trial court assumes that a rational relationship to legitimate penological interests is sufficient to support an action by correctional officials infringing on a prisoner's religious practices. This appears to ignore the passage of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc-1. That statute, in its text, requires that such actions be shown to be in furtherance of a compelling governmental interest and use the least restrictive means of furthering that compelling governmental interest.

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Sheriff's policy of conducting strip searches of all detainees arriving at county jail was "clearly" unconstitutional, and trial court indicates its opinion that reasonable suspicion of possession of contraband or weapons was required to conduct such searches on those suspected of felonies, as well as misdemeanors, but sheriff was entitled to qualified immunity from liability for such a search on detainee arrested for a felony, since it was not clearly established, in 1999, that this was a violation of the detainee's rights.

     A man involved in an auto accident was taken into custody on a federal arrest warrant for a person with the same name for bond jumping. He was unable to convince officers that he was not the person sought by the warrant. Once taken to the county jail, he was allegedly subjected to a number of separate strip searches before he was turned over to federal authorities, who determined that he was not the person sought in the warrant and released him.

     His federal civil rights lawsuit alleged that the county jail had a policy of conducting a visual strip search on all newly arrived detainees at the facility, without any requirement of reasonable suspicion that they were in possession of contraband, drugs, or weapons, and regardless of what offense they were charged with. A second strip search was conducted in a "bullpen" when jail personnel smelled cigarette smoke coming from the area and none of the inmates present would admit to having any cigarettes in an area where cigarettes were contraband.

     The trial court found that the jail's policy, based on evidence in the record, including officers' testimony, was to strip search all arriving detainees. It found that such a policy was "clearly" unconstitutional since at least 1994, based on prior caselaw. It also reasoned that the distinction between detainees being held for felonies or misdemeanors should not really alter the result, since some misdemeanors might involve acts giving rise to reasonable suspicion of possession of weapons, drugs, or contraband, and some felonies, such as forgery and securities fraud, might not give rise to such reasonable suspicion.

     At the same time, it ultimately ruled that the sheriff was entitled to qualified immunity from liability for the initial strip search conducted when the plaintiff arrived at the jail, as it was not "clearly established" in 1999 that it was unconstitutional to conduct strip searches of all persons detained for felony offenses. While the court found that the detainee's Fourth Amendment rights "were indeed violated by the automatic on-arrival strip search," those rights, as applied to a person such as himself, detained for a felony offense, were not clearly established at the time that the search was conducted. "The clearly established rights of others," those detainees accused of misdemeanors, "are," the court stated, "it seems to me, beside the point."

     The court also found that the plaintiff had not presented any evidence that would permit a reasonable finding of fact that the second strip search, for the cigarettes in the "bullpen," was conducted "pursuant to any policy at all," so that the court reserved judgment as to its constitutionality, and will hold further proceedings on the issue, as well as on the issue of a third strip search allegedly conducted as the detainee was being turned over to federal officers. On this third strip search, it was contested as to whether the strip search was conducted by jail personnel or by federal officers.

     Murcia v. County of Orange, 226 F. Supp. 2d 489 (S.D.N.Y. 2002).

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Officer was entitled to qualified immunity for conducting warrantless strip searches of five minors at juvenile home suspected of possession of drugs.

     A minor was removed from her parents' custody and turned over to the Kentucky Cabinet for Human Resources as a public offender after she was found guilty of possession of marijuana, second degree forgery, and fraudulent use of a credit card. She was subsequently placed in the Bellewood Presbyterian Home for Children, a facility approved by the state to provide care and treatment to juveniles. She resided in a cottage at the facility with other residents. Residents of that cottage admitted having previously used drugs while living at the cottage.

     Two staff persons observed the girls at this cottage "acting strangely" one evening after they went for a walk around the Bellewood grounds, and suspected that drugs might be the reason. They shared their concerns with police officers, several of whom arrived at the facility and proceeded to search the five residents' rooms for drugs. While drugs were not found, the officers did find a plastic baggy they believed may have contained drugs, prescription pills in one resident's garbage can, another baggy with a plant substance residue the officers thought might be marijuana, and a glass vial they believed may have been used as a pipe.

     At some point, one of the residents "insinuated" to the staff members and the officers that she might have drugs hidden in her undergarments. Based on this and the possible drug paraphernalia found, a female officer was summoned, and she conducted a visual strip search of each of the girls in her own room, with a female staff member present. The officer indicated that she would not perform a body cavity search without a warrant. Each girl was asked to first remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend over to allow a visual inspection of her rectal area. The officer never physically touched any of the girls during the searches, and no drugs were located on them.

     The resident who had "insinuated" that she might have drugs in her undergarments filed a federal civil rights lawsuit against the female officer, claiming that the strip search violated her constitutional rights.

     A federal trial court has ruled that the officer was entitled to qualified immunity from liability for the 1997 warrantless strip search.

[N]umerous cases, recognizing the special circumstances of prisoners, detainees, and probationers, have permitted warrantless searches under the special circumstances exception. [...] None of these cases would decide our question on the merits because adult prisoners are a different environment than teenagers in a juvenile facility. [...] In this case, the court finds it particularly relevant that [the defendant] officer [...] faced the need to search wards of the state at Bellewood, a juvenile facility. A juvenile detention center or home, like Bellewood, falls somewhere on the spectrum between a school and a prison.

     The court concluded that in 1997 it was not clearly established that a search warrant supported by probable cause was required to constitutionally conduct a strip search of a minor suspected of possessing drugs in a juvenile home or detention center. Based on the particular facts, the court found that the type and scope of the search performed on the plaintiff was "objectively reasonable," entitling the defendant officer to qualified immunity from liability.

     Reynolds v. City of Anchorage, 225 F. Supp. 2d 754 (W.D. Ken. 2002).

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Access to Courts/Legal Info

     Prisoner convicted of being an inmate in possession of a weapon and other charges was not denied the right to a public trial because the trial was held at the correctional institution. Facility constructed a courtroom in its visiting area which allowed members of the public to view the proceedings through windows opening onto the courtroom, giving visitors full audio and visual access to the proceedings. State of Oregon v. Cavan, 59 P.2d 553 (Or. App. 2002).

Defenses: Issue Preclusion (2 cases)

     Tennessee prisoner who unsuccessfully pursued prior federal lawsuit asserting essentially the same claim that his constitutional rights were violated by housing him in conditions exposing him to second-hand tobacco smoke and that he was subject to retaliatory transfer to a facility without a non-smoking section barred his present lawsuit in state court since the issues presented had already been decided. Sweatt v. Tennessee Dept. of Correction, 88 S.W.2d 567 (Tenn. App. 2002).[PDF]

     Prisoner could not pursue her claim that her retention in "TB hold" segregated housing, due to her refusal to submit to a tuberculosis test and prison's refusal to give her a requested vegetarian diet violated her right to religious freedom under the First Amendment. Both these claims could have been made in a prior civil rights lawsuit involving the same facts and same parties, but she did not raise them. Plaintiff, who had filed five "essentially similar" suits challenging these actions was enjoined from filing further lawsuits without prior court approval. Word v. Croce, 230 F. Supp. 2d 504 (S.D.N.Y. 2002).

Defenses: Judicial Bias

     U.S. magistrate judge's prior participation in settlement discussions in the case did not, by itself, require his recusal under 28 U.S.C. Sec. 455(b)(1) for "personal knowledge of disputed evidentiary facts concerning the proceeding." Magistrate judge does, however, recuse himself because a settlement was previously reached, and the current litigation required, among other things, resolution of a dispute between the parties as to the meaning of the settlement agreement, for which it was not beyond the realm of possibility that the magistrate judge could be called as a witness by either side and he was also concerned about the possible damage to the "appearance of impartiality." The case concerned a pre-operative transsexual prisoner's claim against the federal Bureau of Prisons seeking estrogen therapy. Black v. Kendig, 227 F. Supp. 2d 153 (D.D.C. 2002).

Disability Discrimination: Prisoners

     County jail inmate failed to state a claim for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq. when she did not specify which programs, activities, services, or benefits she was allegedly denied on the basis of her disability. Smith v. Franklin County, 227 F. Supp. 2d 667 (E.D. Ky. 2002).

Drugs & Drug Screening

      Disciplinary decision that prisoner violated rules prohibiting the unauthorized use of a controlled substance was supported by "substantial evidence," including two positive urine tests for the presence of opiates and evidence that the tests and the storage and handling of the samples was properly carried out. Herring v. Goord, 750 N.Y.S.2d 373 (A.D. 2002).

Employee Injury/Death

     Indiana state law did not impose any duty on the federal Bureau of Prisons to assist a diabetic employee who was involved in a fatal auto accident while driving home after becoming ill at work. Defendant had no responsibility to give him medical assistance, prevent him from leaving, or provide him with transportation home. No liability for employee's death under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a). Stockberger v. United States, 225 F. Supp. 2d 949 (S.D. Ind. 2002).

Escape

     Youth adjudicated a juvenile delinquent did escape from a "detention facility" within the meaning of a New York criminal statute, McKinney's Penal Law Sec. 205.10, subd. 1, when he jumped out of the window of a cabin at a camp operated by the N.Y. State Division for Youth. People v. Juarbe, 749 N.Y.S.2d 665 (Sup. 2002).

Frivolous Lawsuits

     Trial court did not abuse its discretion by dismissing as frivolous a prisoner's claim that he was subjected to cruel and unusual punishment by being woken during the night and having lights in his cell which were "too bright." No alleged facts were objectively harmful enough to constitute a violation of the Eighth Amendment. Woodruff v. Paulson, #02-8027, 51 Fed. Appx. 822 (10th Cir. 2002).

Mail

     A jail employee's alleged accidental opening of pretrial detainee's legal mail outside of his presence was insufficient to constitute a violation of his First Amendment rights. Appeals court also finds no violation of First Amendment rights in actions preventing detainee from sealing his outgoing personal mail because of jail policy of inspecting such mail for security risks. Beese v. Liebe, #02-1401, 51 Fed. Appx. 979 (7th Cir. 2002).

Medical Care (2 cases)

     Oklahoma jail reaches $385,000 settlement with prisoner who gave birth, in custody, to a premature child who died within hours. Lawsuit claimed that prisoner made repeated requests for medical attention which were ignored by the defendants A federal jury's verdict in favor of the defendants was overturned by the trial judge prior to the settlement. Smith v. Oklahoma County, No. 00-CV-512 (W.D. Okla. Dec. 11, 2002), reported in The National Law Journal, p. B2 (Jan. 27, 2003).

     Prison doctor who allegedly told prisoner that nothing was wrong with his wrist was not liable for deliberate indifference to serious medical need for treatment for fracture when the inmate did receive "prompt and substantial" care in the two months following the accident in which the injury occurred, including two wrist splints, x-rays, a bandage to wrap his wrist, and a wrist brace, as well as nonprescription pain medication. Additionally, prisoner was eventually taken to an orthopedic specialist for further care. Prisoner did, however, assert a possible federal civil rights claim against prison nurse who, allegedly against doctor's orders, confiscated his wrist brace and did not replace or repair it. Andrews v. Hanks, #01-1454, 50 Fed. Appx. 766 (7th Cir. 2002).

Parole (2 cases)

     Parole Board's statement to prisoner that he could apply for parole again after a period of eighteen months did not create a new parole eligibility date at the end of that period, but merely served to notify him that the board would not consider him for parole during that period of time. Edmond v. Hancock, # 2001-CP-01165-COA, 830 So.2d 658 (Miss. App. 2002).

     Prisoner's parole release date was properly rescinded when there was evidence sufficient to show that he engaged in "significant misbehavior" in violation of prison rules prohibiting prisoners from making harassing or intimidating phone calls. Bishop v. Smith, 751 N.Y.S.2d 82 (A.D. 2002).

Prison Litigation Reform Act: Exhaustion of Remedies (2 cases)

     Nebraska Supreme Court, in prisoner's lawsuit claiming that his rights were violated by being celled with another inmate who smoked tobacco, rules that Prison Litigation Reform Act's requirement, in 42 U.S.C. Sec. 1997e(a), that inmates exhaust available administrative remedies before pursuing federal civil rights lawsuits is an affirmative defense, rather than a necessary element of the plaintiff's claim. In reaching this ruling, the court overturned its own prior ruling in Pratt v. Clarke, 258 Neb. 402, 604 N.W.2d 822 (1999). Cole v. Isherwood, No. 8-00-665, 653 N.W.2d 821 (Neb. 2002).

     Federal trial court was required under 42 U.S.C. Sec. 1997e(a) to dismiss, without prejudice, prisoner's federal civil rights lawsuit over prison conditions when he had failed to exhaust available administrative remedies prior to filing suit but was in the process of doing so when the motion to dismiss was filed. McKinney v. Carey, #01-17436, 311 F.3d 1198 (9th Cir. 2002).[PDF]

Prisoner Death/Injury

     County was not liable for prisoner's death on the basis of alleged negligence in forcing the decedent to sleep near an inmate who was infected with tuberculosis, which was alleged to have caused his fatal pulmonary problems. County was entitled to immunity under Texas Torts Claim Act, V.T.C.A. Civil Practice & Remedies Code Sec. 101.001 et seq. Dismissal of claims against the county, however, did not bar deceased prisoner's wife from proceeding with her claim against a jail employee individually. Sykes v. Harris County, #01-00-01162-CV, 89 S.W.3d 661 (Tex. App. -- Houston [1st Dist] 2002).

Prisoner Discipline (2 cases)

     Evidence supported disciplinary hearing's conclusion that inmate was guilty of violating prison rules prohibiting trafficking in tobacco. Disciplinary board's statement that it believed the staff conduct report and investigation report to be true and accurate adequately informed the prisoner of the basis of its decision. Godby v. Hanks, #01-4307, 51 Fed. Appx. 592 (7th Cir. 2002).

     Prisoner could not pursue his federal civil rights lawsuit challenging his disciplinary conviction for destroying state property when he had not previously succeeded in setting the disciplinary conviction aside. Prisoner was precluded from doing so under the U.S. Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), requiring that a disciplinary conviction be set aside before a prisoner may pursue a claim under 42 U.S.C. Sec. 1983. Gates v. Vannatta, #01-3597, 51 Fed. App. 597 (7th Cir. 2002).

Prisoner Suicide

     Lawsuit for wrongful death based on prisoner's suicide which named health care provider as a defendant did not have to comply with medical malpractice lawsuit requirement of submission of an expert affidavit of merit. Correctional officers who allegedly failed to follow jail policies for monitoring and inspecting the prisoner's cell were not protected by qualified immunity from wrongful death action, as their duty of inspecting the cells on a schedule was "clear and certain," rather than requiring the exercise of personal judgment. Clark v. Prison Health Services, Inc., #A02A1014, 372 S.E.2d 342 (Ga. App. 2002).

Procedural: Discovery

     In lawsuit alleging that officer at juvenile correctional facility sexually assaulted a male minor prisoner, there was good cause to postpone the deposition of the minor plaintiff for a short time until after his release from custody in order to protect the minor from the possibility of further psychological harm. Williams v. Greenlee, 210 F.R.D. 577 (N.D. Tex. 2002).

Religion

     Native American prisoner's claims that his First Amendment religious rights and his due process rights were violated when his religious property, including fur and feathers, were destroyed by the "unauthorized act" of a prison employee were properly dismissed as frivolous. Due process claim regarding his property was barred because there was an adequate post-deprivation remedy for the loss of the property under Indiana state law. His religious freedom claim was barred because he did not allege that the confiscation of the property restricted his exercise of his religious beliefs or that the prison employee acted because of the religious nature of the items or to discriminate against his Native American religion. O'Banion v. Anderson, #01-4201, 50 Fed. Appx. 775 (7th Cir. 2002).

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

     Article: "Public Health Dispatch: Outbreaks of Community-Associated Methicillin-Resistant Staphylococcus Aureus (MRSA) Skin Infections --- Los Angeles County, California, 2002--2003" (February 7, 2003 issue of CDC’s Morbidity and Mortality Weekly Report). Addresses recent outbreaks in Los Angeles County, California of drug resistant staph bacteria that cause painful and potentially dangerous skin infections. In the Los Angeles County Jail, 928 inmates had wound infections of this type diagnosed in 2002. Patients were reported as having spider bites but subsequently were found to be infected with MRSA. Review of medical charts of 39 of the 66 inmates hospitalized with these infections indicated that all initially had skin infections, but 10 later had invasive disease, including bacteremia, endocarditis, or osteomyelitis. The Los Angeles County Jail is the largest jail system in the United States; 165,000 persons are incarcerated in the jail each year. The Los Angeles County Department of Health Services (LACDHS) issued recommendations for the diagnosis and treatment of skin infections in the jail and is working with the Los Angeles County Sheriff's Department to review policies and procedures on laundry, showers, environmental cleaning, skin care, and control of person-to-person transmission. According to published reports, jails in at least six states reported outbreaks of drug-resistant Staphylococcus Aureus, a strain of the common staph infection that can result in pimples, oozing boils, blood infections or pneumonia.

     Article: "The Protection of Inmates' Medical Records: The Challenge of HIPAA Privacy Regulations," By Wesley D. Bizzell, attorney in the Washington, D.C. office of Winston & Strawn. Addresses issues of compliance with the federal Health Insurance Portability and Accountability Act. The article notes that "Correctional institutions that are required to become HIPAA-compliant must do so by April 14, 2003. Failure to initiate the required policies and procedures may create substantial liabilities for the correctional institution in the form of Federal fines or inmate lawsuits."

     Library Catalog: The Federal Bureau of Prisons Library has an on-line searchable catalog. The BOP Library has nearly 5,000 books, Government documents, statistical and organizational publications covering all areas of corrections and other criminal justice topics. You may quickly search for books by author, title, or subject on the Library's automated public access catalog, Library * Solutions. More than 70 periodicals, including journals, magazines, newsletters, and major newspapers, are found in the collection. The periodicals are primarily criminal justice and sociological. A complete listing of all the periodical titles is provided on the BOP web page.

     Litigation Documents: U.S. Department of Justice reaches agreement with Louisiana regarding conditions at Louisiana's Juvenile Correctional Facilities.

     Publication: Developing a Jail Industry: A Workbook. 8/2002, NCJ 182506. PDF File ASCII Text File. (National Criminal Justice Reference Service).See also Business Planning Guide for Jail Industries. 8/2002, NCJ 165147. PDF File ASCII Text File.

     Publication: New Approaches to Staff Safety. Second Edition. Robert L. Thornton, National Institute of Corrections, January 2003. Identifies safety issues of greatest concern to workers in probation, parole, and pre-trial agencies, and lists resources available to promote a safer working environment. Presents safety-related training subjects and programs to assist community corrections administrators in evaluating their agency's training needs and developing their own training program. 145 pp. Accession no. NIC-011356. PDF format.

     Publication: Topics in Community Corrections. Annual series produced jointly by the NIC Community Corrections Division and Information Center. Annual Issue, 2002: Responding to Budget Cuts - Focusing on What's Critical. NIC Information Center, 2002. Nine articles covering a range of budgetary issues, including practical ideas on how to cut costs while maintaining a positive working environment. 54 pp. National Institute of Corrections (NIC) Accession no. NIC-period220. PDF format.

     Publication: Preventing Jail Crowding: A Practical Guide. Robert C. Cushman, 2002. Explains a methodology for jail population analysis that considers sources of jail crowding and dynamic factors affecting jail occupancy levels, chiefly admissions and length of stay. Discusses ways to reduce the inmate population in a crowded jail and use population data to support policy choices that maximize public safety and effective use of the jail. 12 pp. National Institute of Corrections (NIC) Accession no. 016720. PDF format.

     Publication: Correctional Health Care by Morris L. Thigpen, Director, National Institute of Corrections (December 2001). 594 pages in PDF format. (To download individual chapters, rather than the entire document, click here).

     Report: Centers for Disease Control issues report (published in the January 24, 2003 issue of CDC’s Morbidity and Mortality Weekly Report), on hepatitis C in correctional facilities, along with recommendations on prevention measures. See also telebriefing on the subject on CDC web page. The report indicates that at least 1.3 million inmates released from jail or prison in 1996 were infected with hepatitis C. That was 29 percent of the 4.5 million cases nationwide. The report also states that newly released inmates accounted for 35 percent of the 34,000 Americans with tuberculosis in 1996, and 13 to 17 percent of Americans infected with H.I.V. or AIDS.

     Report: Pelissier, B. M. (2002). Comparison of Background Characteristics and Behaviors of African American, Hispanic, and White Substance Abusers Treated in Federal Prison. Federal Bureau of Prisons.(.pdf format).

     Report: Pelissier, B, Camp, S. D., Gaes, G. G., Rhodes, W., and Saylor, W. (in press). Federal Prison Residential Drug Treatment: A Comparison of Three-Year Outcomes For Men and Women.

     Training Document: Managing Youthful Offenders in Adult Institutions. (National Institute of Corrections 1999). (includes lesson plans and participant guides in PDF format).

     Website: www.regulations.gov/  "Regulations.gov is the U.S. Government web site that makes it easier for you to participate in Federal rulemaking - an essential part of the American democratic process. On this site, you can find, review, and submit comments on Federal documents that are open for comment and published in the Federal Register, the Government's legal newspaper."

     Link: Selected resources in past issues.